Torts Outline—Partlett 2017

I. LIABILITY (Overview)
A. Triggered by fault- must commit some wrongful act to be liable
i. Fault is objectively ascertained by determining what the ordinary, prudent person would do in the
circumstances
ii. Liability must be based on legal fault—if an event is unintentional and cannot be reasonably
predicted, then not at fault
B. Bases for tort liability:
i. Intentional conduct: acting with the purpose of bringing about a consequence or acting with
knowledge that the consequences are substantially certain to occur
ii. Negligent conduct which creates an unreasonable risk of causing harm
iii. Strict liability for abnormally dangerous activities (e.g. blasting) – doesn’t need to be intentional
or negligent; applies automatically due to nature of activity
C. Rationale: public policy—promote/protect societal peace by encouraging responsible behavior and
deterring wrongful conduct
D. Trespass v. Trespass/Action on the Case:
i. Trespass: for direct and forcible injuries to person or property
ii. Action/Trespass on the Case: for indirect injuries to person or property

II. INTENT
A. Rule: act intentional if actor had purpose or knowledge intent
i. Purpose intent: acting w/ intent to cause result of your action (e.g. push someone so they fall)
o Purposefully invaded bodily harm—actor intended to make contact (directly or indirectly),
even if actual result wasn’t intended
ii. Knowledge intent: actor knows the consequences of his action are substantially certain to occur
(i.e. that performing the act would lead to invasion of bodily harm)
iii. Intent ≠ Motive: intent is desire to cause immediate consequences; motive is the actor’s reason or
cause for acting
B. The consequences of one’s action need not be intention or substantially certain, just need to intend or know
that you would invade the interests of the other person
i. Ex: ∆ intends to tap π on chin lightly to annoy her. The π has a glass jaw and it breaks ∆ still
liable for tort since he intended to contact, even though he didn’t intend jaw to break
C. An insane person or child can be liable if they intend to make contact
i. When a child commits a tort w/ force, he’s liable to be tried as an adult (Garratt)
ii. Children may be capable of intentional torts even when too young for negligence
iii. An insane person can intend harm or offense through his deliberate actions (Wagner)
iv. If insane person acts to intentionally harm another person’s property or ‘person,’ she’s liable just
like a normal person would be (McGuire- insane person attacked caretaker)
D. Mistake: A party held liable for damages caused by mistake, even if they acted in good faith (Ranson)
E. Transferred intent: applies when a person intends to commit a tort against a person, but instead (a) commits
a different tort against the intended person, (b) commits the tort he intended, but against a different person,
or (c) commits a different tort against a different person (see (iii) below for an example of (c))
i. When this happens, the actor’s intent to commit a tort against the person is transferred to the
other tort or the injured person, whichever applies
ii. Transferred intent may be invoked only where the tort intended AND the tort that resulted (if
they’re different) are both within this list: assault, battery, FI, and trespass to land or to chattels
iii. Ex: A swings a bat at B, intending to scare B. But A accidentally hits C in this process. A
intended to commit assault on BA’s intent transfers to C and A’s act constitutes battery on C.

III. INTENTIONAL TORTS: intentional interference w/ person or property

A. Prima Facie Case for Intentional Tort Liability:
i. Act: a volitional (i.e. voluntary) movement on ∆’s part
a. If you trip, and hit someone in the process of falling, still counts as volitional
b. Hitting a bystander while you were having an epileptic episode is not volitionalnot a tort

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 ii. Intent: ∆ intended to make contact, intended the consequences of one’s action, or knew w/
substantial certainty they’ll result
a. The actor need not intend injury (e.g. ∆ injured π while trying to help him, but ∆ may still
be liable if he intended to make the contact and caused the harm)
iii. Causation: the result that gives rise to liability must have been legally caused by ∆’s act or
something that ∆ set in motion.
a. ∆’s action/conduct must have been a substantial factor in bringing about the harm
iv. Consent: π did not consent (impliedly or expressly), or π’s consent was invalidated
B. Battery: intentional infliction of a harmful or offensive bodily contact upon another
i. Elements:
a. Intent to make contact w/ the person
 But ∆ needn’t have intended his contact to be harmful/offensive to π, nor have
intended the actual consequences which resulted
 Ex: pretend you’re going to punch someone, then actually hit them accidentally
b. ∆ makes “bodily” contact w/ person which is harmful OR offensive
 Harmful: contact produces bodily harm (pain, injury, disfigurement, etc.)
 Offensive: the contact violates a reasonable sense of personal dignity
i. Would be considered offensive by a reasonable person
ii. π hasn’t expressly or impliedly consented to this contact
iii. If contact is rude, angry, or insolent (Wallace)
 Anything connected to the person is considered part of their ‘person’ (something π
is wearing or holding, like a cane or clothes) don’t have to literally touch them
 ∆ is liable for ‘direct’ and ‘indirect’ contact: liable for doing or for setting in
motion the thing which causes the injury to the other person
i. Ex: H struck a glass door so that the breaking glass would cut B (indirect)
ii. Ex: When ∆ pulls chair out from under π, if he knew w/ substantial
certainty that when he moved it, π was about to sit down there and would
fall on the ground instead, then he’s liable for battery
 Often prior course of conduct btw/ parties indicates they accept contact that would
ordinarily be offensive (e.g. to a stranger)  may presume consent to such contact
c. Causation: ∆ must’ve legally caused the battery by his act or something he set in motion
ii. Reasonable person standard applies: question is whether an “ordinary person not unduly sensitive”
would be offended
a. Ex: Sleeping Beauty- if a reasonable person who was awake would reject the contact (i.e.
consider it offensive), then it’s battery
b. Contact which is customary to ordinary daily life in today’s world is not battery
c. Incidental touching in sports (e.g. slapping teammates on butts) is not battery
d. Exception: if the ∆ knows that the π rejects certain contact that an ordinary person would
tolerate, this knowledge would likely make him liable
iii. Physical injury is not necessary, as long as contact was involved (∆ interfered w/ π’s interest)
a. Forcefully dispossessing a person of something they’re holding/wearing in an offensive
manner constitutes battery—invades the personal dignity of the person (Fisher)
iv. A victim doesn’t need be conscious of the battery when it occurs (e.g. unauthorized surgery)
v. State has immunity from battery charges
vi. Damages: it’s not necessary that π prove actual damages in order to make a prima facie case
a. A π may recover at least nominal damages even if π suffered no severe actual damages
b. In most jrxs, punitive damages may be recovered when ∆ acted w/ malice
c. Damages recoverable for mental suffering in willful battery cases (even w/o physical harm)
C. Assault: intentionally causing an apprehension of an imminent harmful or offensive contact or attempting
to commit a battery
i. Elements:
a. ∆ acted (a) in order to create in π a reasonable apprehension of imminent harmful or
offensive contact, or (b) knew w/ substantial certainty that this apprehension would result
 π must have been aware of the threat that ∆ posed (*distinguish from battery*)
 Apprehension ≠ Fear: fear alone is insufficient and not required, need to anticipate
that contact will occur – apprehension is like belief/expectation/anticipation
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  No actual contact or harm necessary, ∆ just needs to put π in apprehension of
imminent battery
i. Ex: brandishing an unloaded gun, but π thinks it’s loaded=assault
 Threat must be immediate: not assault if it’s a threat of future contact or ∆ is too
far away to do any harm
 Words alone generally don’t qualify as assaults- need some sort of overt act too
i. Conditional threat may be sufficient, but ∆ must have used or threatened
to use unreasonable force (e.g. X points a gun at Z and says “your $$ or
your life”)
ii. Orally threatening battery, while also clenching fist, grabbing a shovel, etc.
 ∆ has the apparent present ability to bring about such contact -∆ may not actually
be capable of it, but π must reasonably believe that he could (e.g. unloaded pistol,
but π had no way to know it wasn’t loaded)
i. When ∆ clearly cannot effect the contact he threatens, not reasonable (e.g.
Western Union- impossible for ∆ to reach across counternot assault)
b. ∆ intended to (a) cause an apprehension that he was about to commit a battery, OR (b)
actually make contact (i.e. commit a battery itself)
 ∆ must have an intention to invade the interests or bodily integrity of another
 ∆ need not have intended to actually carry out a battery
 Not required to have hostility, malice, or intent to harm
 Transferred intent can apply (e.g. throw a rock at X, but Y thinks they’ll be hit)
c. Causation: π’s apprehension must’ve been legally caused by ∆’s act, directly or indirectly
ii. Reasonable Person Standard is what courts normally use
a. Based on an ordinary person who is not unduly sensitive
b. The π must have reasonably perceived that there was a threat of battery
c. Courts generally don’t accept exaggerated fears
d. Exception: ∆ knows of the unreasonable fear and intentionally uses it to put π in
apprehension
iii. Rationale: We want to deter antisocial behavior in society need to show it’s unacceptable to
intend or attempt to harm another or make them fear for their safety
iv. Damages: π can recover nominal damages + most states allow punitive when ∆ acted maliciously
a. π doesn’t need to prove actual damages to sustain a prima facie case for assault

D. False Imprisonment: the direct restraint by one person of another person's physical liberty without
proper legal justification; ∆ intentionally confines the π
i. ‘Confined’= π’s will to leave a place w/ fixed boundaries is overcome in a way that would
overcome the will of an ordinary person in π’s position
ii. Elements:
a. Intentional and actual confinement of π by ∆ π
 ∆ must intend, or know w/ substantial certainty, that his actions or omissions will
result in π’s confinement
 ∆ must have been an active and knowing participant in procuring or instigating the
confinement, including its wrongful aspect
 ∆ imprisoned π w/o sufficient legal justification
 Transferred intent applies (e.g. ∆ intends to confine X, but confines π in process)
 π must be confined within definite physical boundaries (e.g. blocking a path not
enough)
b. Causation: π’s confinement must have been legally caused by the defendant’s act or
something set in motion thereby, either directly or indirectly
c. Awareness or harm required: Generally, π must have been aware of the confinement
when it occurred OR π must have been harmed by the imprisonment
 If there’s sufficient evidence that π was conscious during his imprisonment, the π
having present awareness is unnecessary to make out a prima facie case (Parvi)
 If π was actually injured by confinement, it’s sufficient (e.g. babies; incompetent)
d. The π had no reasonable means of escape, for instance:

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  Escape would require indecent exposure (e.g. ∆ steals π’s clothes while he’s
swimmingπ would have to go naked this is FI)
 Escape would pose danger/harm to oneself, one’s clothing, or another person
 There’s an alternate means of escape, but π doesn’t know of it and it isn’t apparent
e. Must be against π’s will
 Actual or apparent physical barriers, physical force, credible threats of force, and
duress are sufficient to vitiate π’s consent
i. Mere moral or social pressure isn’t sufficient to vitiate consent
 It’s still FI if π consented to the situation initially, but was confined later (e.g. in
Whittaker, π consented to the voyage, but upon arrival, she wasn’t allowed a boat
to go ashore—∆ had a duty to release/aid her)
iii. Immaterial/irrelevant factors:
a. Whether the confinement is enjoyable/comfortable or it’s a prank/joke
b. The length/brevity of confinement, except this matters as to the extent of damages
c. Whether π resisted or tried to escape: the π doesn’t have to resist physical force being
applied to her nor “test out” resistance/escape when the ∆ threatens to use force and has the
apparent ability to carry out the threat
iv. Methods that Constitute Imprisonment:
a. Physical Barriers: ∆ uses physical barriers to confine π
 Doesn’t mean ∆ has to exert physical force, just confines π somehow
b. Physical force or immediate threat of force exerted over π, a member of π’s immediate
family, or π’s property
 Ex: ∆ wrongfully takes π’s purse and refuses to return it, and π won’t leave w/o it,
then probably FI
 Ex: ∆ tells π that he’ll shoot π’s son if he tries to escape
c. Failure to provide a reasonable means of escape (ex: π trapped on a yacht and ∆ won’t
allow her to use the boat to get to shore, but too dangerous to swim—Whittaker)
v. Invalid use of legal authority (or lack thereof) constitutes FI if it results in confinement of π
a. False arrests: π taken into custody by someone who doesn’t have proper legal authority to
arrest π, but he claims to (Enright)
b. Unnecessary and unreasonable use of force (in making arrest or thereafter)
c. Not FI if there was a valid warrant or probable cause to arrest
d. But subsequent conviction of a crime doesn’t justify falsely arresting her for something
else (Enright v. Groves – π was arrested for not showing ID (not a crime), not for her
violation of dog leash law FI)
vi. Exception to FI: shopkeepers may have a privilege (of recovery of property) to detain persons
suspected of shoplifting for a reasonable time for investigating
vii. Rationale: Free will is a basic core interest—the restriction of this interest and one’s ability to
move is an issue of personal dignity that we want to protect
viii. Damages: If the FI caused actual damages + was wrongful, intentional, & in violation of the π’s
rights (or was motivated by malice), then π may get punitive damages (Big Town Nursing Home)
a. Factors: length of confinement, whether personal injuries caused, etc.

E. Intentional Infliction of Emotional Distress (IIED)

i. Elements:
a. Intentional or reckless conduct
 In acting, ∆: (a) intended to cause π severe emotional distress, (b) knew that his
action was substantially certain to inflict ED, (c) ∆ acted recklessly
a) Intention exists when ∆ acted w/ the purpose of causing ED, or w/ the
knowledge that ED was substantially certain to be produced by the conduct
b) Reckless: ∆ acted in total disregard of the likelihood that his conduct
would cause ED
b. ∆’s conduct was extreme and outrageous
 Conduct must exceed the bounds of decency tolerated by society
 A reasonable person in the community would regard the conduct as showing a
complete denial of or disregard for π’s dignity as a person
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  Mere insults, threats, indignities, annoyances, or petty oppressions don’t constitute
IIED (e.g. ∆ mocked π’s stuttering; employee said customer stank not IIED)
 Jury is in a better position than judge to determine whether conduct is extreme and
outrageous
c. Causation: there must be a causal connection btw/ the wrongful conduct and the ED
 Act must be a substantial factor in bringing about the ED if there are multiple
potential causes/alternate possibilities
 Prior conditions: where emotional issues were present before the incident, need to
establish that the conduct in question clearly worsened the prior condition (Harris)
 Need close temporal relationship btw/ conduct and ED (almost immediate)
d. Proof that π suffered severe emotional distress (*not an element in other intentional torts*)
 Severe if no reasonable man could be expected to endure it; severely disabling
 Severity measured by intensity and duration:
i. Intensity – so intense one is unable to function; can’t attend to necessary
matters
ii. Duration – must be sustained, not episodic
ii. Standard: ∆’s conduct must be calculated to cause severe ED to a person of ordinary sensibilities,
unless ∆ has special knowledge or notice of π’s condition/sensitivity
a. If ∆ was aware that π is unusually sensitive or highly vulnerable (e.g. extreme fear of rats)
and targets the sensitivity/fear, this would increase the likelihood of ∆’s liability
b. If the relationship btw/ the parties is such that ∆ exerts real or apparent power over π, then
∆ more likely to be found liable
iii. Bystanders: X beats Y while Z is present. For X to be liable to Z for IIED, X needs to have had the
intent to cause distress to Z, or known that his actions were substantially certain to inflict ED on Z.
a. This means X needed to be aware of Z’s presence when he beat up Y
b. Even is π wasn’t present, if ∆ had a design/purpose to inflict ED on π, ∆ may still be liable
iv. Context/Exceptions to general standard for IIED:
a. Common carriers and innkeepers owe a special duty to their patrons  will likely be liable
for acts that aren’t as extreme or outrageous as the ordinary standard requires
b. Competition among businesses provides an incentive to treat customers w/ dignity don’t
usually need a liability to deter b/c the competition influences their behavior (Slocum)
c. Ex: Speech/rally on a public sidewalk, though insensitive and outrageous, wasn’t
considered IIED (b/c they were exercising their free speech + not targeting the π)
v. Cause of action established when a person (w/o privilege) subjects π to the mental suffering that
comes from serious threats to π’s well-being regardless of whether the threats constitute assault
a. No actual physical harm to π is required for π to have an action for IIED
b. Transferred intent is NOT available in IIED cases
vi. Rationale: people have a right to be free from intentional interference w/ their dignity and physical
well-being
vii. Actor liable for the severe ED he caused, as well as any bodily harm that resulted from it (Siliznoff)
a. Punitive damages may be awarded when ∆’s conduct was improperly motivated

IV. PRIVILEGES OF DEFENSE (Defenses to Intentional Torts)

A. Privilege of Consent: If π validly consented to act/conduct, then no tort liability
i. Express Consent: π has expressly shown a willingness to submit to the ∆’s conduct (subjective)
ii. Implied Consent: consent implied by conduct, custom, or circumstances (objective)
a. Apparent: a reasonable person would infer from π’s conduct that she was consenting
b. Consent inferred from custom/usage
 A person presumably consents to ordinary contacts of daily life
a. Ex: Somebody who voluntarily engages in a contact sport impliedly consents to the
contacts (and customary touching) inherent in playing it
c. Silence and inaction may imply consent when the circumstances are such that a reasonable
person would speak if she objected + lawful—circumstances indicate her consent
 Ex: silence in O’Brien- π didn’t object to the injection, raised her arm for it
 Ex: no physical or oral rejection to person saying “I’m going to kiss you”
d. Overt acts and outward manifestations may demonstrate such consent or lack thereof
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  Unexpressed feelings or intentions do not defeat consent
 Must have evidence that the other party had reason to know consent wasn’t given
iii. We assume that the person (π) is reasonable—don’t take idiosyncrasies into account
iv. Medical care providers can act w/o express consent in emergent situations where:
a. There’s a risk of serious bodily harm if treatment is delayed
b. Patient is unable to give consent (unconscious, incompetent, intoxicated, mentally ill)
c. A reasonable person would consent to treatment under the circumstances, and
d. The medic has no reason to believe the patient would refuse treatment in this instance
v. No Capacity to consent: for children, incompetents, and intoxicated, consent is required
a. Parent’s consent is necessary for any medical procedure on a child, except in emergencies
b. Exception: consent is implied when emergency requires that immediate action be taken, and
i. The π is incapacitated- unconscious or otherwise unable to validly consent
ii. A reasonable person would consent to treatment under the circumstances
iii. The actor (e.g. Dr.) has no reason to believe π would object to the treatment
vi. Doctrine of informed consent: requires doctors to disclose all material risks of a proposed operation or
treatment to the patient, otherwise may be liable for battery
a. Non-disclosure: most courts hold a Dr. was only negligent when he fails to mention possible
consequences, although if the risk is very grave/severe, it may be battery
b. Rationale: we don’t want Drs. making decisions about what’s best for patients w/o consent b/c
they may be wrong/go against patient’s wishes
vii. Consent invalidated—a person’s consent may be invalid when:
a. Actor exceeds the consent given: ∆’s privilege is limited to the act/conduct consented to, or acts
substantially similar in nature
 If action is unauthorized, then unlawful, even if beneficial (Mohr)
 Sports: players consent to contacts inherent in sport, but not to intentionally inflicted
injuries or egregious acts which violate the rules (Bengals)
 Sometimes π is held to have assumed the risk of rule violations and can’t
recover, but this is usually only where violation was negligent, not intentional
or reckless
 e.g. if π consents to fistfight, can’t recover because he suffered heart attack in the
process, but can if ∆ pulls a knife
 e.g. π consents to surgery and complications that may arise during it (which they were
informed of), but not a different surgery (Mohr: wrong ear) battery
 Exception: in emergencies, a Dr. is justified in treating w/o consent (e.g. if Dr. severs
an artery in surgery, he can do what’s necessary to remedy the problem- not liable)
b. Consent obtained under duress invalidates consent
c. Fraud or misrepresentation may invalidate consent: when ∆ fails to disclose, misleads, or lies
about an issue which consent is based on (i.e. essential to consent), then he’s likely liable
 Consent based on a fundamental misunderstanding is not true consent
 Ex: man doesn’t tell a birthing mother that he’s not a doctor, but she
reasonably thought he was (De May)
 Consent negated when a Dr. misrepresents the existence or probability of a risk, or
fails to disclose consequences he knows will occur
 When misrepresentation is of a collateral matter, it doesn’t invalidate consent
d. Withdrawal of consent consent invalid (e.g. if a patient withdraws consent, the Dr. must
conduct a new informed consent discussion, and cannot rely on previously given consent)
e. Criminal Acts: the majority view is that consent is invalidated if the act is a crime
 Minority view: consent is effective except when the criminal statute is to protect
people from their own poor judgment (e.g. statutory rape, illegal boxing)
viii. Abortion: most jrxs accept consent given my mature teens, even if she’s a minor
a. Children of failed abortions can’t sue mother if mother consented to the abortion
ix. Need to consider context/environment under which action took place (e.g. sports—customs and rules)
a. People are subject to prevailing social norms of a time and place
b. The beneficial nature, good faith, etc. of conduct should be taken into consideration (Mohr)
x. Unauthorized or unlawful touching of π which is offensive or harmful, except in the spirit of
pleasantry, may constitute battery (e.g. Dr. performs a surgery w/o permission or emergency)

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 xi. When ∆’s action is unauthorized, the remedy should reflect the character and severity of the invasion

B. Privilege of Self-Defense: A person who reasonably believes he’s being, or is about to be, attacked is
privileged to use whatever reasonable force is necessary to defend himself against the imminent battery
i. Reasonable force: what is or appears to be necessary to protect against the (threatened) bodily harm
a. Force used should correspond with what is occurring/what is threatened
b. Relevant considerations: differences in age, height, size, and/or strength; aggressor’s
reputation for violence; presence/absence of weapons
c. Use of deadly force is unreasonable unless victim reasonably believes he is in danger of
similar harm being used against him (i.e. at risk of serious bodily harm or death)
 If the victim uses deadly force against an aggressor who did not use or threaten to
use deadly force, the initial aggressor may be entitled to defend himself against it
ii. Reasonable belief/mistake: the person must have reasonably believed that the force was necessary
protect himself from the battery, even if there was in fact no necessity
a. Ex: ∆ injured π by mistake b/c he thought π was the person who intended to harm ∆ the ∆
wasn’t liable since it was a reasonable mistake (have to consider the circumstances)
iii. Risk of harm must be imminent: can’t defend against future harm (unless no other chance to)
a. Generally used when you can’t call upon the law (no time)
b. Self-defense ≠ Retaliation
c. Once battery is no longer threatened, the privilege terminates liable for action thereafter
iv. Retreat:
a. The initial aggressor has a right to defend himself against the person he originally threatened
after he retreats (b/c once threat is terminated, initial victim no longer has privilege)
b. Majority view: the ‘victim’ may stand her ground and use any force necessary to defend
herself against threatened battery, even if retreat is possible
c. Minority view: one must retreat from aggressor if it can be safely done, except in one’s home
v. Oral provocations (e.g. insults, threats) generally don’t justify the exercise of self-defense
a. But if abusive words + actual threat of physical violence reasonably warranted an
apprehension of imminent bodily harm, privilege may apply
vi. Accidental injury to a 3rd party while a person is properly exercising self-defense won’t result in
liability unless the defender acted negligently or deliberately injured the 3rd party
vii. Self-defense is usually an affirmative defense that’s pleaded and proved by the ∆

C. Privilege of Defense of Others

i. Force used must be reasonable in the circumstances: generally can only use degree of force which is
sufficient to repel the attack
 Max amt. of force defender may use= force he could use in self-defense if he were the victim
ii. The actor must have reasonably believed the person he aided had the right to defend himself
a. Mistake impermissible: Some courts say ∆ only has privilege if the person he defended would
be privileged to defend herself (i.e. if no self-defense privilegeno privilege to defend her)
b. Reasonable mistake: Other courts say defender has privilege even if the person he defended
had no self-defense privilege, as long as his mistake was reasonable (2nd R.S. has this position)
iii. There may be a question over whether the defender should’ve taken the defense upon himself rather
than calling the police—law enforcement has mechanisms in place to defend others

D. Privilege of Defense of Property: may use reasonable force to lawfully protect one’s property from harm
i. Reasonable Force: must be reasonably necessary to the situation, as it reasonably appears to defender
a. The property owner generally can’t willfully or intentionally injure a trespasser by means of
force that would cause severe injury or death
i. Devices which are intended to or will likely cause serious harm or death are prohibited
unless trespasser is committing a violent felony that may endanger life (Katko)
b. Can’t use deadly force to defend property (e.g. can’t shoot an intruder who’s just on your land
and not threatening anyone’s safety)
c. Even if the infliction of injury was unintentional (i.e. only meant to frighten), the question is
whether the use of the weapon/force was reasonable under the circumstances

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 d. Exception: when the invader seriously threatens the personal safety of the defender or his
family, the defender may invoke the privilege of defense and use deadly force if necessary
i. E.g. can use force if ∆ committing a violent felony w/ potential of endangering life
ii. Other Limitations of Privilege:
a. Limited to unlawful intrusions—can’t defend property from those authorized to enter
i. e.g. Cops, those privileged by necessity (e.g. trespass during storm)
b. Limited to preventing the commission of a tort against one’s property: once the property is
stolen/the tort is complete, the privilege expires—you can’t retaliate (but see recovery (E))
iii. When invasion is peaceful + occurs in presence of owner, the defender must ask intruder to
leave/desist before the defender may use any force against him, plus give intruder time to obey
a. However, such a request is unnecessary if intruder’s conduct would indicate to a reasonable
person that it would be useless to request he leave or request wouldn’t be safely made in time
iv. Warnings: for non-deadly mechanical devices (e.g. barbed wire), owner must post warning of its
presence, unless the use of the device is so common an intruder should reasonably expect it
a. Most states hold warnings are insufficient for use of deadly force (including deadly devices)
v. Reasonable Mistake
a. Allowed when the mistake involves whether an intrusion has occurred or whether a request to
desist is required –in such cases, property owner’s mistaken use of force may be excused
i. E.g. if owner mistakenly, but reasonably, thought force was necessary, use of force
was privileged if there was a real unauthorized intrusion (e.g. slap non-violent burglar)
b. Owner liable for mistakenly using force against a privileged entrant unless the entrant
intentionally or negligently caused the mistake (e.g. cops who remained undercover)
vi. Dichotomy btw/ right to protect one’s property and the invader’s right to physical integrity

E. Privilege of Recovery of Property: right to retake property that is rightfully (legally) yours
i. The property must have been wrongfully obtained/stolen (i.e. doesn’t rightfully belong to taker)
ii. One must first demand the return of the property before any force can be used unless it reasonably
appears that such a demand would be useless or dangerous
iii. In recovering one’s property, one generally cannot:
a. Create a breach of the peace nor use unnecessary violence
b. Use deadly force nor force likely to inflict serious bodily harm (can only use reasonable force)
iv. Exception: Fresh Pursuit—force may be used when the rightful property owner promptly discovers the
wrongful dispossession and is fast + persistent in his efforts to regain the property
v. Shopkeeper’s Privilege: Shopkeepers/merchants have a privilege to reasonably detain individuals
whom they reasonably believe to be in possession of “shoplifted” goods
a. Both the grounds for detention and the actual detention must be reasonable
b. If guilty, there should be subsequent legal process in a reasonable time to protect liberty

F. Privilege of Necessity: Privilege to damage or invade an innocent person’s property when necessary
i. Individual property rights give way to higher laws of necessity
ii. This privilege applies in exigent or emergent circumstances:
a. When it’s necessary to avert threatened injury or disaster
b. Where the threatened harm/danger is substantially more serious than the invasion of property
that’s necessary to avoid it
iii. Scope: ∆’s reasonable belief that his act was necessary is sufficient, but his conduct must be reasonable
in light of the extent of the threatened harm in relation to the foreseeable damage to π’s property
iv. Public Necessity: based on utilitarianism; where the act is for the public good, the defense is absolute
a. E.g. destroying a home that will help spread a fire; shooting a rabid dog (protects community)
b. Private individual rights yield to societal interest in protecting public from imminent danger
c. Property owner cannot recover damages in such cases b/c the destruction was to protect the
public against exigent threats, especially when public officials do the damage
d. Rationale: making public officials liable for acts of necessity may have negative consequences
i. May ‘play it safe’ to avoid liability and endanger public by doing so
e. Exception: where necessity requires the taking of private property for a public purpose, the
property owner will receive compensation

8
 v. Private Necessity: where the act is solely to benefit 1 person, 1 person’s property, or a small # of
people, the defense is qualified  ∆ must compensate owner for damages resulting from invasion
a. Avoiding destruction to one’s property gives rise to privilege, but it’s limited to entry/trespass
and one must compensate for any damage resulting from the invasion
b. If an emergency is forced upon you thru no fault of your own, there’s a privilege to trespass
i. Owners must allow persons in danger to use their property—but get compensation later
ii. In extreme circumstances (storms, starvation, disasters, etc.), have privilege to trespass
iii. No time to bargain take now, pay later
c. Exception: decisions made in bad faith which cause injury—law imposes penalty of liability
vi. If the act is necessary, then have duty of ordinary care
a. If a person is performing a necessary act and did not intentionally or negligently inflict the
injury, then he is not liable (Kendall—in breaking up dog fight, ∆ accidentally injured π)
vii. If the act is unnecessary, then have duty to use extraordinary care
viii. No recovery when damage resulted from acts of God (i.e. forces beyond human control)
a. But when damage was deliberately done (e.g. person knew storm was coming and still stayed),
the property owner will recover (Vincent)

G. Privilege of Authority of Law: if legally authorized to do something that’s tortious otherwise, then not
liable
i. Who may generally act w/ authority of law: police officers, military personnel, prison officials,
regulatory inspectors, and officials at mental health facilities
ii. Generally, an invalid warrant won’t protect an officer from liability
o But officer still likely privileged if (1) the warrant is “fair on its face,” and (2) the court has
general jrx to issue a similar order
iii. Officer who makes a false arrest is liable unless he can show he acted w/ due diligence to identify the
person that he meant to arrest (reasonableness irrelevant)
iv. Arrest with valid warrant: police officer not liable unless he used excessive force or acted improperly;
officer must have carried out the order given to him
v. Arrest w/o a warrant: can be made by police or a citizen in order to prevent a felony OR a breach of the
peace when the act is happening, or it reasonably appears is about to occur in the ∆’s presence
a. Need reasonable grounds for thinking the felony is occurring/about to occur
b. Generally can’t make arrests w/o a warrant for misdemeanors
vi. Past crimes:
a. Officer or citizen can make arrest if he has info that provides reasonable grounds for thinking a
felony has been committed and that he has the right person
b. For a past breach of the peace, officer or citizen can arrest, but only if in fresh pursuit
vii. Citizens take on full risk of liability for FI if they were wrong (i.e. no crime or wrong person)
viii. Force used must be reasonable: Force used cannot be excessive under the circumstances
ix. Deadly force: only permitted to prevent a felony which threatens human life or safety and there appears
to be no other way to prevent the crime
x. Invasion of land: privilege of arrest carries w/ it the privilege to enter person’s land for the purpose of
arresting him
xi. False Imprisonment: one who makes an arrest w/o privilege may be liable for FI (e.g. false arrest)
xii. Social K exists btw/ citizens and the Gov. that police force will make arrests + maintain the peace

H. Privilege of Discipline: there are relationships in which the necessity of orderly discipline gives persons
who have control of others the privilege of exercising reasonable force and restraint upon them
i. Parents/guardians: privileged to apply reasonable force or impose reasonablr confinement which is
necessary for the child’s proper control, training, or education
ii. People temporarily responsible for the kids: privilege generally extends, but the amount of force that’s
acceptable may be less for this class
iii. Teachers: privilege is mainly based on the need to maintain reasonable order in the classroom and
school discipline may be exercised even though the parent objects
iv. Factors to consider: nature of punishment, conduct/behavior of child, age & physical condition of child,
disciplinarian’s motive
v. May be liable for use of excessive force
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 vi. Privilege of discipline more limited today due to child abuse concerns

I. Privilege of Justification
i. Generally, restraining or detaining others is privileged when it’s:
a. Reasonable under the circumstances + in time and manner
b. Imposed for purpose of (a) preventing another from inflicting personal injuries, or (b)
preventing damage of real or personal property that’s in one’s lawful possession or custody
ii. Actions taken must be reasonable—this can be determined by considering (Sindle- school bus):
a. The need to protect the persons and property under actor’s care
b. The manner and place of the occurrence (i.e. the circumstances)
c. Feasibility and practicality of alternative courses of action
d. The duty/privilege to apprehend those inflicting damage

V. NEGLIGENCE: ELEMENTS + FORMULA

A. Generally: A person acts negligently if she fails to exercise reasonable care under all the circumstances
i.Negligence may be from an act or an omission: doing something a reasonable person would not do or
failing to do something which a reasonable man would do, under the circumstances
ii. Testing for negligence is objective: what would a reasonably prudent person do under the same or
similar circumstances? (we don’t take into account irrationalities, intentions, etc.)
iii. The obligation to use reasonable care under the circumstances applies to all parties (π and ∆)
B. Elements: Requirements to have a cause of action in negligence (note: these elements overlap w/ each other):
i. Duty to use reasonable care
 There’s a general duty of care imposed on all to act as a reasonable, prudent person when
engaging in any activity—to not create an unreasonable risk of injury to others
 This is an obligation recognized by law
 To protect others from unreasonable risks, people must conform to a certain standard of
conduct
 Whether a duty is owed is a question of law for the judge to decide
ii. Breach of the duty—failure to conform to the required standard
 ∆ could have acted unreasonably but not be liable b/c he didn’t owe a duty of care to π
iii. Causation: must prove causation in fact + proximate cause
 Causation: A reasonably close connection btw/ the conduct and the resulting injury
 Causation in Fact: “but for” test or “substantial factor” test
 Proximate Cause: causal link btw/ breach and harm—foreseeability is the general measure
 Burden generally on the π to prove causation
iv. Actual damage/loss to one’s ‘person’ or property
 Proof of damage is an essential element of a negligence action
 Nominal damages can’t be recovered without proving actual damages

C. Aggravated Negligence:
a. Degrees of care: standard varies according to the risk (the more dangerous, the more care required)
i.
ii. Jury Instructions:
1. "The highest degree of care"
2. "The utmost caution characteristic of very careful prudent persons"
3. "Reasonable care" vs. "extraordinary care”
b. Degrees of negligence: courts DON’T recognize “slight” and “gross” negligence – only ordinary,
measured by the standard of the reasonable person
c. State of mind: willful, wanton, and reckless conduct creates an intermediate class of conduct between
negligence and intentional torts

VI. NEGLIGENCE: DUTY/STANDARD OF CARE

A. To Whom is the Duty of Care Owed?
i. General Rule: duty of care is owed to foreseeable plaintiffs
ii. The “Unforeseeable” Plaintiff Problem—Andrews vs. Cardozo (Palsgraf)
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 a. Andrews view (the dissent): liability relies on proximate cause (broader than Cardozo’s)
i. We all have a duty of care to protect society/world at large from unnecessary dangers
ii. When an unreasonable risk is taken, it’s consequences aren’t just confined to those
who were foreseeably injured—all who are injured by act have been wronged
iii. Injury was a probable result of the guard’s negligence (his unreasonable act) he is
liable for the proximate causes of the negligence, which includes π’s injuries
b. Cardozo view: the question of liability is one of the duty of care (more limited than Andrews’
view)
i. Duty of care owed to all persons who would be foreseeably injured as a result of the
negligence (= relatively limited sphere for duty of care)
ii. Actor’s conduct didn’t involve an unreasonable probability of invading π’s bodily
security (π wasn’t in the foreseeable “zone of danger”)
iii. There must be a duty for a negligence action to lie
iv. If no duty of care owed to π, then no liability (b/c nothing breached)
iii. Special Plaintiffs:
a. Rescuers: we generally extend the duty of care to a rescuer, so long as the rescue was
reasonable (not wanton)  makes rescuer a foreseeable plaintiff
i. Thus, ∆ is liable if he negligently puts himself or a 3rd person in peril and the π rescuer
is injured in attempting a rescue.
ii. The rescue doctrine may be invoked in products liability cases, requiring the rescuer-π
to prove that the ∆’s conduct was the proximate cause of his injury
iii. Ex: Ships on sea should reasonably go to the rescue of another, but should get
damages for doing so (cost of rescue, any damages, etc.)
iv. Rationale: law wants to encourage (reasonable) rescues b/c it often mitigates the
injuries/damages caused to the person/people rescued
v. Exception: the “firefighter’s rule” may bar firefighters and police officers from
recovering for injuries caused by the risks of a rescue (assumption of risk; plcy)
b. Fetuses: a duty of care is owed toward fetuses
i. The fetus must have been viable at the time of injury
ii. Most states allow a wrongful death action if fetus dies of the injuries
iii. *Unborn children addressed later*

B. The Reasonable, Prudent Person: an objective measure/standard

i. General rule: one should act as a reasonable man of ordinary prudence would act in the same or
similar circumstances
ii. Rationale: the rule of liability for negligence is a general deterrent on people
 Ultimately encourages those who engage in conduct which puts others at unreasonable risk of
harm to (a) modify their behavior or (b) reduce behaviors that pose such risk
iii. Average Mental Ability Assumed: ∆’s subjective intelligence is irrelevant—this standard doesn’t take
into account human failings (e.g. stupidity, voluntary intoxication, irrational, etc.)
iv. The Insane: generally must be held to same standard, but in some cases, insanity has precluded liability
a. Liability depends on the kind and nature of the insanity case-by-case analysis (by jury)
b. Permanently insane are liable for their torts
c. Exception: If insanity comes on suddenly, was previously unknown to him, and renders the
him w/o volition, then this may be a valid defense
i. There must’ve been no notice/forewarning to the person that he might suddenly be
subject to such type of insanity/illness
v. Responsibility: as a reasonable person, one must take precautions against dangers one’s responsible for
 Ex: responsible for parts of your car that would likely pose danger if flawed/faulty and would
be disclosed by reasonable inspection (e.g. tires) (Delair)
C. Exceptions to the Normal Standard:
i. Insanity exception in section above (iv)
ii. Higher skills/knowledge: A person who holds himself out as having higher skills or knowledge than
the ordinary person may be held to a higher standard of care for their abilities (R.S.-yes)
iii. Elderly: old person’s conduct generally measured by what conduct we would expect/consider
reasonable for a person suffering from the same or similar infirmities and advanced age
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 iv. Children: a child should act as a reasonably careful child of the same age, intelligence, maturity,
training, and experience would in such circumstances unless they are engaging in an inherently
dangerous activity if so, they’re held to an adult standard of care (Robinson)
a. Rationale for holding children to a different standard: to allow children to be children- we
don’t want to prevent children from engaging in safe/normal activities b/c it’s good for
their development and thus beneficial to society
b. Rationale for exception: hazardous to society—want to deter risky behavior
• Operation of dangerous machines requires adult care & competence
v. Physically disabled: standard- to act as a reasonably prudent person w/ that disability would under
the circumstances
- Ex: A blind person is entitled to have allowances made by others for his disability, but he
must act reasonably in the light of his knowledge of his disability. He doesn’t need to use a
greater degree of care than the ordinary man, just take precautions which the ordinary
reasonable man would take if he were blind (Roberts)
- Rationale: disabled people make up a lot of society + harmful to society to exclude them
o We want to encourage them to participate in society, even though it leads to some costs
vi. Sudden incapacity (e.g. heart attack, seizure): can be a complete defense to negligence unless ∆ had
reason to know of the condition (e.g. epileptic who knows her condition probably shouldn’t drive)
vii. Emergencies: a person in an emergency situation won’t be held to as high of a standard as he
normally would be
a. “Emergency”: occurrence/situation must be unforeseeable, sudden, & unexpected
b. Generally not liable for endangering others when your life is in danger
c. Must take into consideration that ∆ had to act quickly
d. Reasonableness of conduct judged by the context of the situation
e. If the actor negligently caused the emergency, doctrine generally doesn’t apply (but
normally still does for surgeries when something goes wrong, b/c foreseeable)
viii. Drivers: A driver owes a duty of care to his passengers because it's foreseeable that they'll be
injured in the event of a crash (also includes controlling dangerous passengers-Pipher)
ix. Common Carriers, Innkeepers: required to exercise a very high degree of care toward their
passengers and guests; i.e., they are liable for slight negligence

D. Customs/Standards: following/failing to follow isn’t dispositive, but can indicate negligence or lack thereof
i. Proof of common practice can aid in formulating the general expectations of society
ii. When certain dangers have been removed by a customary way of doing things safely, this custom may be
used to show that someone who hasn’t conformed to the custom has acted unreasonably
a. Trimarco: ∆ didn’t follow the industry custom for shatterproof glass; the costs of the harm that
can result from not following standard are higher than costs of conforming to it negligent
b. But in some cases, custom may be unreliable—may be due to saving $, tradition/refusal to
change, inertia, etc.
iii. Technological advances: Davison “guard rail” case later overruled because eliminating the risk became
much cheaper/technologically feasible

E. The Standard of Care of Professionals (Malpractice): doctors, lawyers, airplane mechanics, etc.
i. Professionals in General:
a. Standard: held to have the knowledge, training, & skill of ordinary member of the profession
a. The reasonable prudent person takes on the profession of the actor and an objective
standard is applied—profession generally set its own standards for their professionals
b. Not the “average” member: the professional must also use such superior judgment,
skill, and knowledge as he actually possesses
a. Standard NOT modified for professionals providing their services pro bono
b. Objective: can’t give a different standard for each individual person (Swift Wings)
c. Expert testimony is usually necessary, regarding the standard of care
a. Exception: don’t need if negligence is so grossly apparent that a layman would be able
to identify it (e.g. amputating the wrong limb)
d. There’s a sort of scale for considering professional performance:
a. The more discretionary the issue is, the more the court doubts its decision

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 i. e.g. choice btw/ forceps & C-section; very complex & confusing area of law
b. The more mechanical the issue is, the easier it is to hold professional liable for conduct
i. Ex: lawyer fails to meet the statute of limitations (clearly should know to)
e. Fiduciary duty: professionals who have this duty must exercise proper discretion to act
exclusively in the interest of client (e.g. director to act in interest of corporation)
f. 3rd Parties: sometimes the duty of care extends to 3rd parties (e.g. doctor gives patient
medication w/ a side effect of dizziness, but fails to mention it to patient patient drives home,
gets dizzy, and hits a 3rd party as a result Dr. may be liable)
g. Good results are not guaranteed – professionals NOT liable for an unsuccessful result, only for
the requisite skill/competence to be used under the circumstances
h. National Standard v. Local Custom (‘locality rule’)
a. Locality rule: the conduct of members of the profession is to be measured only by the
standard of conduct expected of other members of the profession in the same locality
or community
i. Developed when there was disparity btw/ rural areas and cities due to unequal
education—to protect rural professionals and hold city professionals to higher
standard
b. Many courts now holding the professional to the standard of reasonable conduct of a
professional in a similar community in similar circumstances
c. Boyce: Dr. must act within community norms in their treatment (∆ didn’t remove
ankle screw; expert testified the screw was standard method and not to be removed
unless it caused trouble; failure to take x-ray was not deviation from standard care)
d. Hodges: ∆s not negligent b/c they were following state custom
e. Morrison: the locality rule is irrelevant now since medical education is uniform and
standardized and communication and transportation has vastly improved
i. Locality rule may cause harm by fostering substandard care
ii. The standard of care is now to be measured by the national standard, at least
for board certified health care professionals
iii. Particularly common to abolish “locality rule” where D is a specialist
f. Issue of different access to resources, so the national standard only applies to the skill
of the professional since that's the controlled part—can only apply skill to the
resources available; not liable for not having the adequate resources

ii. Specialists: standard is modified to the minimally qualified member of that specialty or the standard the
specialist represents as having if she’s holding herself out as having higher skills
iii. Doctors/Medical Care Providers
a. Elements patient must prove for medical malpractice action:
i. ∆ failed to inform her adequately of a material risk before consent was obtained
ii. If she had been fully aware of the risks, she wouldn't have consented to treatment
1. This is difficult because hard to determine if real or hindsight bias
2. Subjective or Objective Standard for causation?
a. Scott court says subjective b/c point is for patient to make up her mind,
personally
b. Objective standard would be based on the what the reasonable patient
would do under the circumstances
iii. Causation in fact: The adverse consequences that weren't made known did actually
occur and cause harm, as a result of submitting to the treatment
b. Doctrine of Informed Consent: Requires the physician to fully inform the patient of all
material risks of the proposed treatments/surgeries + alternatives and recommendations
i. Scope of disclosure: can be based on professional standard or patient standard
1. Patient standard: communications must be measured by the patient's need to
know enough to enable him to make an intelligent choice
2. Professional standard: objective; based on what a reasonable physician would
do/disclose in the circumstances
ii. A risk is material if it would be likely to affect a patient's decision—this is a question
of fact for fact-finders to determine if a particular risk is open to debate

13
 iii. Physician must also disclose personal interests unrelated to the patient's health,
whether research or economic, that may affect the physician's professional judgment
iv. A physician violates a duty to his patient and subjects himself to liability if he
withholds any facts which are necessary for the patient to form an intelligent consent
v. Rationale: Patient has the right to determine what shall be done with her own body and
to make the ultimate informed decision
vi. Exceptions to full disclosure:
1. There’s no need to disclose risks that either ought to be known by everyone or
are already known to the patient
2. 'Therapeutic privilege'- Dr. may choose not to fully disclose because he
believes this would be detrimental to the patient's total care (comes from
primary duty to do what's in the best interest of his patient)
a. Ex: the disclosure would alarm a neurotic patient
3. Emergencies: when patient isn't in the condition to determine his own
treatment, doctor may invoke privilege of emergency doctrine not to disclose
vii. Causes of action for breaching the duty to get informed consent:
1. The performance of medical procedures without first having obtained patient's
informed consent, or
2. Breach of a fiduciary duty to disclose facts material to the patient's consent
viii. Battery: If Dr. exceeds consent, may be liable for battery
c. The "Medical Malpractice Crisis" and Statutory Change in the Common Law
i. Issues of high frequency of claims and the high severity of the claims
ii. High insurance premiums due to economic cycle of insurance industry—they aren't
getting sufficient returns from insuring (other say it's from the law of negligence)
iv. Attorneys: impliedly represent having certain skills and holding themselves to a certain standard when
they agree to represent their clients
a. Lawyer represents that: she has the requisite degree of learning, skill, & ability necessary to
practice the profession, she will use her best judgment, and she will exercise reasonable care
and diligence in the use of her skill and in the application of her knowledge to client's case
b. Lawyer not liable for mere error of judgment or a mistake in a point of law when:
i. He acts in good faith and in honest belief that his advice and acts are well founded and
in the best interest of his client, or
ii. The point of law he mistook hasn’t been settled by the highest court of his state and
reasonable doubt about the point of law may be felt among well-informed lawyers
c. Lawyer liable for loss sustained by client when he: lacks the degree of knowledge and skill
ordinarily possessed by others in his profession similarly situated; doesn’t use reasonable care
and diligence; or fails to exercise in good faith his best judgment in the litigation in his care
d. Causation: π must show that but for the attorney’s negligence, π would’ve won her case
e. If the negligence concerns in-court matters (e.g. poor cross-examination), judges are unlikely
to find attorney liable (b/c cross-ex is an art, the instincts of the client are unlikely to be good)

F. Rules of Law: Legal standards of prudent conduct must yield to facts of life—actions judged based on the
situation and the circumstances,
i. Old: Bright Line Rule—rule of law for the judge to determine (Holmes)
ii. New: Factor Balancing—standard depends on facts of the case—jury determines the facts (Cardozo)
a. Pokora v. Wabash Ry. Co – to get out of car to look and listen before crossing R.R. is
uncommon, futile, and dangerous; rule must account for specific facts

VII. NEGLIGENCE: VIOLATION OF STATUTE (i.e. Negligence Per Se)

A. In General:
i. Legislatures make laws and courts defer to legislature—but can be hard to determine legislative intent
a. Legislature has interest in protecting public welfare by preventing recognized hazards
ii. In considering statutes, pay attention to competence and constitution deference
iii. Common law is state-based; no "doctrine" of negligence per se in federal law
iv. Can federal statutes and regulations for criminal law be used in civil action? (see p. 224- #5)
14
 a. Yes, federal statute can lay down what's reasonable for standard of care
v. Need to establish causal connection between negligence and injury
B. 2 main issues in statute adherence:
i. When does a statutory provision impose the standard of care?
a. Did statute intend to protect from this kind of risk/hazard?
b. Does this person fall under the group that the statute was meant to protect?
ii. What exceptions and degree of fault are applied to those standards?
C. Applicability of a Statute:
i. A violation of a statute or regulation constitutes negligence as a matter of law (negligence per se) when:
a. The violation results in injury to a member of the class of persons intended to be protected by
the legislation,
b. The harm is of the kind which the statute was enacted to prevent, and
c. The standard as a measure of care for civil litigation is appropriate under the circumstances
ii. The violation of the statute is prima facie evidence of negligence
iii. The fact that the legislature adopts a criminal law does not automatically mean that courts must impose
civil liability as well—it must provide appropriate basis for civil liability
a. Some penal statutes may be too obscure to put the public on notice
b. Some penal statutes may lead to ruinous monetary liability for relatively minor offenses—
could lead to liability that’s too broad and wide-ranging—inappropriate and severe
D. Effect of a Statute:
i. Those who live in an organized society is under a duty to conform to standard of diligence violating
safeguards provided by law to benefit and protect others = failing short of standard of diligence
ii. A violation of a statute constitutes prima facie evidence of negligence, and this presumption may be
rebutted by offering an adequate excuse under the circumstances of the case
a. Such excuses can be found in R.S. § 288A (but not all excuses here) (p. 241)
b. Ex: Fairness- if there's sufficient excuse/justification, there is ordinarily no violation of a
statute and a statutory standard is inapplicable
 It would be unreasonable to adhere to automatic rule of negligence in situations where
following the statute would put person in danger
c. Ex: Logic- w/o a clear legislative mandate to extend liability, courts should be hesitant to do so
on their own
iii. There are certain types of statutes where we impose a very strict form of liability
a. Certain types of statutes are commonly interpreted to make the ∆ liable without regard to any
excuse to the violation—often referred to as negligence per se
b. Ex: child labor acts- minor under min. age can't work in certain occupations; Pure Food Acts
that prohibit the commercial case of adulterated food, etc.
c. Public policy- Legislature exercising its protective duty in posing strict liability for certain
causes of injuries

VIII. NEGLIGENCE: LIMITED DUTY OF CARE

A. Standard of Care Owed by Owners/Occupiers of Land
B.

IX. PROOF OF NEGLIGENCE: CAUSATION IN FACT

A. Proof of Causation and Sine Qua Non= “without which not” or “but for”
i. Rule: an act or omission to act is the cause in fact of an injury when the injury would not have occurred
but for the act.
ii. ∆’s negligence isn't actionable unless it's a cause in fact of the harm for which recovery is sought
iii. Need proof on the balance of probabilities that the negligence was a cause in fact or a proximate cause
of the injury for which recovery is sought
iv. The negligent act at issue is a substantial factor in bringing about the injury if the injury/accident
wouldn’t have occurred if it weren’t for the negligent act (e.g. excessive speed was a substantial factor
if the collision wouldn’t have occurred but for such speed)

15
 v. Once π has demonstrated that ∆'s acts or omissions have increased the risk of harm to another, such
evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in
turn a substantial factor in bringing about the resultant harm
vi. In cases where the issue is wholly beyond the range of the common experience and observation of judges
and jurors, medical testimony which is undisputed must be accepted and acted upon in the same manner
as other undisputed evidence is
o Otherwise, there would be no substantial foundation upon which to rest a conclusion
vii.
B. Concurrent Causes:
i. The “but for” test applies where several acts combine to cause the injury, but none of the acts standing
alone would have been sufficient (e.g., two negligently driven cars collide, injuring a passenger). But for
any of the acts, the injury would not have occurred.
ii. When separate acts of negligence combine to produce a single indivisible injury, each TF is responsible
for the entire result, even though his act alone might not have caused it—both are “but for” causes
iii. Where multiple causes concur to cause harm and either one would’ve been sufficient on its own to
cause the harm, then each of the events is a cause of the injury
iv. “Substantial factor” test – if a party’s actions were a material or substantial element in the harm
done, it is a cause in fact
v. Preemptive Cause: foreseeable results caused by unforeseeable intervening forces—∆ usually liable
a. The problem: ∆ is negligent because his conduct threatens a result of a particular kind that will
injure plaintiff. This result is ultimately produced by an unforeseeable intervening force. Most
courts would generally find liability here because they give greater weight to foreseeability of
result than to foreseeability of the intervening force. An exception exists, however, where the
intervening force is an unforeseeable crime or intentional tort of a third party; it will be deemed
a “superseding force” that cuts off ∆’s liability
b. Ex: A's fire headed to destroy P's house. While flood is on its way, person B releases dam,
which extinguishes A's fire. B's flood destroys P's house.
c. Ex: S is about to take a pill that will kill him. M shoots S right before he takes the pill.
vi. Additive Cause: both acts sufficient to cause the injury/harm, but they combine and do it together
a. E.g. If a fire set by A unites w/ a fire set by B, and either fire would have destroyed P's property
alone, there is joint and several liability
b. If we know A caused one of these fires, but we don’t know who caused the other, then A is still
liable (Anderson)
vii. "But for" ex: Avis rents a cart to me w/ no brakes. While I'm driving, a pedestrian crosses in front of me
and I don't try to brake. Who is responsible for the injury?
a. Need both causes (no brakes and failing to brake) to be sufficient for both to be liable
b. Can't formally show "but for" cause, but injury would have occurred but for either negligent act
– Avis' no brakes OR my failure to brake would have caused the injury  both liable
viii. Indivisible Harm: 2 people act to cause harm to P, but we don’t know who caused the harm
a. Ex: S and T (both ∆s) shoot at the same time and 1 bullet hits π. It’s impossible to determine
which ∆ the bullet belonged to both considered negligent and held liable
b. *the burden of proof shifts to the ∆s—they have to work out liability/apportionment themselves
(not the court’s problem) b/c an innocent injured party deserves redress
ix. Market Share Theory: amt. of liability determined by likelihood that this ∆ caused the injury
a. No joint and several liability, only several liability
o E.g. if 80% of manufacturers are gone, P can only recover 20% of total damages from
the ones who are still around
b. Ex: 5 drug companies, 1 of which is liable to π, but can’t identify which measure likelihood
the company caused injury by what % of DES they sold of the whole 100% sold for miscarriage
o E.g. if company A sold 20% of market share of DES for purpose of preventing
miscarriage = 20% likelihood they caused π’s injury liable for 20% of damages
c. Strong policy reasons for holding Ds liable:
o P was innocent of any wrongdoing and has no way of knowing which of the drug
manufactures caused her injury

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 o Manufacturers of such drugs should be culpable for producing a drug that has harmful
effects to future generations.
o Manufactures are in a better position to bear the cost of such harm and they are in the
best position to discover and guard against future harm

X. PROOF OF NEGLIGENCE: PROXIMATE CAUSE

A. In General: was the wrongful act the proximate cause of the injury?
i. Can't hold actor liable for everything that results after his action
ii. If no cause in fact, then no need to determine whether there's a proximate cause
iii. Basic formula: ∆ is liable if A, B, C, and D unless X, Y, or Z
iv. Proximate cause is (usually) a matter of fact for jury to decide
v. There may be more than one proximate cause of an injury, so more than one ∆ may be held liable
vi. Cause in fact vs. Proximate cause
a. Cause in fact: refers to cause and effect relationship btw/ D's tortious conduct and P's
injury/loss ="but for" consequences of an act
b. Proximate cause: concerns determination of whether legal liability should be imposed where
cause in fact has been established
c. *proximate cause is a concept that cuts off liability even though there's cause in fact*
vii. Proximate cause- policy decision (made by legislature or courts) to deny liability for otherwise actionable
conduct based on considerations of logic, common sense, policy, precedent, and justice
B. Unforeseeable Consequences
i. From wrongful acts, we have immediate results and remote results—only liable for direct results
ii. We draw the line of liability at foreseeable, immediate/direct risks for policy reasons
iii. General principle: every person is liable for the consequences of his own acts. Thus, he's liable in
damages for the proximate results of his own acts, but NOT for remote damages
iv. Ex: A party (e.g. R.R.) has no control over accidental and varying circumstances (like degree of heat,
direction of wind, etc.), so the party isn't liable for their effects (NY Central R.R.)
v. Thin-Skulled People: Actor is subject to liability for all harm caused to the person, even if the harm is of
a greater magnitude or of a different type than might reasonably be expected due to the person's pre-
existing condition or other characteristic
a. Generally, a D must take a P as he finds him and hence may be held liable in damages for
aggravation of a pre-existing illness/condition
b. There are also ‘thick-skulled people,’ whose injuries will be less severe than the avg. person—
Idea is that costs even out since there are both thin-skulled and thick-skulled people in society
vi. When ∆ breached a duty which constitutes negligence and the damage directly resulted from that
negligence, the anticipations of the negligent person are irrelevant—the fact that the ∆ directly produced
an unexpected result doesn't relieve him of the damage his negligent act directly caused
vii. Principle of civil liability: a man must be considered to be responsible for the probable consequences of
his act (to demand more is too harsh)
a. Whether the man ought to have foreseen the consequences of his act is based on the standard
of the reasonable man
b. *Wrongfulness of act and liability held must be proportional
viii. It isn't justifiable to neglect a very unlikely risk unless there's a valid reason for doing so (B > P * L)
ix. Learned Hand Test: B > P x L
x. Negligence isn't actionable unless it involves the invasion of a legally protected interest--the violation of
a rightthere must be a duty to P for a negligence action to lie (Palsgraf)

C. Intervening Consequences
i. Superseding cause: an intervening which cannot be considered to be reasonably foreseeable and which
should cut of D's liability
ii. May break the chain of causation no proximate cause no liability
iii. P's own conduct can constitute an intervening cause that breaks the causal connection btw/ D's
negligence and the injury
iv. "Acts of God”: an “extraordinary natural force” or "force of nature"—doesn’t relieve D of liability

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 v. General rule: where acts of a 3rd person intervene btw/ D's conduct and P's injury, the causal connection
isn’t automatically severed
a. Liability then turns upon whether the intervening act is a normal and foreseeable consequence
of the situation created by D's negligence
vi. Factors that may break causal connection--when intervening act is: (for jury to decide)
a. Extraordinary under the circumstances,
b. Not foreseeable in normal course of events, or
c. Independent or far removed from D's conduct
vii. An intervening cause can't serve as a superseding cause (and thus relieve actor of liability) where the risk
of the intervening act occurring is the very same risk which renders the actor negligent
viii. The mere fact that an intervening act was unforeseen will not relieve the ∆ guilty of primary negligence
from liability unless the intervening act is something so unexpected or extraordinary that it could not or
ought not to have been anticipated
ix. As a matter of law, an act of suicide is not a superseding cause in negligence law precluding liability
x. An initial tort-feasor may be liable for the wrongful acts of a third party if foreseeable
xi. The rescue doctrine may be invoked in products liability cases, requiring the rescuer-plaintiff to prove
that the defendant's conduct was the proximate cause of his injury
xii. Public Policy: interest of public policy must be considered in negligence rulings
a. 3rd Generation Tort – cause of action NOT RECOGNIZED for children with injuries caused
by preconception tort committed against mother while she was a fetus (Enright - DES case)
o Public Policy (against) - public interest in providing remedy for those injured by DES
not stronger than interest in providing remedy for those injured by other means. Also
liability would extend for generations, and such extensive liability might hinder the
creation/availability of important prescription drugs. Liability must be limited
o Foreseeability - While a reasonable person could foresee that injuries would occur to
those directly exposed to DES, it is more difficult to foresee that injuries would occur to
multiple later generations
b. Extension of liability: a host who serves liquor to an adult social guest is liable for injuries
inflicted on a 3rd party by guest's negligent driving when the guest's negligence is caused by
the intoxication (Kelly drunk guest leavescar crash; reasonable person could foresee injury;
duty imposed to prevent this risk)
o Public Policy (for) - reduce deaths, provide just compensation to victims, and provide a
deterrent
o Common Law View: drinker’s voluntary consumption/subsequent negligence was the
sole “proximate” cause of 3rd party’s injury; person who sold or gave liquor to an
intoxicated adult drinker not liable for subsequent injuries caused by intoxication
o Public Policy (against) - effect that a rule of social host liability would have on a
multitude of personal relationships

XI. NEGLIGENCE: BREACH OF DUTY

A. Factors to consider in deciding whether person exercised reasonable care under all the circumstances:
i. Predictability/Probability that actor’s conduct would result in harm/of accident occurring (‘P’)
 Conduct which is reasonable and unlikely to result in harm is not negligence
o Ex: merely creating access to an object that’s not inherently dangerous does not create
liability for negligence (Lubitz)
ii. Severity/Gravity of the potential harm or resulting injury (‘L’)
iii. Burden of taking adequate precautions which would eliminate or reduce the risk of harm (‘B’)
B. Learned hand’s test for determining liability: P * L > B= Liable (i.e. breach of duty of care)
o If probability times gravity is greater than the burden of precautions, then person is liable/breached duty
C. Negligence Per Se: when actor violates a statute/regulation --see section above
i. Most jrxs provide that a violation of a product safety statute or regulation makes the product defective as
a matter of law
ii. Violation of a specific standard issued under federal statutes (e.g. the Federal Hazardous Substances Act)
may subject ∆ to liability on a negligence per se or implied tort theory
D. Res Ipsa Loquitur (“the thing speaks for itself”)

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 i. The accident itself is evidence of D’s negligence (Byrne v. Boadle – falling flour barrel prima facie
ev.). Even if res ipsa applies, P must still show the negligence was a breach of duty to P
ii. Res ipsa loquitur, strictly speaking, has no application to strict liability cases (since negligence isn't at
issue), but the inferences that are at the core of the doctrine can apply to strict liability
i. The fact that a product failed in a way that caused injury may give rise to a permissible
inference that it was defective and that the defect existed when it left the hands of the defendant
("but for" test)
1. Ex: coffee maker caught on fire which had just been removed from the box and used
for the first time that day
ii. Just like in negligence cases, P must provide sufficient evidence to exclude other causes of
accident not attributable to product defect
iii. generally, P isn't required to prove a specific defect -- known as the "general defect" theory or
malfunction theory
iii. Accident occurred but NO DIRECT EVIDENCE OF D’S CONDUCT
iv. EVENT ORDINARILY DOESN’T OCCUR “BUT FOR” NEGLIGENCE (McDougald v. Perry –
spare tire; reasonable inspection of car would’ve prevented)
v. Preponderance of evidence – P mustn’t negate all other possible causes just prove > 50% probability
that D was negligent. P must negate probable, not all possible causes
vi. Experts – most courts permit them, despite their use seeming to contradict the “thing” speaking for
itself. But there may be holes needing expert explanation
vii. Multiple Ds – where P can show injury was probably caused by negligence of at least one D, but not
which one, RIL can sometimes apply
 (Ybarra– operation leads to paralysis; at least one doctor/nurse caused injury; RIL applied
because it would be unreasonable to expect P to identify the negligent actor, all actors
acted in concert and each had duty)
 *Each D bears burden of rebutting inference of negligence
viii. Special relationship – may explain Ybarra since all Ds were professionals. Where Ds were all
strangers, RIL generally not applied by showing at least one negligent
 Evidence of what really happened more available to D than P (e.g. Ybarra)
ix. EVENT WASN’T DUE TO P’S ACTIONS (most likely D’s negligence and not 3rd party)
i. Contributory negligence by P can negate this element
ii. ***Must show P’s negligence doesn’t lessen probability that D was also negligent (e.g.
walking too close to construction site doesn’t negate RIL where P is hit by falling beam, and
can show that doesn’t ordinarily occur without negligence by D)
x. D, NOT SOMEONE ELSE, WAS MOST LIKELY THE NEGLIGENT ACTOR (R.S.)
 Old Standard: Instrumentality causing injury was under exclusive control of D (Larson v.
St. Francis Hotel – chair thrown; hotel didn’t have exclusive control of furniture, guests
have at least partial control; accident possible despite D’s ordinary care)
 Restatement abandons “instrumentality” requirement – e.g. D’s brakes fail and hits P, no
RIL though D had exclusive control since negligence was probably manufacturer’s
E. Violation of a Statute –see section above

XII. DEFENSES TO NEGLIGENCE –see other outline + previously in this one

A. Contributory Negligence: ∆ claims that π’s negligent conduct also contributed to the cause of π’s injuries
B. Comparative Negligence
C. Assumption of Risk
D. Immunities
XIII. NEGLIGENCE: DAMAGES ---see outline
A. Personal Injury
i. We want to put the injured person back in the position they were in before the incident
ii. Proof of Causation: malpractice reducing patient’s chance of survival  what recovery can π get?
a. Pure Probabilities: recovery proportional to likelihood of D's negligence causing injury
b. Preponderance rule: % chance of recovery measured by overall likelihood of injury to π due to
∆'s negligence
 Less than 50% chance of survival can't get total recovery
 More than 50% chance of survival can get total recovery
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 c. Mixed Rule:
 Get up to 50% recovery if likelihood of negligence causing injuries is less than
50%
 Can get up to 100% recovery (including 100%) if likelihood of negligence causing
injury is more than 50%
d. Causing a reduction of the opportunity to recover (loss of chance) by one's negligence, doesn't
necessitate a total recovery against the negligent party for all damages caused by the victim's
death
e. Case of 14% reduction in chance of survival due to negligence in diagnosis: damages should be
awarded to the injured party/his family based only on damages caused directly by premature
death, such as lost earnings, additional medical expenses, etc.
f. Rationale: Public policy—we want to deter medical professionals from neglecting patients who
are likely to die this places responsibility on doctors in cases such as these
B. Physical Harm to Property
C. Punitive Damages
XIV. JOINT TORTFEASORS
A. Liability and Joinder of Defendants
i. JOINDER OF MULTIPLE Ds permitted when P’s claims arise from the same transaction or series of
transactions, and if any question of law or fact common to all Ds will arise in the action
a. Joinder permitted when Ds ACTED IN CONCERT, when Ds ACTED INDEPENDENTLY to
cause the SAME HARM, and when Ds acted INDEPENDENTLY to cause DIFFERENT
HARMS
b. Most jurisdictions permit P to join multiple Ds but DON’T REQUIRE P to do so. If P sues one D,
that D can’t compel joinder of others unless P consents D can always bring a separate suit for
contribution or indemnity against the others
ii. JOINT AND SEVERAL LIABILITY – each of several tortfeasors is liable jointly with the others for
the judgment against them, and each is individually liable for the full amount. P can collect from
any one of them or any group of them (i.e. the Deep Pocket) Tortfeasors act in CONCERT exposing P
to the same risk
a. ***“Active Agreement” is required – sufficient if there is conscious parallelism***
 (Bierczynski v. Rogers – street racers; one car crashes into P; both liable)
 All parties engaged in racing are “wrongdoers acting in concert.” Each is liable for
injuries caused because he has induced and encouraged the tort
b. Ds fail to perform COMMON DUTY to P (Principle/Agent)
Cases involving liability of 2 parties based on relationship (e.g. employer/employee)
B. Ds act INDEPENDENTLY to cause INDIVISIBLE HARM (CONCURRENT TORTFEASORS)
C. ***Where contributory negligence is replaced by comparative negligence, J&S Liability still applies
(most jurisdictions). Justifications:
i. P’s injury is “indivisible” in the sense that there was but one wrong and each D’s negligence is a
proximate cause of the entire injury
ii. P should not be forced to bear the risk of being unable to collect his judgment
D. ***Jurisdictions that retain J&S liability, Ds that pay more than their fair portion may recover from other
joint tortfeasors on either a pro-rata or comparative-fault basis
XV. MODERN TREND – if harm is DIVISIBLE and it’s possible to APPORTION damages per each D’s relative
contribution, each D is liable only for their share of harm (i.e. comparative negligence)
A. Pure Several Liability – each tortfeasor pays NO MORE than his apportioned share and the injured party
bears the loss of any uncollectible share
i. (Bartlett v. New Mexico Welding Supply – 3 car accident; 1 D only liable for 30%)
B. Modern trend is to view “indivisibility” as a fiction based on common law technicalities
C. Burden of Proof - When harm is divisible, the burden of proof shifts to Ds to produce proof as to who
was responsible, or all will be joint and severally liable***
D. Uniform Comparative Fault Act keeps joint and several liability but provides for determination of each
party’s equitable share of in accordance with his % of fault
E. 3rd Restatement – takes no position as to whether joint and several liability, several liability, or some
combo should govern liability of tortfeasors whose independent acts cause an indivisible injury
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 XVI. Hybrid Approaches have *replaced* pure joint-and-several liability in many states
A. Reallocation – all Ds are jointly and several liable, but if one D is judgment proof, the court reallocates the
damages to all other parties in proportion to their comparative fault
B. Threshold % - Ds who have over a certain % of responsibility remain jointly and severally liable, but
those with less than the threshold is only severally liable for their share
i. I.e. an insolvent D’s liability will be shifted only to those Ds over the threshold
C. Type of Damages – liability remains joint-and-several for economic damages, but several for non-
economic damages (e.g. in CA)
i.
ii.
D. Satisfaction & Release
E. Indemnity and Contribution
F. Apportionment of Damages
XVII. PRODUCT LIABILITY:
A. In General:
i. Purpose of product liability: safety, deterrence, and compensation
ii. Most of action is in "high impact" products
a. Medical products: pharmaceutical and medical devices
b. Motor vehicles: concerned primarily w/ crash worthiness
c. Asbestos (this is just 1 product)- creates illness in those exposed
iii. When consumer has choice of products and chooses the more unsafe alternative over the safe one,
manufacturer usually isn't liable (assumption of risk sort of)
iv. Why not just rely upon K for liability?
a. K law is too specific- doesn't adequately cover the kind of issues we have
b. Consumer may lack full info
v. Why not rely solely on legislation for product safety?
a. May be affected by product lobbyists
b. Not all regulation is for consumers' benefit and safety
vi. Limitation of courts: focused just on case in front of them and have jury from community, which lack
technical knowledge
B. Theories of Recovery – reflected in the R.S. (3rd)
i. Negligence:
a. A manufacturer breaches a duty of care if:
 The user injured was a foreseeable user of its product,
 The product was likely to cause an injury if negligently made, and
 It places the product on the market w/o conducting a reasonable inspection
i. Ex: ∆ not absolved from a duty of inspection simply b/c it bought the
wheel from a reputable manufacturer--∆ responsible for finished product
b. Cardozo: duty of care is to everyone who could be foreseeably injured by the negligence
 Modern marketplace is the background against which he imposes liability
 Liabilities should run according to the new marketplace- should reflect change
c. Dangerous nature: If the nature of a thing is such that it's reasonably certain to place life and
limb in peril when negligently made, then it’s a thing of danger (Cardozo)
 Its nature gives warning of the consequences to be expected
d. If there's knowledge that the dangerous thing will be used by people other than the purchaser
(+ used w/o new tests), then the manufacturer is under a duty to make it carefully
e. There must be knowledge: (a) of a probable danger, and (b) that in the usual course of thing,
the danger will be shared by people other than the buyers
 For (a), consider the proximity/remoteness of the relation
i. If manufacturer is negligent and the danger is foreseen, he is liable
ii. If danger was reasonably certain to be expected, there was a duty of
vigilance
 (b) Can be inferred from nature of transaction
f. General Rule: impose negligence liability upon all product sellers, regardless of whether:

21
  The damage is to person or property
 The manufacturer produced the whole product or a component part
 The injured person was the immediate purchaser
g. Negligence combines w/ risk-utility: liability of manufacturer rests upon a departure from
proper standards of care= essentially a matter of negligence
 If manufacturer can prove that it used reasonable care, then not liable
 Manufacturer used reasonable care if it shows it had best quality control
procedures in industry, that defects were extremely rare, and there was no way to
detect these defects
 Competing factors: alternatives and risks faced by manufacturer determine
whether in light of these factors, the manufacturer exercised reasonable care in
making the design choices it made
ii. Warranty
a. Needs to be causal connection btw/ assumption of responsibility (thru warranty) and reliance
upon it
b. Express Warranties: an express promise made by 1 party to the other party may rely on a fact
given, thus relieving that party from the obligation of determining whether the fact is true and
giving that party a right to recover if that fact is shown to be false
 Manufacturers are strictly liable for their misrepresentations if:
i. The representation was made w/ the expectation that it would reach the P,
and
ii. The P actually relied on the representation in the use of his product
 Irrelevant matters:
i. Knowledge of falsity of promise
ii. Whether there was privity of K btw/ the purchaser and manufacturer
 When a consumer relies upon a manufacturer's misrepresentation of a product, the
manufacturer is liable to the consumer for damages the product caused
 The consumer has a right to recover from a manufacturer when she suffered
damages as a result of the product failing to comply with the manufacturer's
representations of the product's qualities if the absence of such qualities is not
readily discoverable
 Exceptions:
i. If the danger of the product is obvious, the reliance on the product is not
reasonable-- it's contributory negligence
-Ex: P can't demonstrate reasonable reliance on alleged representation in
media advertising that driving while intoxicated is safe or acceptable
ii. Sometimes misrepresentations are mere pufferycan’t reasonably rely on
them
c. Implied Warranties: an implied promise made by 1 party to the other party that they may rely
on a fact given, thus relieving that party from the obligation of determining whether the fact is
true and giving that party a right to recover if that fact is shown to be false
 Fitness for ordinary use is implied in all product sales of goods
 When a manufacturer puts a product in the stream of trade and promotes its
purchase by the public the implied warranty that it's reasonably suitable for use
as such follows it into the hands of the ultimate purchaser (no privity of K req.*)
 Policy rationale for rule above:
i. Buyer has neither the opportunity nor the capacity to inspect or determine
its fitness for use, and must rely upon the manufacturer
ii. There’s a gross inequality of bargaining position btw/the parties
 K of adhesion which purports either to limit liability or disclaim any implied
warranty will be declared unconscionable and void
 The principles that establish the obligation of the manufacturer apply w/ equal
force to the retailer
i. Bargaining position of the dealer is stronger than the consumer's
ii. Dealer in position to make an equitable distribution of any losses thru
insurance and price control
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  Violation of a specific standard issued under federal statutes (e.g. the Federal
Hazardous Substances Act) may subject a D to liability on a negligence per se or
implied tort theory
iii. Strict Liability
a. The necessity of proving a defect in the product as part of P's prima facie case distinguishes
strict from absolute liability, and thus prevents the manufacturer from also becoming the
insurer of a product
b. Evolution: (1) a manufacturer's liability is based on a warranty implied by law, (2) there need
be no privity of K, and (3) the law prohibits the manufacturer from limiting his liability
disclaimer (4) the liability has evolved from a contractual basis to that of strict liability
c. To establish manufacturer's liability, it is sufficient that π proves:
 She was injured as a result of a defect in design manufacture (Causation)
 She was unaware of the defect (Lack of Knowledge)
 She was injured while using the tool in a way it was intended to be used (not
contributory negligence, foreseeable)
 The product was unsafe for its intended use
d. Rationale: this liability insures the cost of injuries resulting from defects in products are borne
by manufacturers rather than powerless injured persons
e. Stream of Commerce/Foreseeability: When an article is placed on the market by a
manufacturer that knows that the product will be used w/o inspection for defects, the
manufacturer will be strictly liable in tort for any injury caused by a defect in the product
f. Even if π didn't give timely notice of breach of warranty to the manufacturer, his cause of
action based on representations contained in advertisements aren't barred in tort
g. Not necessary to establish an express warranty
h. Duty of manufacturer to foreseeable users: fundamental part of products liability case
 Duty includes warning foreseeable users of the risks inherent in the product's use,
and not placing defective products on the market
 A manufacturer who breaches these duties is strictly liable to an injured party
 This liability reflects policy judgment that by marketing its product, a
manufacturer assumes responsibility to members of public who are injured because
of defects in product
i. Strict liability not concerned w/ standard of due care or reasonableness of manufacturer's
conduct -- acting reasonably doesn't preclude liability
j. Failure to warn: Manufacturer strictly liable if it (a) failed to give warning of dangers that it
was aware of or were known to the scientific community at the time it manufactured or
distributed the product, and (b) this failure to warn rendered the product unsafe to its users
k. Prescription drugs and medical devices -- generally strict liability doesn't apply to design
 Restatement: no strict liability in the case of unavoidably unsafe products
 These are useful & desirable products w/ known but apparently reasonable risks
 BUT if drug or device has a manufacturing defect, strict liability is available
l. Food: strict liability generally not available unless food contains a "foreign substance"
m. Allergies: most jrxs impose duty on manufacturer to warn of possible adverse reactions only if
it knew or should have known the risk  generally treated as failure to warn issue
C. Product Defects
i. Manufacturing Defect: strict liability
a. Manufacturing defect: a flaw that's not in a general product line (i.e. not an issue w/ the design,
but the specific product itself)—it’s a failure in quality control
 Doesn’t conform in some significant way w/ intended design, nor does it conform
to the great majority of products manufactured in accordance w/ that design
b. Standard for determining defect: product is just measured against the same product which was
manufactured according to the manufacturer's standard (a normal, non-defective one)
c. Under a manufacturing defect theory, the essential question is whether the product was flawed
or defective b/c it wasn't constructed correctly by the manufacturer
d. One who sells any products in a defective conditioning unreasonably dangerous to the
consumer is subject to strict liability for the injury thereby caused to the consumer if the
product reaches the consumer w/o substantial change in the condition in which it was sold
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  If the defect was later introduced after the product left the assembly line, and this
was the cause of the injury, then manufacturer not liable
e. Strict liability still holds for manufacturing defects even when all possible care was exercised
by manufacturer (*distinct from other defects)
f. Main issue for π in these cases: factual proof
ii. Design Defect: risk-utility analysis (negligence standard); consumer expectations test
a. Design defect—there’s a problem w/ the design of a product
 Failure of design= the entire product line is challenged
b. General rule: P has burden of proving that:
1) The product was defective,
2) The defect existed when the product left the hands of D, and
3) The defect caused injury to a reasonably foreseeable user
c. P must prove that something is wrong (i.e. defective) with the product that makes it dangerous,
regardless of whether suit is based on negligence or implied warranty
d. Products whose inherent characteristics made them dangerous (and this is known) are generally
not to be considered "unreasonably dangerous" (e.g. tobacco)
e. "widely distributed products" can only be subject to liability for defective design if a P proves
that a "reasonable alternative design" was available
f. Public policy: encouraging the adoption of new, safer technologies and designs in products
g. Varying Approaches:
 Many jrxs instruct jury on all available causes of action, negligence, breach of
warranty, and strict liability
 Most courts have used some form of risk-utility analysis
 Most jrxs require that P prove a reasonable alternative design in order to prove
design defect
 Dean Wade: would manufacturer be judged negligent if it had known of the
product's dangerous condition at the time it was marketed?
 Dean Keaton: Compare risk and utility of product at the time of trial
h. Risk-utility analysis: appropriate when the product functions properly under one set of
circumstances, but because of its design presents undue risk of injury in other circumstances
 We assume that in designing product, the manufacturer knew what the risk was
 We consider whether the risks of injury so outweighed the utility of the product's
design so as to render it defective (question for the jury)
 Reflects a policy judgment that some products are so dangerous that they create a
risk of harm outweighing their usefulness  defect is a conclusion, not a test to
reaching the conclusion, in design defect cases
 Burden of proof: P has burden of proving defect; D has burden of proving that
compliance w/ state of the art, in conjunction w/ other relevant evidence, justifies
placing a product on the market
- Unnecessary for P to prove the existence of alternative, safer designs, just has
to give sufficient evidence of risk-utility factors to establish a defect
 Assessment of decisions made by manufacturers w/ respect to the design of their
products—this test is just a detailed version of Learned Hand's negligence test
Some relevant factors in risk-utility analysis:
1) State-of-the-art: refers to existing level of technological expertise and scientific
knowledge relevant to a particular industry at the time the product is
designed/manufactured – also considers economic and practical feasibility
 Not exactly the same as customs of the industry
 Not an absolute defense -- not dispositive of risk-utility analysis
2) The relative need for that product -- essential v. luxury
 Some products are so dangerous and of such little use that the manufacturer
should bear the cost of liability of harm to others —this may dissuade the
manufacturer from placing the product on the market
3) Consideration of available alternatives
 When there's no alternative available, recourse to a unique design is more
defensible
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  The existence of a safer and equally efficacious design diminishes the
justification for using a challenged design
i. Consumer expectations test: recognizes that the failure of the product to perform safely may be
viewed as a violation of the reasonable expectations of the consumer
j. Negligence (combines w/ risk-utility): liability of manufacturer rests upon a departure from
proper standards of care= essentially a matter of negligence
 If manufacturer can prove that it used reasonable care, then not liable
 Manufacturer used reasonable care if it shows it had best quality control
procedures in industry, that defects were extremely rare, and there was no way to
detect these defects
 Competing factors: alternatives and risks faced by manufacturer determine
whether in light of these factors, the manufacturer exercised reasonable care in
making the design choices it made
iii. Warning Defect:
a. Standard: generally fault-based: requires π to show that manufacturer knew or should have
known of the risks that injured P
b. General Rules:
 Most jrxs have found no duty to warn of obvious dangers or of risks that are
generally known
i. But generally jury decides if reasonable minds may differ as to whether a
risk is obvious or generally known
ii. Policy Basis: requiring warnings of obvious or generally known risks
could reduce efficacy of warnings generally
 Most jrxs impose duty to warn if the ingredient in product is one to which a
substantial number of people are allergic
i. P's burden to prove substantial # are affected
ii. Courts may consider severity of harm as factor
 Most jrxs presume that user would have read and heeded an adequate warning
i. Similar to the informed consent issue--would the reasonable user have
heeded the warning?
Can also indicate inadequacy of warning if it didn't present risks
sufficiently (e.g. didn't mention it or not totally accurate)
ii. However, gov. can't actually require that users read warnings - this is a 1st
Amend. issue + can't show images which are too explicit for warnings
(think of cigarette packs)
c. Strict Liability: A manufacturer must have known or had reason to know of a potential risk or
danger inherent in its product before strict liability can be imposed for failure to warn
 Known or knowable if dangers were known to scientific community at the time or
that info was available to manufacturer at the time of manufacture and/or
distribution
 May present evidence of the state of the art (i.e. may present evid. that the
particular risk was neither known nor knowable thru scientific knowledge)
d. Failure to warn analysis based on strict liability is still distinguishable from negligence
 In strict liability analysis, the reasonableness of the manufacturer’s failure to warn
is immaterial
 In a failure to warn analysis based on negligence, the manufacturer is given some
leeway as to the reasonableness of the failure to warn
e. Relationship w/ Other Defects:
 If a product is defective, a warning alone won't defuse the danger of the product's
design—the issue is whether warning defuses the danger
 If you warn about a defect, you're basically admitting it's a defect -- doesn't help
case or preclude liability for defect
 Warnings aren't a substitute for a reasonably safe design—sufficient warning
doesn't relieve manufacturer of liability for defective design
 Warning can be a factor to consider in risk-utility analysis, but won't alone save a
product from being unreasonably dangerous
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 f. Learned intermediary rule: In cases involving pharmaceuticals, most courts hold that warnings
and instructions should be provided to the physician--she's a "learned intermediary" btw/ the
company and the patient + best person to understand patient's needs and assess risks and
benefits of a treatment
 Physician decides which warnings to pass onto patient in light of patient's
condition and needs, using her professional judgment
 Manufacturer has fulfilled its duty to warn by passing warning onto learned
intermediary to share w/ patient
 This doctrine has been extended to prescription medical devices too
 Many jrxs don't apply this rule in situations where the manufacturer is aware that
there won't be a medical provider or where patient is expected to take active role in
product selection
 Duty to warn is satisfied by warning to customer rather than learned intermediary
 Product directly marketed to public= learned intermediary doctrine doesn't apply
i. Ex: contraceptive pills are marketed directly to public--> warnings aligned
to view of consumer
ii. Warnings must be carefully crafted to assure adequacy, yet not include too
much – not all side effects warned of usually
 Potential ethical concern: doctors will favor drugs from companies that they are
benefited from in some way
g. Post-sale duty to warn about risks which are discovered or developed after the sale
 Restatement- duty determined by balancing factors (e.g. obviousness of danger,
gravity, burden, likelihood of harm)
 Courts have varied on this matter
 Ex: didn't discover flaw at time of manufacturer/sale, but discover a defect after
sale -- what's the duty to warn after sale? If you can discover the identity of users
and that the danger is severe, this suggests a post-sale duty to warn
 Ex: after sale, realize improvements in product which make is safer -- duty to
inform users? If you do this, might be exposing yourself to liability and might have
less incentive to improve product (make it safer)
 Issue = safety: is it better to warn about current product or make next line of the
product safer?
 Ex: manufacturers of artificial hips have a duty to keep FDA up-to-date on risks
 Very few courts have extended manufacturer's post-sale obligations beyond a duty
to take reasonable steps to provide warnings; duty to recall rare

D. Defenses
i. COMPARATIVE NEGLIGENCE – applies to strict products liability, but only to reduce P’s recovery
to the extent that his own negligence contributed to the injury= equitable apportionment of liability
a. We determine the responsibility of perspective parties to apportion liability
b. Strict liability isn’t absolute liability – the manufacturer isn’t the insurer of the safety of the
product’s user; user can be negligent as well
c. *Majority of jrxs apply comparative fault principles to strict products liability cases
d. Rationale: today, we emphasize policy—more important to reach the most fair/just result than
to maintain distinctions of negligence and strict liability
ii. ASSUMPTION OF RISK – when P voluntarily confronts a known hazard, Restatement and some
courts bar the claim. Others subject P to the same fault apportionment as in comparative negligence
iii. ABNORMAL USE + MISUSE– manufacturer NOT liable for injuries caused by unforeseeable
abnormal use of its product (e.g. Ford Motor – π run over by tractor; foreseeable misuse of tractor)
a. But, it may be liable if the abnormal or unintended use was reasonably foreseeable
b. Courts often treat use of a product in a manner unintended by the manufacturer as a defense
c. Potential arguments when there's evidence concerning a misuse or alteration of the product:
 Failure of prima facie case--no defect in product
 No causation--any defect in product didn't cause P's injury

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  Affirmative defense of comparative fault--P's unreasonable conduct in contributing
to the cause of the accident should reduce the P's recovery
iv. PREEMPTION – govt. regulations can preempt tort claims
a. TEST: whether express or implied preemption, question is what the legislature’s intent was
 Express – where Congress has made its intent to preempt state law clear, federal
law preempts state law and manufacturer need only comply w/ the federal statute
and the regulations issued under it
 Implied – When Congress' intent isn't clear, courts must determine whether the
preemption is warranted and which claims are to be preempted—case by case
i. Conflict- if there’s a direct conflict btw/ federal and state laws, then
federal law will apply
ii. Field- court decides to cover/not to cover—interprets intent of legislation
 Fed law applies for pharmaceuticals and medical devices
 State law applies to tort law
b. Presume against preemption: In any kind of legislation/regulation, there's a presumption that
if you have a preexisting tort right, you shouldn't construe the leg/reg to expunge that right
c. Government Contractor Defense: SCOTUS ruled that a contractor could be immune from
liability for an allegedly defective product if the manufacturer could show that:
1) The US approved reasonably precise specifications,
2) The equipment conformed to those specifications, and
3) The contractor warned the US about the dangers in the use of the equipment that were
known to the contractor but not to the US
 Contractor has burden of proving each element of defense
 This defense is available as long as the US approved the aspect of the design the P
claims is defective, even if product was based on a design originally developed for
another buyer
d. Medical Device Amendments (MDA) to Food, Drug, and Cosmetic Act (FDCA) preempt
state requirements that are different from, or in addition to requirements imposed by fed law
 (Riegel – MDA bars common law claims of safety/effectiveness of med device
given FDA premarket approval)
 (Wyeth– FDCA doesn’t bar claims when drug meets labeling requirement of FDA;
congress didn’t intend FDCA to preempt drug labeling claims)

IMMUNITIES
A. Judicial Proceedings
 The absolute privilege to publish defamation in the course of judicial, legislative, or executive proceedings is
really an immunity of those engaged in the proceedings (conferred b/c of the public interest in protecting them
from suit) = "litigation immunity"
B. Employer Immunity
 Employees can't sue employers -- must use Worker Compensation statutes
C. Families
 Immunities often arise within families
o Spousal immunity
 Old rule: woman becomes part of husband when she marries, and you can't sue yourself
 Spousal suits cause marital discord
 Abrogation of immunity -- sometimes general, sometimes partial
o Child-Parent immunity
D. Charities
E. State and Local Governments
-When government acts, there's a defense of full sovereign immunity from suit
-Riss v. New York (1968)- NY Court of Appeals
 Usual rule: there's no duty to protect person from 3rd party criminal acts, even if foreseeable
 Rule: Absent legislation creating such liability, a municipality is not liable in tort for a government service’s
failure to protect the public from criminal activity
 Opinion (Breitel):
o Didn’t find police liable

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 o Concerned about implications of liability rule on police functions
 If hold police liable, it would imply that every time a citizen brings a concern, they have to deploy
resources to protect the person
o Willing to give police broad discretion for whether the protect a citizen from threats
o Police engage in important executive decisions in protecting the community
 There are all sorts of constraints present
o If you tell police they have to protect against all threats, they will have to give up protection for something
else -- limited resources
o Courts shouldn’t be telling police how to allocate their resources
o If police actively abuses citizens, they're liable
o But here we're not talking about active abuse--we're talking about failure to protect
 Dissent (Keating):
o Should be able to draw a line for what kinds of threats to protect against
o Argues this is a serious enough threat that police should protect against, but don't have to protect against all
threats (the less serious ones shouldn't require police protection)
o If police won't help you, who will/can?

DeLong v. Erie County (1982)- NY Sup. Ct., Appellate Division

 Failure on part of 911 operator to properly follow the protocol
 Facts:
o Operator incorrectly transcribes the address
o Crime takes place since police never came
 Distinguish from Riss:
o Not a mere omission of a duty here
o A relationship was assumed
 Citizens invited to rely upon the 911 operation
 County assumed responsibility and citizens rely on responsibility
o Court isn't imposing standard of affirmative action here
o There is a special relationship to protect, which is derived from the assumption of responsibility and the
reliance upon this
o In Riss, the police never took on the responsibility of protecting the citizen--they didn't tell her they would
protect her, but they did in DeLong when operator said help was coming
 *It isn't the establishment of the emergency call system, standing alone, which creates the duty. "It is the
holding out of the 911 number as one to be called by someone in need of assistance, Amalia DeLong's placing
of the call in reliance on that holding out, and her further reliance on the response to her plea for immediate
help: 'Okay, right away' " which imposes the duty (p. 687)
 Holding: judgment affirmed = P wins
o Court found the jury's award of $200,00 for pain and suffering was within reasonable bounds

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