Negligence

Torts Outline

 Culpability spectrum
o Strict liability: responsibility based on causation without regard to defendants
fault
 Used in abnormally dangerous situations, dangerous animals, product
liability, and specialized criminal statutes
o Negligence: premised on unreasonable conduct that creates a foreseeable risk,
evaluated against social norm
o Recklessness: defendant exercised conscious disregard of a high risk of serious
harm
 More culpable type of fault than negligence
 Liability
o Direct liability: A legal obligation imposed on an individual who is directly
responsible for negligence that results in property damage or bodily injury
o Vicarious liability/ Respondeat Superior: employer answers for the wrongs of the
employee
 When employee commits act to benefit employer then employer is in the
scope of vicarious liability
 Example: club bouncer who hurts a patron
 Elements of negligence
o Duty: legal obligation to exercise some level of care
 decided by judges, does case go to jury
 Two categories: 1)general duty principle of reasonable care and
2)exceptions to general duty rule that establish limited duty rules
 Duty exists to foreseeable plaintiff's
 Duty to exercise reasonable care with regard to foreseeable risks of harm
arising from one's conduct
 Rule: when engage in affirmative risk creating conduct owe a duty to
foreseeable P
o Breach of duty: did Ds conduct fall below level of care owed to P
 Was conduct unreasonable
 Did D meet standard of care
o Cause in fact/Causation: causal connection b/w Ds unreasonable conduct and Ps
harm
o Scope of liability/ Proximate Cause: rippling effect creating subordinate risks of
harm
 Bass fishing case, Bass Fed liable for death of girl on lake because they
were causative factor
o Damages: what losses had P incurred
o each element must be proven by a preponderance of the evidence, 50% + 1

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Standards of Care
 Reasonably Prudent Person Under Same or Similar Circumstances (RPPUSSC)
o The reasonable standard of care is the guideline for determining what is
reasonable conduct under the circumstances
o Objective standard: looks at Ds conduct comparing it to the external standard of
reasonable person
 Holmes: law takes no account of temperament, intellect, education,
o Jury decides the reasonable person from community norms
 Certain things reasonable person is expected to know
o Vaughan (hay stack): honest and best judgment is not the RPP, using own
judgment is subjective
o Reed: error of judgment not necessarily negligence when RPP could also make
same mistake
o Does not take into account Ds mental capacity or insanity
 Emergency
o SOC: a reasonably prudent person acting in an emergency
o Sudden emergency doctrine: Ds conduct in an emergency situation not of his own
making is relevant to jurys determination of whether D acted reasonable
 Emergency is part of the circumstances
 Does not apply if Ds tortious conduct contributed to creation of
emergency
o Emergency is an event that requires a decision w/in extremely short duration and
sufficiently unusual so that actor cannot draw on personal experience or general
community knowledge as to which choice of conduct is best
o Foster case: Sudden Emergency
 Unforeseen combination of circumstances which calls for immediate
action
 Perplexing contingency or complication of circumstances
 Sudden or unexpected occasion for action
o A D can be negligent for failing to anticipate an emergency
 Physical Conditions
o Take physical disability into account in determining standard of care
o SOC: RPPUSSC with that disability
o Example: reasonably prudent blind person
 Mental conditions
o Virtually all jurisdictions treat mental disability as irrelevant
o Mentally disabled persons held liable for their torts
o Mental Illness is not allowed as a standard of care/ defense because:
 The mental disability is too hard to measure.
 Easily feigned
 An innocent plaintiff should be compensated
 Will make guardians take greater care of those who are mentally disabled
 Child Standard of Care
o SOC: reasonable child of like age, intelligence, maturity, and experience

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 Both subjective and objective, takes into account mental status but
compares to that of other reasonable children
o Take into account mental disability
o Minority jurisdiction: child under 7 not negligent
o Exceptions:
 Inherently dangerous activity: held to adult RPP (snowmobiling case)
 Adult activity: held to adult RPP
 Superior Skills
o SOC: RPPUSSC
o Standard of care does not change from reasonable person but reasonable person
w/knowledge and skills would be expected to use them
 RPP standard is a floor/minimum level
o If you have special skills cant ignore those skills
o Special skills may affect the jurys breach determination

 Developing Reasonable Standard of Care

 Hand Formula: B<PL
o How to measure breach of duty
o Balancing the likelihood of harm and the potential seriousness of the harm against
the burden of taking adequate precautions to prevent harm
o Burden
 Cost of preventing injury
 A reasonable person does not need to take all the possible measures to
avoid all possible risk
 Cost and effort of feasible, safer alternative conduct that does not unduly
impair utility of activity
 Liability usually found if there is a reasonable means to make the activity
safe
 Burden on Industry: Where the cost of an available safety device is so
large that its use would bankrupt most in the industry, a finding of an
excessive burden would be likely
 Burden on Individual Business: To be distinguished, however, is the
situation where the individual defendant asserts that an available safety
device is unduly burdensome due to the defendant’s own precarious
financial situation. Negligence law uses an objective standard, so the
defendant’s own circumstances are irrelevant
o Probability
 The probability of the likely harm
 that probability measures how foreseeable the harm-causing event is
o Likely harm/ magnitude of the loss
 Magnitude if the harm/injury
 is what a reasonable person would foresee as the likely harm
 what the actual injuries were
o When burden is less then PL then there is a breach of duty

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 Role of Custom
o Evidence relevant to the breach of duty
o Customary practice in determining the reasonableness of a party’s conduct
o Rule: evidence of the existence of custom and person’s adherence to it or
departure from it is relevant to issue of breach
o Customary practice
 Well established custom/ common practice
 Relevant: custom is used to prevent the specific injury
o Custom does not become the standard of care, remains RPP
o If the plaintiff can show that the custom is well-established, then the jury can use
D’s deviation from custom in its determination of breach of duty
o Custom used in B<PL
 Probability and Liability- what is the custom supposed to protect
 Burden- if many in the industry do it then the burden is not very high
compared to the PL
o Trimarco: glass door
 Evidence of custom means high probability of injury
 Custom is evidence that burden is reasonably low b/c most landlords
follow custom
o TJ Hooper case (tug boats and radios)
 Compliance with custom does not mean you are not negligent
 The custom itself can be unreasonable
 Statues and regulations as Standards
o Legislature has decided what is appropriate conduct in a specific context
 Negligence per se (majority)
o SOC is the statute (CA)
o breach is violation of statute, do not use B<PL
o elements:
 1)P in the protected class
 2)P suffer the specific type of harm
 3) Specific: If the statute is so general that it resembles RPP, the judge
won’t use it.
 4) Appropriate: No bad policy will come from it
 If elements not met then do not use statute as SOC and use RPP
o Do not use license statutes as SOC b/c license does not show relevance to due
care
o Do not use companies own internal standars
o Judicial discretion to adopt statute as standard or to use as evidence of breach
o Bauman: use child standard of care and allow violation of statute as evidence of
negligence
o Excuses to negligence per se
 Incapacity
 No knowledge of the occasion for compliance
 Inability after reasonable diligence to comply
 Emergency
 Compliance involves greater risks

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o Compliance with statute does not prevent finding of negligence where reasonable
man would take additional precations
 Some evidence jurisdictions
o SOC is RPP
o Ds violation of statute is evidence in B<PL
 Proof of Negligence
o P has burden to prove breach of duty by preponderance of evidence
o Commonly P relies on circumstantial evidence in 2 contexts: slip and fall, and Res
Ipsa Loquitor
 Circumstantial Proof
o Evidence from which a reasonable inference can be drawn.
 Slip and Fall cases
o Where a person slips and falls on the defendant’s property, the plaintiff must
show more than the fact that they fell and were injured to prove the defendant’s
breach
o The plaintiff’s cause of action would be negligence, so she must show by a
preponderance of the evidence that the defendant failed to exercise reasonable
care
o Most courts require the plaintiff to show that the condition on which she slipped
existed long enough so that the defendant should have discovered it and should
have taken care of it
o Clark v. Kmart
 Facts: Lady slipped on grapes that had been sitting in a checkout line that
had been closed for an hour.
 RULE: It is the duty of the storekeeper to provide reasonably safe aisles
for customers and he is liable for injury resulting from the condition either
caused by the active negligence of himself or his employees where known
to the storekeeper or is of such a character or has existed a sufficient
length of time that he should have knowledge of it
 Look at condition of grape, had it been there a long time, was is squished
and gritty to show that it had been stepped on
 Res Ipsa Loquitor
o When cannot pinpoint what breach is then res ipsa loquitor
o Form of circumstantial evidence
o Res ipsa is most helpful when the plaintiff is unable to make specific allegations
about what the defendant did wrong
o a jury may infer that the defendant acted unreasonably without any other proof
o The plaintiff does not have to eliminate all of the other possible causes of harm,
nor does the fact that the defendant raises possible non-negligent causes defeat
plaintiff’s effort to invoke res ipsa
o Elements:
 Doesn’t normally occur without negligence/probably due to negligence
 D has control- under Ds control to make them the responsible party
 P did not contribute
 D had superior knowledge (some jurisdictions)
o P has to prove more than 50%

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o Judge decides if to allow RIL

o If jury finds elements of RIL it does not mean breach of duty
 It is evidence of breach
 Jury can infer if there was breach or not
o Byrne v. Boadle (barrel of flour)
 The harm-causing event was probably due to negligence and that the
defendant was probably the culpable party.
 The mere fact that the accident occurred without any other evidence is
enough to show negligence
o Ybarra (injured when went into surgery)
 Loses use of arm
 P doesn’t know who injured him or how (unconscious)
 Use superior knowledge: smoke out the info b/c many people involved
and unwilling to come forward
 Professional Malpractice
o SOC is the custom for professionals
o Breach is deviation from custom, do not use B<PL
o For D to show no breach when deviated from custom they must show that there
were alternative customs that they could follow
o P needs expert witnesses to establish SOC and the Ds deviation from SOC
 Medical malpractice
o SOC: set by custom, Dr. must act with degree of care, knowledge, and skill
ordinarily possessed and exercised in similar situations by average member of the
profession practicing in the field in the relevant geographic location
o P must provide expert witness to set SOC and show deviation
 w/out expert witness, P cannot proceed with malpractice action
 They do not need to be in the exact area of practice just needing knowledge of
the customary practice in the similar geographical location
 exception to expert witness: common knowledge or obvious mistake
o if breach is established still have to establish other elements of negligence
o Dr. cannot be liable for malpractice if there is an inherent risk and that risk comes
about
 Doctrine of Informed Consent
o A physicians failure to provide information to the patient
o custom is the standard of care
 The physician rule
o Required to disclose risks
o Treated like other malpractice cases
o Custom sets the standard of care
 SOC for Doctor: a physician must act with the degree of care, knowledge,
and skill ordinarily possessed and exercised in similar situations by the
average member of the profession practicing in the relevant geographic
community
 The plaintiff must show that the customary practice of doctors in good
standing in the relevant community is to disclose that risk
 The profession decides what info to share with patients
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o Breach: deviation from custom

 Do not use B<P(L)
o Plaintiff needs to show expert testimony that sets the custom and that the Dr
deviated from custom to show breach
 The Patient Rule
o patients have rights to make important medical decisions
o SOC: a Dr must divulge all material risks to patient
 Dr must divulge at a minimum material risks involved, as well as the
alternatives available and their attendant material risks
o Material risk: should be told of the risks that would likely affect their medical
decisions
 What a reasonable patient would want to know to have the procedure
 The more grave the risk the more material it is
 The higher the probability of risk the more material
Jury decides what is considered a material risk
o Breach: Dr dose not disclose all material risks
o No expert testimony needed
o Plaintiff still have to prove cause in fact: can be difficult
 If they had been properly informed then they would not have gone through
with operation (subjective)
 P must show that a reasonable person in their situation would not have
undergone the procedure if they had been told the risk (objective)
 Courts are split, but many courts have adopted the objective test because
don’t want to have guess what everyone wants to know
o Exceptions to patient rule
 Therapeutic privilege: patient does not want to know the risk, would cause
emotional harm to the patient
 Emergency: Dr will not be held liable for failure to inform when justified
by emergency
o Summary: P must show the following
 1) nondisclosure of material fact by D
 2) had there been proper disclosure, patient would have rejected
procedure(establishing cause in fact)
 3) that the undisclosed adverse consequence did occur
 Legal malpractice
o Custom sets standard of care
o Breach is deviation from custom
o CAUSATION: The plaintiff would still be required to prove that but for the
defendant’s malpractice, the plaintiff would have won original suit. This is a very
heavy burden to overcome

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 Duty to Land Entrants

o The General Duty rules states that a person owes a duty to all foreseeable
plaintiffs
o Where D engages in risk creating conduct there is a duty owed to foreseeable P
 Duty based on status
o Land possessor liability
o Duty of landowner owed to a visitor on property varied with regard to status of
visitor
 Invitee: someone on land with expressed or implied permission of land owner
 Invitee if to confer economic benefit to owner
 Open to the public
o SOC is RPPUSSC
o DUTY: Duty to use reasonable care to protect an invitee from conditions that
create an unreasonable risk of harm of which the owner or occupier knows or by
the exercise of reasonable care would discover.
 If the land owner knows or should know of a danger on the property, she
must either fix it or warn the land entrant of its existence where the risk is
not known or obvious
 Licensee: enters with consent of land owner includes house guest
o Duty: The duty owed to a licensee is not to injure the licensee willfully, wantonly,
or through gross negligence
o owner or occupier has actual knowledge of a dangerous condition unknown to
the licensee, to warn of or make safe the dangerous condition
o Duty to warn of known concealed dangers
o The licensee takes the property in the condition in which the land possessor uses
it. The land possessor had no duty to make affirmative efforts to make the
property safe for the licensee.
 The land possessor can assume that the licensee will notice readily
apparent dangers
 Applied to conditions of land not activities on land
 Trespasser: enters without consent of land possessor
o Duty: The only duty a premises owner or occupier owes a trespasser is not to
cause injury willfully, wantonly, or through gross negligence.
 The trespasser took the property as it existed upon entry onto the land,
including the concealed artificial or natural dangers.
 The land occupier has no legal duty to discover, remedy, or even warn a
trespasser of such dangers.
o The courts have expanded the duty owed to trespassers to include an exception
that requires warnings about traps and child trespassers
o Exception: Know or obvious trespassers- warn of human made conditions
 Frequent or known trespassers
o Where land occupier is aware of trespasser and knows of trespasser approaching a
non-evident artificial condition the owner is obligated to warn trespasser

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 Obligated to warn of known concealed artificial dangers

 Owe reasonable duty of care
 Attractive nuisance doctrine: child land entrance doctrine
o DUTY: Under the Attractive Nuisance Doctrine the child trespasser will be owed
a duty of Ordinary Care.
o Land possessor subject to liability to children trespassing when harm caused by
artificial condition upon the land
 Knows or should have known the children are likely to trespass
 Knows or should have known the condition will involve an unreasonable
risk of death or serious injury to children
 Children do not discover or realize the risk involved
 The utility of the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children
involved.
 The possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children
o Has to be an artificial dangerous condition
 Unitary Standard (Roland Factors)
o CA, court does away with status of land entrant
o Unitary standard: duty owed to any land enterer of the reasonable person
 Does not matter if artificial or natural
o Makes it easier to get to jury
o A reasonable person is assumed to reasonably maintain the land because we don’t
know who will come; a cop, the mailman, salesmen, etc.
 Need to protect all people.
o ROWLAND V. CHRISTIAN
 Facts: Rowland went to use the bathroom. The porcelain sink handle
broke in his hand causing severe damage. The plaintiff was a licensee
because he was not conferring any potential financial benefit.
 RULE: Whether in the management of his property has acted as a
reasonable person in view of the probability of injury to others, despite the
plaintiff’s status as a trespasser, licensee, or invitee
o Roland Factors:
 Foreseeability of harm to the plaintiff.
 The degree of certainty that the plaintiff would suffer the injury.
 The closeness of connection between the defendant’s conduct and the
injury suffered.
 The moral blame attached to the defendant’s conduct
 The policy of preventing future harm.
 The extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with the resulting liability
for breach.
 The availability, cost, and prevalence of insurance for the risk involved.
 Bipartisan jurisdictions
o Combine licensee and invitee
 Duty owed is RPP

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o Trespasser
 Duty to not inflict willful or wanton harm
 Outside land
o Duty: reasonable care is owed for artificial conditions but no duty is owed for
natural conditions
o CA: do not consider natural or artificial conditions
 Owe duty of RPP to outside of land
 Landlord Duty obligations
o Landlords do have duty of reasonable care for foreseeable risks where:
 Concealed dangerous conditions are known to landlord
 Dangerous conditions create risks to those outside the premises
 The premises are leased for public admission
 Dangerous conditions are in the common areas over which landlord retains
control
 Landlord breaches an agreement to repair premises
o Modern trend (minority): duty of reasonable care regarding conditions to tenants
and other on premises with landlord permission
 Real duty
o Where D engages in risk creating conduct there is a duty owed to foreseeable P
o Duty:
 Affirmative risk creating conduct
 Personal injury
 Plaintiff was foreseeable
 Misfeasance vs. Nonfeasance
o Misfeasance: negligent omission- failure to do something that creates risk
 Example: failing to stop at stop sign
 Owes duty of reasonable care to avoid foreseeable injury to foreseeable P
 General rule: where misfeasance, we assume there is a duty
 Failure to act as RPP
o Nonfeasance: failure to intervene, Passive inaction, a failure to take positive steps
to benefit others, or to protect them from harm not created by any wrongful act of
the defendant
 Start with the assumption that NO DUTY applies
 Exceptions: special relationship, undertaking to act, D caused P to rely on
promise
 Duty to rescue (nonfeasance)
o General rule is that there is no duty to rescue
 Rule is seen as embodiment of the value placed on individualism
 Exceptions to no duty to rescue:
o Ds tortious conduct
 Duty when Ds tortious/negligent conduct creates a need to rescue
 Need to rescue arises when D is negligent
 Yania v Bigan: P dared to jump and he did and drowned. D did not create
risk, P was in full control of mental capabilities. P was invitee but court
said not enough to create special relationship
 Minority: duty to rescue no matter what
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o Special relationship
 Duty to rescue when there is special relationship: interdependent
relationships, parent/child, teacher/student
 A special relationship apply where the plaintiff clearly entrusted his safety
to the defendant; mutual dependence
 Farwell v. Keaton: court created special relationship of social co-
adventures (friends), expansion of special relationship
o Undertaking to act
 When person does intervene then do have a duty to rescue
 Cannot leave the victim in a worse position
 Modern view: required to act as reasonable person
 Farwell v. Keaton: Farwell was beaten, but all Keaton did was give him an
ice pack and put him in the car. RULE: The application of the ice pack
constituted an undertaking to rescue. Also the court found that there was
a special relationship
o Specific reliance
 Duty to rescue when D creates a specific reliance or promise to help
 Duty to Control/ Warn
o Nonfeasance: no duty to warn absent exception
o Duty to take affirmative steps to protect people from misconduct of 3rd persons
o A duty to control/warn arises from special relationship
o Duty of control arises when:
 D possesses knowledge of 3rd persons dangerousness
 D has ability to control 3rd person
o Tarasoff
 Poddar killed Tarasoff, Poddar had told therapist of desire to kill her,
victim was never warned
 Rule: When a physician knows or should know that a patient poses serious
injury or serious death, the doctor must exercise reasonable care to warn
 SOC: know or should have known under professional standard-follow
custom; use professional standard to determine dangerousness and use
RPP to warn victim
 Good public policy to make duty to warn of outpatient who males threats
 Court expands special relationship b/w therapist and outpatient: knows of
dangerousness and has ability to control
 Now requires therapist to give informed consent to patient that if receive
threats then have duty to warn victim
 CA law: can only warn of risk to readily identifiable victim of serious
injury or death
o Dunkle
 Limits duty to warn to a readily identifiable victim
 Court balances the interests of the public and rights of patients to receive
help from therapists
o Duty to control arises when there is an identifiable victim
o Matter of public policy: Roland factors
 Duty to protect against criminal conduct

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o In certain types of relationships, common law imposes a duty on one party to take
reasonable affirmative measures to protect other party from foreseeable criminal
activity
o Duty arises out of special relationship
o Delta Tau Delta Case
 Girl raped at frat party
 Duty to protect= special relationship+ high foreseeability+ public policy
 Prior similar incidents test (PSI): A landowner may owe a duty of
reasonable care if evidence of prior similar incidents of crime on or near
the landowner’s property shows that the crime in question was foreseeable
 Important factors:1) Number of prior incidents 2) Their proximity
in time and location to the present crime 3) Similarities of the
crimes
 Policy Concerns: The landowner has no duty or incentive to
protect the first person from crime because there was no prior
crime
 Totality of Circumstance (TOC) Test: The court considers all of the
circumstances surrounding an event, including the nature, condition, and
location of the land, as well as prior similar incidents, to determine
whether a criminal act was foreseeable
 Ps favor TOC b/c takes all circumstances into account, general
foreseeability of crim conduct based on general circumstances
 Ds dislike b/c places huge burden on D
 Tends to make foreseeability too broad and unpredictable
 Balancing test: court balances the degree of foreseeability of harm against
the burden of the duty imposed
 As the foreseeability and degree of potential harm increase so too
does the duty to prevent against it
 Requires P to say what D should have done
 If burden is minor then owe a duty
 General foreseeability of crime not enough
o Dram Shop act
 Providers of alcohol not liable in tort to 3rd party injury
 Dram shop acts do impose liability b/c commercial establishment: can
externalize cost and have insurance, and social host: a moral relationship
to protect guest
o Negligent entrustment: misfeasance
 Ds liability is premised on supplying a potentially dangerous
instrumentality (such as car or gun) to a person the D knows or should
know is not fit to handle it
o Business Duty to Protect
 Business/patron relationship alone does not establish a duty to protect
 Courts typically require a high degree of foreseeability to establish a duty
 Some courts require P to show prior similar incidents b4 duty to protect
can be found

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 Some courts have judge balance foreseeability of 3rd party criminal

conduct against burden on the D of preventing harm
 Government Liability
o Proprietary function: something done by private enterprise
 Example: govt run hospital
 Govt treated like any other defendant
 Owe a duty
o Discretionary function: discretion/ judgment/ policy/ resource allocation/ how
they do their job
 Courts will not tell police how to do their job
 Courts will not decide how to allocate resources
 Typically no duty if deemed discretionary
o Ministerial: govt decides to do something but makes a mistake in the
implementation
 Example: dispatcher writes down wrong address so police go to wrong
house
 Duty is owed
 Public duty doctrine
o Riss v NY case
 Facts: Lady threatened by ex-boyfriend. She asked the police for help
twice, but they denied help. Spills lye on her face.
 RULE: There is no duty in this case because it was a discretionary
decision.
 Don’t owe a duty b/c police decide how to allocate resources
o Exceptions:
 When police create specific reliance then create a duty
 Cuffy: reliance ends at certain time
 If police increase the danger then owe a duty
o Cuffy v. NY
 Repeated confrontation between Cuffys and Aitkins, Cuffy went to police
but police never followed through
 Cuffy factors: special relationship rule elements
 Promise of action
 Knowledge that inaction could lead to harm
 Direct contact b/w police and injured party
 Party’s justifiable reliance on police
 Court said cuffys did not have justifiable reliance on police
 Cuffys did not meet special relationship rule
 Policy reason: courts nervous about imposing too much liability on govt
entities

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 Negligent Infliction of Emotional Distress

o every jurisdiction treats emotional distress differently
o emotional injury harder to prove, measure
o Emotional distress cases hinge on direct negligence cases, can only bring
emotional distress if win on a negligence action
o first thing to ask: Direct of Bystander
 Direct Physical risk
o D engages in negligent conduct which causes distress to P
o P must show physical manifestation of distress
o 1)Options: impact, zone of danger (boyles), pre-existing duty (CA-Burgess),
foreseeability +severe emotional distress
o 2)does jurisdiction require proof of physical manifestation of emotional distress
o Physical injury leads to emotional distress (pain and suffering)
o Majority require physical manifestation to show actually suffered emotional
distress (ei: headaches, heart attack)
o Impact rule: P must suffer physical impact (slightest touch) to recover for mental
distress
 1) physical impact 2)physical manifestation of emotional distress
 Minority: 1 state uses impact rule
 Mitchell case: team of horses almost hit woman and suffered emotional
distress which caused a miscarriage
 Woman could not recover because there was no physical impact
o Zone of Danger Rule: requires P to be in the zone of danger-must have been at
risk of physical injury and physical manifestation of emotional distress
 Majority: 1) P within zone of danger-near misses 2)physical manifestation
of emotional distress
 Boyles case: D taped P having sex with him and D showed it to friends, P
sued for emotional distress as direct victim
 P could not recover because not in the zone of danger
 Exceptions to zone of danger
 Negligent transmission of death of loved one
 Mishandling of corpse
o Only need physical manifestation of emotional distress, NO
zone of danger
o Pre-existing duty rule: CA only
 Requires a pre-existing duty and severe emotional harm
 Burgess case: mother giving birth and doctor waited for emergency
caesarian which caused baby to have brain damage
 mother and child were direct victims, the doctor owed a duty to
mother and child
 emotional harm suffered by mothers breaches the duty owed to the
mother by the doctor

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 Huggins Case: pharmacist gave wrong dosage to child, parents sue for
emotional distress
 Direct victim rule: child has the pre-existing duty with pharmacist,
parents are not direct victims and have no pre-existing duty thus
parents cant recover for emotional harm
o Foreseeability + severe emotional distress
 Minority jurisdictions
 Does not require physical manifestation of emotional distress
 Bystander Actions for Emotional Distress
o 1)Options: no action, zone of danger, foreseeability requirement (clohessy, thing,
CA), foreseeability guidelines (Dillon), foreseeability + severe emotional distress
o 2) does jurisdiction require proof of physical manifestation of emotional distress
 Some jurisdictions require physical manifestation of emotional distress
o Reason to not allow bystander actions is b/c they already have action from real
victim
o Zone of danger
 Majority of jurisdictions
 Require near miss of physical harm
 Doesn’t expand duty, allows for more damages to be recovered by direct
and bystander
o Persons outside zone of danger
 Many states now follow the bystander recovery approach where negligent
conduct creates a risk of physical harm to a close family member and the P
witnesses the accident
 Courts require: a) P observe the injury b) P closely related to victim c)
resulting emotional distress be severe d)initially P suffer physical
manifestations of emotional distress
 Many jurisdictions have abandoned the physical consequences
requirement
o Dillon: Foreseeability Guidelines
 Dillon court set forth 3 factors to consider when determining whether
emotional injury to bystander is reasonably foreseeable , guidelines not
rules
 Severe emotional distress
 How close the P was located near the scene of the accident/
proximity
 Whether P had sensory and simultaneous observance of the
accident
 Whether P and victim were closely related
o Foreseeability Requirements: Thing requirements
 CA didn’t like zone of danger
 20 after Dillon case CA ruled on Thing and makes Dillon guidelines as
requirements that all must be met
 P can only recover for emotional distress if:
 P is closely related to the injury victim

15
Negligence

 Present at the scene of the injury and aware that the event caused
the victim injury
 Suffers serious emotional distress
 Clohessy case: seven your old hit by truckand killed and mother and
brother witnessed the accident as a result suffered severe emotional
distress
 Follows Thing requirements but allows for recovery if P arrives on
scene soon after accident
 Also victim must have suffered substantial serious injury or death
 Bystanders emotional distress must be severe
o Overwhelming majority of states now recognize a claim for bystanders emotional
distress; either under zone of danger or Dillon-Thing foreseeable emotional risk
standard
o Dillon-Thing foreseeable emotional risk standard is majority approach
o Many states still require physical manifestation of emotional distress
 Loss of consortium
o Bystander claim
o Nearly all jurisdictions permit claim
o Virtually all states allow for either spouse to recover for harms such as loss of
companionship, affection, sexual services
o P must prove their loss
o Majority jurisdictions: limit to spouses
o Some jurisdictions have expanded to include parents and children
 Wrongful death
o The heirs/ survivors can bring claim for death of family member
o Cannot get recovery for emotional distress
o Can Recover:
 Economic losses
 Intangible losses: loss of consortium, loss of comfort, et
o By statute all jurisdictions permit action against D for wrongful death of victim
o Surviving spouse, parents and children are typically permitted to bring action
o Most jurisdictions allow permit dependents to recover lost support and other
benefits
 Survival actions
o Tort claim of dead person continues after death
o Becomes an asset of the estate
 Wrongful Conception
o Healthy, but unwanted baby
o Parents decided that they no longer wanted children, but due to doctor’s
negligence they have a child.
o RECOVERY: Damages directly associated with the pregnancy and birth
 a. Pain and suffering associated with the failed procedure.
 b. Cost of corrective procedure
 c. The costs and pain and suffering associated with the unwanted
pregnancy and the birth.
 d. The mother’s lost wages

16
Negligence

 e. The father’s loss of consortium

o Controversy is over whether the parents may recover the cost of raising the child
to majority.
 Most jurisdictions say can’t recover the costs.
 Others use the “Motivational Analysis” that looks to the reason why the
parents didn’t want to have kids.
 1. If because did not have the financial means, then allow recovery.
 2. If due to worries about mother’s health or genetic defects, then
can NOT recover because healthy baby
 Some jurisdictions require an OFFSET based on the benefit rule.
 Courts ask the jury to offset the emotional gains from having a
healthy baby against the recovery.
 Criticized because offsetting economic costs against emotional
costs
 Wrongful Birth
o Wrongful birth actions typically arise, when due to negligent genetic counseling
or a misdiagnosis about the condition of a fetus, an infant is born with a severe
medical disability.
o The plaintiffs are suing because of the loss of their ability to make an informed
decision about whether to procreate, or whether to carry a potentially impaired
child to term.
o The plaintiff has to prove with a preponderance of the evidence that “but for” the
defendant’s negligent failure to diagnose the condition giving rise to the birth
defect, the plaintiff would have learned of the potential danger and would have
terminated the pregnancy.
o RECOVERY:
 Allowed: Extraordinary expenses
 Can be limited based on when the child reaches majority if the parent will
no longer incur those expenses or by the life expectancy of the parent.
 Not Allowed: Cost of rearing the child to majority
 Wrongful life
o Unhealthy child is born
o Jurisdictions have largely refused to recognize claim
 Difficult to calculate damages
 Fear of disease
o Emotional harm
o Majca v. Beekil
 P in legitimate fear of contracting HIV
 Majority rule: P must show
 Actual exposure
 Reasonable fear of contracting the disease
 Not about foreseeability
 Focus on actual exposure
o Potter Case: CA rule
 CA requires:
 Actual exposure

17
Negligence

 Prove likelihood of getting the disease, prove more likely than not
that P will contract the disease
 Almost impossible for P to prove likelihood
 Exception: If D is intentional then can recover damages without likelihood

18
Negligence

 Negligent conduct Leading to Economic Harm

o When there is property damage then can recover for economic loss
 Pure economic Harm
o General rule there may be no negligence recovery for those suffering pure
economic loss
o No duty for pure economic loss
o Policy reason: extend liability too far, where do you draw the line
o Causes disproportionate liability
o Exception: if there is a special relationship b/w P and D
 Fiduciary relationship then owe a duty for economic loss
o People’s Express Airlines v. Consolidated Rail
 Facts: A tank containing chemicals caught on fire and the plaintiff’s
terminal had to be evacuated.
 RULE: For a duty to exist with pure economic losses the plaintiff must be
a Particularly Foreseeable plaintiff
o 532 Madison v. Finlandia Center
 Facts: The falling debris from building closed down street.
 RULE: No duty to avoid pure economic harm
o Nycal v. KPMG (accounting case)
 Facts: The accounting firm was hired to do an audit for Gulf. Nycal used
that report in deciding to buy the stock.
 Issue: When, if ever, should a duty go beyond the contractual relationship
to a third party?
 NYCAL didn’t know purpose for audit and didn’t know identity of small
group of people that would use it
 RULE: Restatement of Torts § 552: majority and CA
 Liability is limited to loss suffered (a) by the person or one of a
limited group of persons for whose benefit and guidance he intends
to supply the information or knows that the recipient intends to
supply it; and (b) through reliance upon it in a transaction that the
intends the information to influence or knows that the recipient so
intends or in a substantially similar transactions
 Does not require P to be identifiable
 552: duty is owed to narrow potential class, not any 3rd party that
uses the info
 Cannot be willfully blind
 Minority jurisdictions
 Some jurisdictions require direct contact between information
supplier and 3rd party
 Foreseeability test: few jurisdictions extend duty in accounting
malpractice to all foreseeable Ps,
o An accountant may be held liable to any person to whom
the accountant could reasonably have foreseen would

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Negligence

obtain and rely on the accountant’s opinion, including

known and unknown investors.
o Problem: Too broad
o Attorney liability
 General rule: absent fraud or other bad faith an attorney is not liable for
negligent conduct to non-client 3rd parties
 Exception: attorney owes duty to 3rd party in wills because testator is dead
and the attorney is representing the beneficiary
 Utilities and Contractual relationships: No duty
o Moch v. Rensselaer Water
 Facts: water company contracted with city to provide water. Ps warehouse
burned down but not sufficient water to fight fire. P claimed water
company owed a duty to prevent warehouse from burning down
 Rule: no duty on water company to warehouse owner
 Contract with city does not extend to individual people
 Policy reason: open flood gates of litigation, if imposed duty then would
cause an increase in water utilities
o Strauss v Belle realty
 Facts: The power goes out. The plaintiff needs water, so he goes down to
the dark basement, but hurts himself on the common stairs. P sues electric
company for power outage
 Rule: liability for injuries in buildings common areas should be limited, as
matter of public policy, by the contractual relationship
 Electric company only has contract with Belle realty in common areas not
with Strauss
 Policy reason: if imposed liability then electric company would have to
raise rates to externalize costs

20
Negligence

Cause in Fact
 Overview
o Causation requires a connection b/w the Ds negligent conduct and the Ps injuries
o Generally accepted that tort liability is dependent on proof that the Ds culpable
conduct or activity was the actual cause of the Ps injuries
o P must prove by a preponderance of the evidence that more likely than not the Ds
conduct was a “but for” cause of Ps injuries
o Tests for causation:
 “But For” test
 Substantial Factor test
 Both tests require that the negligent conduct or omission of the D
must be connected to the Ps harm
 But For test
o Traditional and dominant test for actual causation is the “but for” test
o P must establish that but for the Ds culpable conduct or activity the P would not
have been injured
o P has burden of proving “but for” causation, more likely than not the D was the but
for cause of the injury
o Possible to have more than 1 “but for” cause of an injury
o Does not require P to eliminate every other causal factor
o All you need to show is probable reason
o Sowles v. Moore
 D made hole in ice on lake and failed to put up guards/fence around the
hole, Ps team of horses were spooked and P lost control, team of horses ran
onto the ice and fell through the hole and drowned
 There was a statute to place guards around holes in ice
 But for test: but for the D not putting up fences around the hole in the ice
then Ps horses would not have drowned
 D won because even if he had put up guards around hole they wouldn’t have
stopped the horses
 Rule: P cannot recover even if D exercised due care could not have
prevented accident
o Grimstad case
 Bargee fell off barge couldn’t swim and drowned, the wife(P) suing because
no life preservers were on the boat
 Unreasonable conduct is not having life preservers on boat
 Court says no reasonable jury could find for P
 Reasoned no proof that even if there was a life preserver that the bargee
would not have drowned
 Not having the life preserver was not the cause in fact of death
o Zuchowicz case

21
Negligence

 Unreasonable conduct: prescription erroneously instructed P to take twice

the max dosage, significant overdose, P develops pulmonary hypertension
and later died
 P must prove:
 1) the drug can cause pulmonary hypertension
 2)Whether overdose was the cause of death
 The negligence was the overdose thus must show it was the overdoes that
caused the death
 Have to show more likely than not that drug caused pulmonary hypertension
 Court agrees with drug causing pulmonary hypertension and that the
overdose was the cause of death
 But for the D prescribing the overdose then P would not have died
 Substantial Factor Test
o Asks whether the Ds negligent conduct was a substantial factor in contributing to
the Ps injuries
o Used by many courts as supplement to the “but for” test when redundant multiple
causes would preclude liability under the “but for” analysis
o Many courts follow substantial factor test instead of but for test
o Some jurisdictions use either test depending on the nature of the case
o When have multiple parties then use substantial factor test to hold both parties liable
o Can apportion the injuries if it in known which D caused which harm
 Multiple parties: Joint and Several Liability
o Joint tortfeasors are 2 or more individuals who: 1)act in concert to commit a tort
2)act separately but cause single indivisible injury or 3)share responsibility for a
tort b/c of vicarious liability (employers)
o Joint and several liability rule: when multiple tortfeasors each are a substantial
factor in indivisible injury the Ds are jointly and severally liable
 Indivisible injury: P can’t prove what amount of harm each party caused
 Each individual is fully liable to the P for the entire damage award
 Can sue parties separately or together
 If one party is on the line for the full amount of damages D1 can sue D2 for
his part of the damages
 Controversial b/c if only D1 can pay and D2 cant, then D1 is on the hook
for the full amount
o P cannot seek multiple damage payments, but my look to any of the Ds for the
entire amount
 Loss of chance (limited to medical malpractice)
o When a physicians malpractice further reduces a patients already smaller than 50%
chance of survival
 This creates problem b/c P cannot show preponderance of the evidence in
CIF if they have less than 50% chance of survival
o Re-characterize the injury
 Loss of chance becomes the harm
o Still use but for test
o Hypo 1: Dr. Doom commits malpractice and fails to diagnose cancer. At that time
70% chance of recovery, now nothing.

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Negligence

 P would get full recovery because proved by a preponderance of the

evidence because started at 70% (greater than 50%)
o Hypo2: At the time of the malpractice had 40% chance of survival.
 Under traditional theories can’t show by a preponderance of the evidence
that would have survived (40<50), so no recovery.
 Under loss of chance jurisdiction: allow for cause in fact to be met but
reduce damages
 b/c loss chance of survival then recover 40% of damages
 only reduce damages when less than 50%, otherwise over 50% gets
full recovery
o CA does NOT have loss of chance
 If Ps lose chance of survival because of Dr malpractice and cannot prove
preponderance of the evidence (51%) then lose on CIF
o Majority of jurisdictions refuse loss of chance b/c undermines causation
requirement
o Approximately 22 states have recognized loss of chance
 Alternative liability
o Rare instances where courts will shift the burden of proof by requiring Ds to prove
they were not the actual cause of the injury
o Summers v Tice
 Facts: 3 man went out hunting, the two Ds shot in Ps direction hitting P in
the face
 D1 and D2 owe duty-general duty rule, SOC-rppussc, BOD-Ds shot in Ps
direction without making sure they didn’t shoot P
 CIF: problem b/c both Ds shot but do not know which one shot P
 Don’t use joint and several liability (substantial factor test) b/c one
of the Ds was not a factor, only one person shot P but don’t know
who
 Court shifts burden of proof to Ds to prove that they were not the
cause of injury and if cannot show proof then they are held as joint
tortfeasors
o Rule: P must show
 Each D acted negligently
 If not case thrown out
 Bring all potential Ds before the court in one action
 Small number of defendants
 The larger the group of defendants the more unfair it becomes
o Criticism
 Set precedent that could set up future innocent Ds who could be punished
 The more Ds the more unfair it becomes
 Allows for chance that innocent party will have to pay
 Market share liability
o Theory pertains to suppliers of defective products where P cannot prove which
brand of the product she used
o Each defendant pays the damages its culpable conduct has inflicted that are
proportional to its share in the market.

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Negligence

 Markets can be local, national

o Hymowitz v. Eli
 Manufacturers made DES to prevent miscarriages, caused cancer but P cant
ID which manufacturer made the DES that mother took
 Cant use alternative liability theory b/c too many Ds to bring b4 court
 Rules:
 Market Share Theory: Limits a defendant’s liability to its national
market share
 P has burden to bring Ds before the court, not all Ds have to be b4
the court
 Each D just pays their market share, held severally liable (their
share) so P doesn’t recover full amount
 NY: even if D can prove that its specific company didn’t
manufacture the specific DES then STILL liable for their market
share
 CA: D can exculpate themselves, prove that they were not the
manufacturer then off the hook for liability
o Has only been applied to DES cases
o For market share liability product must be truly generic (all the same)
 If not generic then cannot apply market share liability

24
Negligence

Proximate Cause
 Proximate cause
o The legal cause
o Scope of liability
o To limit liability: 1)duty rules creates limit to a duty 2)proximate cause/ scope of
liability mechanism to limit liability
 Type of injury is a proximate cause issue
 Who is injured is a duty issue
 Overview
o Even if D breached duty and was the cause there are still instances where you limit
liability
o Examines whether the careless conduct of the D is sufficiently related to the harm
suffered by the P to warrant holding the D liable
o Every compensation system needs a limitation on its scope so that it can operate
efficiently
o If liability extended too far then goals like deterrence and corrective justice become
diluted
o Factors that could affect proximate cause:
 1. Foreseeability of the injury
 2. Intervening Actors
 3. Acts of God
 4. General social and economic policy goals
 Proximate cause issues: look at each to see if there is an issue
o Unforeseeable type of harm
o Unforeseeable manner of harm
o Unforeseeable extent of harm
 Palsgraf case
o Facts: man with fireworks wrapped in newspaper tries to get on train, employees
from R.R. push him onto the train but knock package out of his hands, package falls
and explodes, P standing 10-20 ft away injured when a scale falls on her, P sues
R.R.
o Breach: unreasonable to knock package out of man’s hand
o P could not prove R.R. owed a duty to her
o P was unforeseeable b/c standing 10-20 ft away
o Cardozo says: P needs to be in the zone of risk to be owed a duty
 P needs to be foreseeable
o Foreseeable:
 Unreasonable conduct determines who foreseeable P is
 Who could you see being injured by unreasonable conduct?
o Duty rule:
 Duty owed to foreseeable P in zone/orbit of risk
o Proximate cause:
 As long as there is a direct foreseeability/ whether harm is directly traceable
o Problem:
 Cardoza creates problem: limits to specific zone of duty/risk

25
Negligence

 Rescue:
o Cardoza says danger invites rescue
o The rescuer is a foreseeable P whether they are in zone of danger or not
o Owe duty to victim and rescuer
 All rescuers are foreseeable and owed a duty
o Unless there is a foreseeable P or rescuer then no duty
o Rescuers case is separate, not dependent on victim
 Proximate cause
o Combo of public policy, fairness and justice
o Look at directness vs. number and kind of intervening forces, foreseeability of type
of harm, and time and space
o Can limit liability through who foreseeable P is and proximate cause
o Key difference:
 Limits by duty decided by judge
 Limit by proximate cause issue goes to jury
 FORESEEABLE PLAINTIFF
o TEST: Whether the defendant should have reasonably foreseen, as a risk of her
conduct, the general consequences or type of harm suffered by the plaintiff (+ no
superseding force).
 The TYPE of harm needs to be foreseeable, not the manner or the extent.
o Even if the type of harm was foreseeable, the defendant could be
relieved of liability of there was a superseding intervening force.
 TYPE OF HARM
o Look to the unreasonable conduct
o Is the injury suffered by the plaintiff the same kind that made the conduct
unreasonable?
o General rule:
 The majority from Juisti (hotel fire case) is: as long as Ds negligence
created a reasonably foreseeable risk of the general kind of harm that
befell the P, the exact way or precise manner the harm occurs does not
matter for purpose of scope of liability
o Risk rule: what are the risks
 The actor should be held liable only for the harm that was among the
potential harms (the risks) that made the actors conduct tortious
 Requirement that the harm be within the scope of the risk
 3rd restatement adopts this test
 This test provides greater clarity
o Foreseeable Risk Rule
 What is the specific unreasonable conduct
 Why is it unreasonable (the potential risk)
 Does the harm P experience match the foreseeable risk
 Jury decides if harm is foreseeable

26
Negligence

o Wagon mound case

 Facts: oil spilled in wharf that catches on fire when nearby work on a ship
ignites the oil on water surface and burns down the dock
 The type of harm was unforeseeable-the dock burning down- so there is no
proximate cause: the foreseeable harm is oil getting in slip ways not
burning down the dock
 MANNER OF HARM
o The way the accident came about was so bizarre that it was unforeseeable
o The defendant says owes a duty, breach, cause-in-fact, and the injury suffered is
the type foreseen, but still not liable.
o The way the accident happened was so unforeseeable that we characterize the
intervening force superseding.
 Superseding Cause: the negligence of a second defendant cuts off the
liability of the first defendant.
 Intervening Cause: a third party intervenes but doesn't cut off the first
defendant's liability because it is not sufficient enough.
o D wants to argue injury and be very specific to show it is very unusual so not
foreseeable
 D wants to show that something is so unusual that its superseding: look at
culpability and facts
o P want to be very broad about injury to show not highly unusual
 Intervening forces (under manner)
o Foreseeable harm test:
 1) a reasonably foreseeable result or type of harm
 2) no superseding intervening force
o Superseding cause cuts off liability
 Rule: Culpability + highly unforeseeability(time, space, bizarre) cuts off
liability
 Proximate cause: manner of harm
 To be superseding means it was not foreseeable
 D wants to argue and show that the circumstances are so bizarre (manner)
that the thief’s conduct (intervening cause) was the superseding cause
 P wants to argue that the circumstance is completely foreseeable
 If Ds conduct invites 3rd party criminal conduct then that criminal conduct
cannot be superseding
 Ex: leaving keys in car, then car get stolen and car thief injures
person in accident
 Culpability matters but is not a determining factor
 *The less culpable then the less likely that it will be superseding
 *if intervening force is just negligence it is less likely that it will be
superseding
 *courts don’t find malpractice as superseding b/c it is foreseeable
 *post-accident aggravation is not superseding unless it was highly culpable
and unforeseeable
 *negligence is foreseeable

27
Negligence

o Termination of the risk

 Draws line for liability
 At a point where crime is so far removed, the negligent act transforms to
something else which becomes a superseding act: like a new episode
 Dowdell case:
 Crime at courthouse was foreseeable but the passage of 7 hours and
killing of victim that was miles away was unforeseeable: further
away and passage of time
 EXTENT OF HARM
o The defendant claims that some of the harm is the unexpected kind, but there is too
much liability. There is more than could foresee.
 Suffered more harm than was foreseeable
o EGG-SHELL PLAINTIFF RULE: Take the plaintiff as they come.
 Have to pay for all the damages, not just the ones that could be foreseen
 Applies to mental conditions if Ds negligent conduct causes physical
injuries which aggravates the mental condition of P
 Rule does not apply when only causes mental distress without
physical injury

28
Negligence

Defenses
 Affirmative defenses to negligence
o Not a counter argument to Ps prima facie case
o Burden of proof on D by preponderance of evidence to prove affirmative defense
 Types
o Contributory negligence
o Comparative fault
o Assumption of the risk
o Avoidable consequences
 Contributory negligence
o Unreasonable conduct of P contributes to Ps harm- *not a defense to intentional
torts
o Minority: replaced by comparative fault
o Analytically the same as negligence
o Burden of proof on D to prove:
 SOC –RPPUSSC
 Different SOC for children and professionals (just like regular SOC)
 BoD - B<PL and custom
 CIF- Ps negligent conduct contributed (was substantial factor) to injury
 NO duty or damages
o Just evaluate the P
o All or nothing:
 Even if find small % of contributory negligence then complete bar to
recovery
o Last clear chance rule
 Negligent P could still recover fully against negligent D upon proof that the
D was more culpable b/c he had the last opportunity to prevent the harm
 Last clear chance rule abolished by comparative fault
 Comparative Fault
o Widely adopted majority
o 2 kinds: Pure or Modified
 When courts move to comp fault they use pure, when legislature moves to
comp fault use modified
o Pure comparative fault
 Negligent P recovers some damages from negligent D regardless of the Ps
degree of fault
 CA is pure, minority
o Modified comparative fault
 Ps recovery is barred if the Ps fault exceeds a certain %, usually 50%
 Ex: P is barred recovery if Ps fault exceeds D at 50%
 States decide is 50% or 51%
 Majority of states
o Uniform comparative fault act
 Whether conduct was merely inadvertent or also involved awareness od the
danger involved

29
Negligence

 Probability of the risk

 Gravity of the harm
 # of persons placed at risk
 Significance of what the actor was seeking to achieve by the conduct
 Actors superior or inferior capacities
 Existence of an emergency
 Relative closeness of the Ds wrongful conduct and harm to P
o Problems:
 How does a jury allocate fault?
 When multiple parties assume joint and several liability and just subtract Ps
% of fault
o Avoidable consequences
 Rule:After being harmed P must take reasonable steps to avoid exacerbating
their injuries
 D need not pay for additional harm that P could have avoided through
reasonable care
 Assumption of the Risk
o 3 kinds:
 Express: oral or written words- waivers
 Implied
 Primary
o Express assumption
 When one person gives explicit written or oral permission to release another
party from an obligation of reasonable care
 A contract idea- more contract law
 If recreational sports then waiver is valid
 Limitations:
 Language must be clear and unambiguous
 Cannot be against public policy
 Waiver only protects against negligence, does not protect more than
negligence
 How courts determine if waiver is void against public policy: Trunkl Factors
 Balancing of following criteria: it concerns a business of a type
generally through suitable for public regulation; the party seeking
exculpation is engaged in performing a service of great importance
to the public, which is often a matter of practical necessity for
some members of the public; the party hold himself out as willing
to perform this service in the economic setting of the transaction,
the party invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks
his services; in exercising a superior bargaining power the party
confronts the public with a standardized adhesion contract of
exculpation and makes no provision whereby a purchaser may pay
additional fees and obtain protection against negligence; and as a

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Negligence

result of the transaction the person or property of the purchaser is

placed under the control of the seller subject to the risk of
carelessness by the seller or his agents
o Implied assumption
 A subjective standard
 Ps conduct implies assumption of the risk
 3 elements that D must prove:
 Knowledge of the risk- subjective
 Appreciation/ comprehension of the risk- subjective
 Voluntary exposure of the risk: cannot be coerced
 Courts are divided on what voluntary means
o Primary assumption
 The P is unable to establish the prima facie case for negligence either b/c
the D does not owe a duty or the P cannot show unreasonable conduct on
part of the D
 Nothing to do with assumption of the risk
 No duty
 Ex: When a party enters into a relationship with another knowing and
expecting that the other will not offer protection against certain risks arising
out of the relationship
 Usually applied to sports
 Policy reason: no duty in sports situation because then people would
not engage in these activities
o Rescuer Rule
 Can firefighter recover on negligent conduct relating to activities of job?
 No they are paid to take on risk, they are compensated for any injuries, we
do not want to deter calling 911, job requires danger, public already pays
 Limitation applies as to inherent risks of the activity – Not dependent on P’s
knowledge/appreciation/voluntary exposure
 Results in D’s standard being avoiding intentional injury or reckless
behavior that is totally outside the range of the ordinary activity in the sport.

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Negligence

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