Torts Final Outline

Negligence – is a duty and a breach of that duty. The elements of a cause of action
for negligence are: 1) a duty to use reasonable care, requiring the actor to conform to
a standard of conduct for protection of others against unreasonable risks; 2) a breach
of that duty. Defendant is not liable if there is no duty to begin with; 3) causation
between the conduct and resulting injury; 4) loss or damage resulting to the interests
of another.

Courts can set policy decisions. In some cases, as a matter of law there is not
negligence as a public policy decision even though all elements may be present.
Lubitz v. Wells – golf club left in backyard was not negligence as a matter of law
because there were a lot of golf courses nearby and it was to be expected. Leaving a
shotgun in the backyard would be negligence.

Extraordinary Circumstances – defendant does not have to consider extraordinary

circumstances you should not reasonably forsee as happening. Blyth v. Birmingham –
consider what reasonable pipe installer would expect to happen…freak frost was not
to be expected. Building a house in San Francisco an engineer would take
earthquakes into consideration, but in Philly it would be a freak circumstance
precluding liability.

Likelihood of something happening is not enough - the higher the risk of harm, the
less serious the injury needs to be for liability…if the risk is very low, the injury
would have to be severe. Look at the interests at stake – bodily harm v. flooded
basement. Gulf Refining v. Williams – drum of gas exploding. The risk was
foreseeable and the injury so severe,it should have been forseen. Liability.

The risk must be reduced to a reasonable one. That is the duty of the defendant
– we can concede that injuries and loss of life is okay as long as the defendant
reduces the risks to reasonable risks. Make changes in your conduct or else you may
pay. Chicago v. Krayenbuhl – train turntable case. If train would have used a
locking device on the turntable they may not have been negligent, but they were liable
because they did not take proper precautions to avoid serious injury.

Probability and Magnitude of injury should be less than the burden of changing
defendant’s conduct to avoid the injury – PxM < Burden. Davison v. Snohomish –
county not negligent as matter of law b/c the burden of new guard rail would be too
great. Bartlett case – overturns Davison in this jurisdiction and says it is not a matter
of law but a question of fact whether a guard rail should be built to withstand the
crush of a car. U.S. v. Carroll Towing – bargee off ship, ship sinks; look at likelihood,
magnitude of injury, and cost of adequate precautions.

THE STANDARD OF CARE

1
 ORPP – ordinary reasonable prudent person. Objective standard of care
relative to where the person is located. Sometimes circumstances may change.
Look at what the reasonable person would do under the circumstances. ORPP is
the floor, the minimum standard. If defendant has superior knowledge he must
use it reasonably under circumstances. When ORPP is acting or failing to act he
is always considering PxM v. B. If ORPP passed a purple traffic light, he would
not be liable at the first light, but he must make a reasonable inquiry into new
situations that he does not understand. Vaughan v. Menlove – being stupid is not a
defense, you must act as ORPP would under circumstances, in those days fermented
hay was known to catch fire. Defendant is not held to the standard of the best of their
ability but to that of ORPP under the circumstances. Delair v. McAdoo – ORPP
would know tires are a mess.
If a caveman is in NY crossing the street against traffic, and gets hit…the driver of
the car would not be liable because ORPP in NY would know how to cross the street.

Customs and usage – customs can only be used as evidentiary support to prove
you acted reasonably under the circumstances. Just because something is
custom and everyone does it, that doesn’t mean it is a reasonable custom or that
it was reasonable under the circumstances. To use a custom as a defense you
must prove three things:
1) prove that ORPP under the circumstances would know about the custom
2) the custom is reasonable
3) in the particular case, is the custom reasonable? Issue is not compliance
v. noncompliance, but acting reasonably under the circumstances. This
will be the ultimate issue.
Customs evidence is probative, you must still prove that you acted reasonably under the
circumstances. Companies will use industry standards as custom in order to show
compliances to defeat negligence suits. However, this is only evidence and juries are not
bound by it. For example, in a mall elevator case the zoning requirements might not be
sufficient if the jury finds a photoelectric eye should be used. Trimarco v. Klein – broken
glass in shower door, customs of landlords. Landlord was liable for not installing shatter
proof glass in tenant’s shower.

Emergency ORPP – standards are the same. You are judged by how ORPP would
act under that particular emergency. Cordas v. Peerless – most emergencies do not
require perfect judgment. In this case, cab driver was not negligent to jump out of cab
after being held at gunpoint. Less needs to be proven in order to meet the standard under
an emergency but you must still act as ORPP. If you swerve to not hit a child, and hit a
car instead, you are not negligent because it was an emergency situation. Creating an
emergency can be negligent, or sometimes you can be negligent if you do not anticipate
an emergency.

Handicapped ORPP – hold handicapped person to the standard of ORPP with that
handicap. Take people as you find them. Roberts v. Louisiana – blind man not liable
for injuring man’s hip because he was acting reasonably under his circumstances..
Sometimes physical challenges like height may be taken into consideration, like if you

2
can’t see over your blown up hood to avoid hitting a car. Seizures or heart attacks are
treated either as emergencies or physical challenges.

Standard of care for children (objective test) – three ways to deal with kids:
1) majority of courts hold children to the standard of care of the reasonable
child of the same age, maturity, intelligence, and experience
2) some courts follow the rule of seven – age zero to seven no liability; age
seven to fourteen incapable, but it could be shown; age fourteen to
seventeen presumed capable but could be proven not liable.
3) Hold child to the adult standard of care when they engage in inherently
dangerous activities. Some courts hold differently when children are held
to adult standards and say when children engage in activities that
normally only adults engage in. Robinson v. Lindsay – child driving
snowmobile is liable because driving is inherently dangerous activity.
4) Some scholars suggest that when the child is a defendant you should
always hold him to the adult standard because he risks harm to others;
but when he is the plaintiff and exposes himself to harm, hold him to the
child standard.

Standard of Care of insane people – General rule is that insanity is not a defense.
Black letter law is that you hold insane people to standard of ORPP under the
circumstances. In a sudden onset of insanity, you must prove two things:
1) it was a sudden onset or delusion
2) it affected your ability to understand your duty or standard of care.
Breunig v. American Family – woman seeing God suddenly properly left to
the jury because if it can be proven it was a sudden onset that impairs your
ability to understand your duty, liability might be cut off.
Retarded people – not many cases where retard people are sued for negligence. Lack of
assets, could sue their caretakers.
Lynch v. Rosenthal – said consider circumstances of retarded person.
Court overrules in different case saying this would be a slippery slope to consider
everyone’s mental capacity and not good for policy reasons.
Seizures – if you have sudden one, maybe not liable but if you know you have
them you will be help to the standard of ORPP under the circumstances.
Gould case – dealt with Alzheimer’s. Court ruled it was not a physical
impairment but a mental one.

THE STANDARD OF CARE FOR PROFESSIONALS

We hold professionals to the standard of a member of that profession under the
circumstances in good standing. Restricted to what courts actually consider a
profession. Heath v. Swift – pilot could be held to the standard of the ORPP pilot. Three
ways a professional can be negligent:
1) you must have necessary skill and training (even if falsely pretending to
be a member of that profession)
2) must exercise your skills with due care (use that skill)

3
 3) must use discerning judgment to a reasonable degree of a professional in
good standing. Hodges v. Carter – lawyer serving process to insurance co.
was not negligent because he acted as ORPP lawyer under the circumstances.

Legal malpractice – plaintiff must show that if the attorney wouldn’t have deviated they
would have won the case and show what damages would have been. Must be a credible
damage figure. Some courts say that even if judgment would have been for a certain
amount, the damages would have been uncollectible or only some of it would have been
collectible. Legal malpractice in two circumstances: 1) blowing the statute of limitations;
2) cannot reject settlement offers, because client has that right. Often times an expert
witness will be needed to prove what the reasonable lawyer would have done.

Medical Malpractice – five factors:

1) contract not necessary – it is common law
2) you could get a contract but a breach of the contract is not necessarily
malpractice
3) you need an expert to prove what a member in good standing would do unless
the MALPRACTICE IS SO OBVIOUS EVEN A LAY PERSON WOULD
RECOGNIZE. Boyce v. Brown – expert witness did not prove what doctor
should have done so no malpractice was proven.
4) a bad result is not enough
5) you can still show that a member in good standing would do more, following
customs may not be enough if not reasonable under the circumstances.
Locality rule – traditional standards were hold Doctor to ORPP doctor in
that locality under the circumstances. Led to conspiracy of silence and
substandard care in rural areas. Morrison v. McNamara – says hold doctors
and medical professional to a national standard of care. However, most courts
say hold doctors to standard of care of a same or similar locality. Not a national
standard in all courts as of yet.
Customs evidence is given more weight in medical malpractice cases. Three
cases where court rejects customs of medical professions (more and more courts
are starting to let triers of fact question the reasonableness of customs):
1) Helling v. Carey – 23 year old with glaucoma was not tested because
standard was not to test until 40 – court held negligence as a matter of
law. Which legislature overturned.
2) U.S. v. Quantas – plaintiff received tainted blood, and was allowed to
show that customs were unreasable.
3) Incolligno v. Ewing – custom of prescribing drugs over phone is
unreasonable
Two Schools of thought doctrine – minority and majority approach. So long as
defendant shows evidence that his procedure was something a member of good
standing in that school of thought would follow, court should not question.
Defendant must be judged by the ORPP doctor that follows that same school of
thought. Judge them according to their area of profession such as acupuncture,
psychiatrist, etc.

4
 Cause of action for lack of informed consent Scott v. Bradford – hysterectomy
making her leak urine. (very controversial):
1) doctor must tell you:
a) all material risks
b) all alternatives
c) all risks to alternatives
d) risks and dangers of doing nothing
2) must be damages
3) you have to show you would have acted differently if you had been
properly advised.
Exceptions to lack of informed consent cases:
a) if it is an emergency
b) if it is not in the best interests of the patient
c) when the patient should know
- informed consent very controversial. The doctor may feel he did nothing
wrong in the procedure. In some states like Georgia informed consent is
only used in fraud cases. In Pennsylvania, informed consent can be tried
as part of a battery case. This is significant because if done this way, the
need for a patient to testify that they would have done something different
and the ORPP requirement are both gone. The Cassels case held this.
This is extremely controversial.

A doctor has a duty to disclose to personal interests to his patients, such as

possible economic or research plans connected to patient’s treatment. Moore
v. Regent – hairy cell leukemia being used for research. Falls under informed
consent – would patient consent to the procedure if they knew an underlying
motive existed? Doctor should have told patient he planned to do the research
because that may have affected plaintiff’s decision.

1980s – doctors were complaining about too many malpractice suits. At the same time,
insurance companies were saying premiums were too low. Patients were claiming too
much incompetence. Doctors got insurers to add a clause to say that they could no longer
settle without the doctor’s approval. Doctors also began practicing defensive medicine
by ordering millions of tests to avoid malpractice. Insurance companies raised rates
tremendously, and the legislatures responded. 4 different pieces of legislation were
passed:
1) legislators acknowledges crises. They enacted statutes and put a cap on
damages first. The cap was on pain and suffering, and all damages. In some
jurisdictions the all damages part was struck down.
2) Went after attorneys and cut the % of fee each time the amount gets higher.
3) For medical malpractice rewards, insurance companies did not have to put up
the full check, they could give the money per term. That way, if the person
died, the estate could not collect, the insurance company was allowed to stop
paying.
4) Legislatures created a board with medical experts, legal experts, and other
professionals. The case would have to be tried before them. Kept these cases

5
 out of the court system. It was challenged in PA and went to the PA Supreme
Court. The court said in view of the evidence that it took 7 years to reach the
panel, it was justice delayed being justice denied. This system was struck
down in PA.

Negligence as a matter of law

Judgment as a matter of law says that ORPP would always or ORPP would never. Very
difficult to determine. When something is held as negligence as a matter of law, the
judge can:
1) uphold it
2) overrule it – things may change
3) say we are not bound to follow it, it was only dictum.
Courts formulate rules to regulate standard of behavior, but they are sometimes too
inflexible, which is why they can be either upheld or overruled. Pokora v.Wabash – the
rule to stop look and listen was ridiculous, so it cannot be held as negligence as a matter
of law.

Ways to determine standard of care:

1) matter of fact for the jury – most negligence cases follow here
2) rules of law (rare)
3) legislature/statutes determine standard of care
4) negligence per se – legislature does not say this is what the standard of
care should be, but the court says that the statutes says what the standard
of care should be. The judge determines the intent of the statute.
Judicial inquiry looks at two things:
a) was plaintiff in the class of persons that the statute was enacted to
protect?
b) Is this one of the risks that they had in mind when the statute was
enacted? Osborne v. McMasters – poison bottle violated statute and
it is negligence when statute imposes duty and the duty is breached.
- sometimes regulations can be used to determine negligence per se such as in
Stachniewicz v. Mar cam with drunken Indians where a regulation that was
designed to protect bar patrons was used to prove negligence per se.
- two different interpretations of a statute does not matter. You must look at
the intent of legislation 1) legislative history; 2) events that led to the
enactment of the legislation; 3) legislative history in other jurisdictions. It is
up to the judges discretion. Ney v. Yellow Cab – public safety v. traffic
regulation not important, must look at intent of the statute which was for public
safety not to leave keys in car.

Perry v. S.N. & S.N. – statute criminalizing the failure to report child abuse if you are
made aware of it. In this case, there is no common law duty to report. This case proves
that using statutes as the standard of care is up to judicial discretion. It is up to the judge
to decide whether or not the statute will be adopted as the standard of care. Factors the
court looked at to reject this statute as the standard of care: 1)statutes merely restate what
is already established and how to meet duties of care, but in this case there was no

6
common law duty; 2)this would impose negligence on those who fail to act, and most
negligence cases are based on acting wrongly; 3)this is an unclear definition; 4) court
worried about negligence out of proportion for what they did or did not do.

Martin v. Herzog – very famous Cardozo opinion. A buggy was struck by a car, buggy
did not have headlights on. Cardozo says that an unexcusable violation of a statute is
negligence per se, but you must show a causal link between the violation of the statute
and the harm done.

Three ways statutes are used to determine the standard of care (procedural effect):
1) negligence per se
2) a presumption of negligence that can be rebutted with a reasonable
excuse
3) violation of statute is only evidence (only a few jurisdictions)
(administrative regulations usually used as just evidence in most
jurisdictions)
Zeni v. Anderson – no negligence per se for violating snow path statute,
because compliance to the statute would have caused a greater
risk of harm to her and third parties if she walked on other side of road.

Two types of statutes that do not allow for excuses and will always be negligence per
se (absolute duties):
1) child labor laws
2) pure food and drug act

Negligence per se:

1) when the statute is used to determine the standard of care
2) civil procedure effect – given to statutes to use to determine negligence.
Can they present evidence to excuse the negligence? Focus should be
were you negligent under the circumstances?

PROOF OF NEGLIGENCE
3 Types of Evidence-
1) real evidence – the car drove while in park. It is what it is. Absolute.
2) direct evidence – someone testifies as to the evidence. This is more
common.
3) circumstantial – when fact A exists, so almost always fact B exists. This
type of evidence can be weak or strong.

Plaintiff has the burden of pleading and production – requiring the plaintiff to
produce enough evidence on each element to show that more likely than not there
was a duty, breach, factual and legal causation and an injury. Plaintiff also has the
burden of persuasion to convince the trier of fact (judge or jury) that more likely
than not there was a duty, breach, factual/legal causation, and damages. The
defendant wins if the burden of production not met, and the defendant also wins if
the jury cannot decide if the elements have been met.

7
Slip and fall cases (banana peel cases). Most slip and fall cases rely on
circumstantial evidence. Three theories:
1) defendant created the condition causing the slip and fall. If defendant
created the condition, they are negligent because you fell under that
condition. Jasko v. Woolwerth – serving pizza on wax paper was creating a
dangerous condition.
2) Defendant had actual knowledge of the condition even though they didn’t
create it, so their duty is that they need to go take steps to clean it up.
3) Defendant did not create or know about the situation, but the condition
was there long enough that ORPP would have known of it and would
have cleaned it up. (Most common). Lies in the amount of time the
condition existed and proving with evidence for a jury to consider.
- Goddard v. Boston RR – relied on unreasonable period of time for banana peel
to be there. Plaintiff did not meet the burden of production to produce evidence that the
peel was there for an unreasonable amount of time.
- Anjou v. Boston Elevated – trial court says burden of production not met and no
evidence that the peel was there a long time; appellate court reverses saying enough
evidence was produced and it could have gone to a jury.
-Joye v. Great Atlantic – burden of production not met, no evidence the peel was
there a long time.

Res Ipsa Loquitur – the thing speaks for itself! Some events, when they occur, are
almost always due to negligence. Res ipsa helps the plaintiff meet the burden of
production.
Old Requirements for res ipsa –
1) the thing was under control of the defendant
2) accident ordinarily does not occur without negligence. Byrne v. Boadle –
flour falling on guy’s head out of 2nd floor of factory was ruled negligence
because a barrel cannot fly out of the window without negligence.

New Requirements for res ipsa loquitur – McDougald v. Perry – changed it to

defendant being most likely source of negligence – spare tire mount being faulty and the
tire flying into other car’s windshield would not ordinarily happen without negligence.
1) it is a type of proof for negligence
2) two foundations:
a) the event ordinarily does not happen unless there is negligence
b) if there is negligence, is defendant the most likely source?
3) Procedural effect –
a) majority of jurisdictions say that it is just evidence of negligence,
jury not required to find negligence – Sullivan v. Crabtree – plaintiff
sues driver of truck for death of his son. Court concludes res ipsa is
circumstantial evidence that the jury can agree with or disagree with
to use in its decision whether defendant was negligent.
b) few jurisdictions say it creates a presumption of negligence and the
defendant must give evidence that he was not the source

8
 c) some jurisdictions switch the burden of persuasion to the
defendant

- woman sits in chair, chair cracks and breaks. Woman could not proceed on res ipsa
loquitur theory because she was the person sitting on it.
- coal miner up to chest in debris. Friends put him in the back of the station wagon, stop
and get crutches, take him to Dr. Dr. says go to hospital two hours away, they take him.
He has surgery on his leg. Shortly after he is paralyzed in his arm. Res ipsa loquitur?
No because there were too many other possibilities.

Usually, you cannot use res ipsa loquitur against multiple defendants. Larson v. St.
Francis – chair flying out of hotel window, no negligence because you couldn’t prove the
hotel was in exclusive control of the chair, a guest could have thrown it out. Two
situations where res ipsa can be used against multiple defendants:
1) they are not multiple defendants, but rather agents from one entity. i.e.
two drivers employed by one company, collide and the debris hits
someone, the employer could be sued under res ipsa with both defendants
acting as agents of that company.
2) The court concludes the two parties owed the plaintiff a joint duty
a) common law – i.e. a tenant and landlord both owe pedestrians the
duty of clearing snow and ice off of their sidewalks
b) contract – i.e. Corvettes case, department store and escalator
company enter into contract to maintain escalator, owe joint duty
to patrons to keep escalator safe.
- Ybarra v. Spangard – demonstrates a situation where the court creates
an exception and allows res ipsa against multiple defendants. Court holds
all defendants liable for injury to man who had appendix surgery because
they court says they all owed him a joint duty to care for him while
unconscious. This was controversial because it broke all the legal
relationships that the hospital created to avoid liability (independent
contractors as surgeons).

Res ipsa loquitur v. Negligence per se

1) Negligence per se – attempting to use the statute as the standard of care.
This is a shortcut to proving negligence. To use the statute, the judge
must be convinced that:
a) party using the statute is the class of persons protected by the
statute
b) evidence that the scenario is one that the legislature had in mind
when creating the statute
c) after all that, it is still up to the judge’s discretion
d) procedural effect – in most jurisdictions you could show an excuse
to refute and say why you violated the statutes, some jurisdictions
say it is a presumption of negligence, few say that it is only
evidence.

9
 e) Role of jury – was the statute in fact violated? Was there a causal
connection? Damages? How much?
f) If court concludes the standard will not be allowed to be
determined by the statute, you could still always make a case
under common law without taking this shortcut.

VERSUS
2) res ipsa loquitur
a) a type of proof to help the party meet the burden of production
b) two foundational predicates:
1)an event that occurred ordinarily does not happen in the
absence of negligence
2)if there is negligence, is defendant the most likely source?
c) procedural effect – majority jurisdictions it is evidence of
negligence.
d) Switches burden of persuasion onto the defendant to prove he was
not the cause.

Causation in Fact
Sine qua non – “but for test” in the vast majority of situations, the defendant’s
conduct was the cause of the plaintiff’s injuries, the plaintiff’s injuries would not
have resulted “but for” the defendant’s negligent actions.
- Perkins v. Texas – prime example of but for. Even at the proper speed limit
there was no evidence that the train still wouldn’t have hit the car crossing the
tracks. The result would have happened even without the negligence so it was not
a cause in fact.
- Gentry v. Douglas – burden of production not met on issue of causation. It is
not enough that defendant’s negligence coincides with harm, it must be THE
CAUSE. In this case, he could not identify what made him trip, if it could be
proven it was the faulty steps, then causation would be proven. But the gunshot
happened because of a trip from an unknown cause.
- Reynolds v. Texas – woman falls down railroad stairs with no railing or lights in
highway. Plaintiff met the burden of production to prove that where the
defendant’s negligence greatly multiplies the likelihood of the injury, it is not
enough to say that it MIGHT have happened even without the negligence. So in
this case the railroad could be held liable.

When the issue of causation is obscure, you will need to use expert testimony to
prove your case. The expert should say to a reasonable degree of medical certainty,
the injury was caused by the negligence. Lay people would have no knowledge and
it is not obvious to an ordinary member of the community.
- Kramer v. Wilkins – man hit with glass by transom, develops skin cancer after
injury. Medical expert could not prove that more likely than not the injury caused
the cancer.
- Wilder v. Eberhart – stomach stapling surgery, plaintiff’s expert says injury
happened because of mobilization of esophagus. Defendant’s experts showed

10
 other possible causes even though none of them were more likely than not the
cause of the injury.

Loss of chance – if the defendant’s conduct cannot be shown to have necessarily caused
a later event to come about, but can be shown to have increased the risk that that later
event would happen, and the later event does in fact happen, doctors in some courts may
be held liable even if the patient may have died of the condition with the proper
diagnosis. Loss of chance is used in courts to determine with the help of an expert
witness the amount of plaintiff’s life, and to figure out a percentage of the deprived
chances of survival. Multiply those two numbers, and award those damages. Damages
usually only available for lost wages and medical expenses. Herskovitz v. Group Health
– man whose chances for survival were diminished from 39% to 25% by doctor’s
negligent failure to diagnose with cancer was able to recover some damages because of
loss of chance.
- under old negligence rules…
Greater than 50% chance – full recovery
Less than 50% chance – no recovery
Loss of chance rule - % of liability
- Fennel Case – rejects loss of chance rule in a case where the patient never died.
Says there is no real damage without a death, so we cannot say that more likely
than not the defendant doctor’s negligence caused any harm even though the
patient’s chance of survival was severely diminished.

Scientific evidence – what makes scientific evidence reliable? Must focus on

methodology.
1) peer review/published
2) did it follow the scientific method?
3) Can defendant present their own evidence?
4) Evidence must show bendectin caused the defects
5) Relevancy to case – does it help establish causation?
Usually courts have a hands off approach to scientific evidence. They leave it to the
opponent to discredit testimony. Daubert v. Merrell Dow is important because it leaves
some responsibility to the court to examine if scientific testimony is accepted and if the
testimony was acquired by proper methodology that a scientist in good standing would
use.
1) submit statistical evidence that establishes causation
2) does your jurisdiction accept such evidence?

Daubert – says statistics must more than double the chance of harm to establish
causation. This was a bendectin case where minors were suing for their birth defects
that came from their mothers taking bendectin while they were in utero (more than
double – more likely than not or preponderance).

Concurrent Causes – if two independent acts of negligence combine to cause one

indivisible injury, then all negligent defendants will be held jointly and severally

11
liable. If A and B run over one separate arm on plaintiff, they are not concurrent
causes because both arms represent separate injuries.
- Hill v. Edmonds – collision caused by both truck without flashers and car not
stopping in time. These were concurrent causes of the injury. When separate acts
of negligence combine to cause injury, they are both liable even though their act
alone might not have caused the injury.
- Substantial factor – where each of the two events would have been
sufficient by itself to bring about the harm, the test for each event is often
said to be whether it was a substantial factor in bringing about the harm. If
so, the harm is a cause in fact. It negates the need for the “but for” test. The
test is that the defendant’s negligence must be a substantial factor of
plaintiff’s injury.
I cause a fire, and Professor T drops in a match. Her match was not a
substantial factor of the harm from the fire.
Multiple Sufficient Causation – all causes will be liable joint and severally even
though either one could have destroyed plaintiff’s property.
Anderson v. Minneapolis – two fires merged to destroy plaintiff’s property, both
fires caused the damage and defendant was held liable.

Independent Alternative Causation (policy decision most jurisdictions accept):

1) all defendants are present
2) all defendants are negligent
3) plaintiff does not know which defendant’s negligence caused his injury
(shifts burden of proof onto defendant to prove it was not their negligence
to avoid liability…with either the use of expert testimony or other
evidence)
4) if defendant cannot prove it wasn’t them that cause the injury, all
defendants will be held jointly and severally liable.
Under normal negligence rules, the plaintiff’s burden would not be met in these types of
cases but for policy reasons the courts wanted plaintiff’s to have remedy in these types of
situations.
- Summers v. Tice – establishes this rule. Two men shoot friend, do not know
which bullet actually injured him. Both defendants held liable to plaintiff
because they cannot prove it WAS NOT their bullet that hit him.

Market Share Liability Theory – if all defendants combined had a substantial share
of the market for the particular item in question, and all defendants were negligent,
the burden is shifted to the defendant to prove that more likely than not, they did
not produce the drugs that injured the plaintiff. If they cannot prove this, the court
will divide up the share of the market they had and they will be liable for that
amount.
a) some courts reject
b) defendant may try to prove limited area of distribution, time frames,
color of pills, different instructions, etc.
c) what will the court consider a substantial share?

12
 d) Sindell v. Abbott – DES case, woman could not prove that the DES her
mother took was from any certain company, but she got 90% of the market
share of DES makers and sued. They were held liable for their respective
shares of the market.
e) Hymowitz v. Eli Lilly – adopts Sindell rule but precludes defendant from
proving they could not have produced the pill, automatically hold company
liable for their market share. Only preclusion from liability is having never
produced the drug at all.
f) What about possible defendants that are defunct or plaintiff cannot
obtain jurisdiction over? In some jurisdictions the plaintiff eats the loss,
in others they divide that share amongst other defendants to split.

Legal Causation
Once cause in fact has already been established, sometimes a decision needs to be
made whether liability should still be imposed. Where do we cut off liability? If
defendant’s negligence is not a cause in fact of plaintiff’s injury, then it cannot
possibly be the legal cause. There are 4 types of cases where legal causation can
come about: 1) unforeseeable consequences; 2) intervening causation; 3) public
policy; 4) shifting liability. Two things to think about: 1) distance in time; 2)
distance in space (these two elements can help cut off liability especially if combined
with other factors).

Unforseeable Conequences
Proximate v. Remote Rule – there is liability if the harm is proximate, but not if the
harm is remote. What is proximate harm? It is natural, ordinary, expected.
Remote harm is accidental circumstances that make the result uncontrolled by the
defendant. There are variables out of the defendant’s control.
- established by Ryan v. New York Central R.R. Railroad negligently allowed fire
to start on engine that started a woodshed on fire, which spread to plaintiff’s house.
Defendant was not negligent because only the first thing (woodshed) that caught fire was
proximate and all other harm was remote. The distance of the house was irrelevant.
New York later modified this rule to allow recovery of the first adjoining land owner that
is not the defendant whose house caught fire.

Eggshell Plaintiff Rule – the rule of legal causation in personal injury cases is that
the defendant must take the plaintiff as he finds him. This was a big move because
courts were weary of emotional distress cases. This rule works in most jurisdictions
where the plaintiff had pre-existing physical conditions. Bartolone v. Jeckovich –
man was in car accident and after back surgery he was no longer able to work out and
maintain fitness. Come to find out he was psycho about working out because he feared
doctors after his mother died of cancer. He goes schizo and is permanently disabled. He
was allowed to recover; court said the accident caused by defendant was the legal cause
of his reaction that triggered his pre-existing mental condition.
Cahill case - Defendant cab driver is speeding, hits man who was a drunk. He
gets delirium tremens in the hospital and dies. State sues the defendant. Expert
says the delirium tremens would have come on eventually anyways and he didn’t

13
 have long to live. Defendant argues that he should not be liable because he would
die anyways. This is a slippery slope – we’ll all die eventually. The alcoholism
was only relevant to limiting damages, not precluding liability.

Direct Consequences (Polemis) Rule – to establish liability, the plaintiff must prove:
1) defendant was negligent.
2) Defendant exposed plaintiff to a risk of harm, but an unforeseeable
consequence came about.
3) There was a direct link between defendant’s negligence and the
unforeseeable risk.
For a direct consequences case, all factors of the rule must be in place at the time of
the defendant’s negligence. The defendant acts in a set stage and there is no
intervening cause.
In re arbitration Between Polemis and Furness – plank falls where gas was
leaking on ship and causes an explosion, setting fire to ship and destroying it. Owner
sues charterers for value of the ship, charterers claim the damages were too remote.
Defendant charterers were held liable in that the damages were a direct result of the
defendant’s negligence because defendant’s negligence brought about the unforeseeable
consequence (the spark).

Rule of Forseeable Consequences – if something came about that ORPP would not
reasonably forsee, there will be no liability. Defendant can only be held liable for
consequences that are foreseeable at the time of his negligent act.
- Overseas Tankship v. Morts “Wagon Mound 1” – Wagonmound ship moored
and docked and discharged oil into the water. The oil was ignited by molten metal
dropped by plaintiff’s workmen falling on cotton pieces in the water. In this case, there
was no liability because the oil and cotton catching fire while in the water was
unforeseeable. (in this case the plaintiff did not really argue too much for foreseeable
consequences because of the risk that defendant would claim contributory negligence)
- Wagon Mound 2 – same scenario except the plaintiffs were the owners of the
two ships that were burnt as a result of the fire. In this case, the court held that the
wagon mound was liable because the ORPP seaperson would know that oil can still
ignite on water. Even though it is rare, the magnitude of the harm is so great that it
should be forseen.
Rat poison on stove burners in restaurant. Explodes. Under Polemis – risk of harm of
the explosion is unforeseeable, but still negligent for leaving near food so you could
recover for injury after the explosion. Under Wagon Mound – no recovery because no
forseeability.

Cardozo Test – you owe a duty to those in the zone of danger. What is the orbit of
danger? ORPP would perceive the reasonable zone. The risk is reasonably
perceived. Palsgraf v. Long Island R.R. – two men with fireworks jump onto train and
train employees help them get on safely. One man loses his package and it explodes,
supposedly causing a scale to knock over and injure plaintiff. Cardozo says that the
plaintiff failed to even show that there was a wrong done to her in order to prove
negligence. This case historic because it establishes the Cardozo zone of danger test.

14
The dissent in this case by Judge Andrews introduces another theory:
Hindsight Rule (Majority of jurisdictions prefer this over Cardozo Rule) – what is
important is NOT what risks ORPP would anticipate prior to the negligence, but
once the negligence comes to fruition, is the plaintiff’s injury that she is seeking
compensation for extraordinary or expected?

Kinsman Rule – if the same risk that defendant risked comes about, defendant is still
liable even if unforeseeable consequences occur.
- Kinsman Transit Case – defendant dock owner negligently moors boat, ice
forms, breaking the boat free and it floats into another ship, and the two ships into a
drawbridge before it can be opened and floods a huge area. Defendant held liable for
the damages under the Kinsman Rule that was created.
- Kinsman 2 – grain stored in warehouse – grain could not be moved because of
the damaged bridge, loss of expected profit. Economic loss. Liability was cut off
because courts will not award for economic loss if defendant is merely negligent.
- Florida – defendant negligently installs telephone pole. There was a snow
storm, knocks the pole onto a car. Act of God is snow. Risk you create is falling of the
pole. You created it, it happened, you are still liable. The only way the defendant would
not be liable would be if the act of God brought about a totally different result.
- build a house – negligently attach the roof tiles. Hurricane blows roof off. First
you must prove negligence; then, the act of God does not preclude liability if the risk you
created comes about. Risk was the roof would fall off, just cause the hurricane blew it off
doesn’t matter, defendant still liable.
- Yun v. Ford – stupid man crosses highway after spare tire, and the idiots sue
everyone under the sun. Courts decide to cut off liability because plaintiff’s actions were
highly suicidal and extraordinary.

Intervening Causes
Intervening cause happens after defendant’s negligence, and contributes to that
negligence in producing plaintiff’s injury, but does not break the causal connection.
Kinsman Rule can apply to intervening causes in the case of Acts of God – you would
still be liable (Florida hypo). If the intervening cause brings about the same risk that is
risked you will still be liable. Criminal acts break the Kinsman rule down sometimes.
Derdiarian v. Felix – if you risk a risk of harm, and it comes about, but there is an
intervening cause…it will not break the causal connection if the risk is foreseeable.
So there will still be liability. In this case, the work site was not properly guarded with
a dirt mound, so the risk was that someone would drive into it…the fact that the man
drove into it in a seizure, does not matter, the risk that was risked still came about and
defendant should have forseen this happening regardless of the intervening seizure.
SAME RISK SAME HARM – LIABILITY because intervening cause is not superseding.

Four ways that the intervening cause can still hold defendant liable even if causal
connection is broken:
1) if you are a bodyguard, your job is to protect, you will be liable for
negligence if that person is injured.

15
 2) If you defeat the protection of someone’s self. i.e. if you turn off
someone’s alarm system to install the cable, and don’t turn it back
on when you leave, their house gets robbed…cable company
would be liable for defeating the plaintiff’s method of self
protection.
3) If you are in charge of a criminal, and they escape, you are liable
for their actions after escape.
4) Defendant brings into association with plaintiff a person whom he
knows or should know to be peculiarly likely to commit crime,
under circumstances creating a recognizable unreasonable risk that
he will do so. i.e. hiring security guard with violent record and he
takes his keys to beat the shit out of someone.

Intervening superseding causes – some but not all intervening causes are sufficient
to prevent defendant’s negligence from being held to be the legal cause of the injury.
These are superseding causes because they supersede or CANCEL defendant’s
liability. Watson v. Kentucky & Indiana – gas leaks and fire starts from a match.
Disputed testimony over whether defendant lit a ciggie and it was an accident, or
whether with malice, he threw it in to start a fire. If he had malicious intentional
criminal motives, it was a superseding act precluding the defendant’s liability for letting
gas leak.
- Fuller v. Preiss – if defendant is sane when he commits suicide, the suicide is a
superseding cause and defendant will not be liable. If the defendant’s negligence causes
plaintiff to go insane and he commits suicide as a result of an irresistible impulse,
defendant’s negligence is legal cause and he will liable.

Rescue Doctrine: a rescuer will be precluded from liability if:

1) defendant was negligent to the person rescued and such negligence caused
the peril or the appearance of peril
2) the peril of appearance of peril was imminent
3) ORPP would have concluded that such peril or appearance of peril
existed.
The rescuer acted with reasonable care in effectuating the rescue.
- rescuer can sue the defendant that made the rescue necessary in the first
place under McCoy v. American Suzuki where he pulled over to help the Suzuki driver
whose shitty truck rolled over and Suzuki was liable to the rescuer for even negligently
making a product that required him to rescue the dude and end up getting bashed in the
process.
- if person that needs to be rescued creates the risk, the rescuer can sue them if
they are injured in the process of rescue.
-rescuer can ONLY be sued if he does not use reasonable care.
Cardozo says DANGER INVITES RESCUE

Fireman’s Rule – if a professional rescuer is on the scene, another rescuer will not be
liable. If you are a paid worker and you get injured, your salary covers the cost of
injuries so you cannot sue the person you rescued.

16
Dependant v. independent intervening causes – if a patient is not completely healed
from a surgery, and bungee jumps, and injures it more, the doctor might still be
liable because the injury was not healed and 2nd injury is dependant on the
negligence. But if you were completely healed and bungee jump, and reinjure
yourself, the doctor will not be liable.

Public Policy
Kelly v. Gwinnell – progressive New Jersey Supreme Court case. In this case, a man left
a party at a friend’s house and got into a car accident while driving drunk. The victim of
the accident sued the social host of the party for negligence in serving the man till the
point of intoxication and letting him drive. Court finds social hosts liable as a matter of
policy. Many jurisdictions have not imposed liability in this situation.
- Negligently entrusting your vehicle to someone who should not be driving –
every court will hold you liable. You will be liable for entrusting your vehicle to drunk
persons or persons with bad driving records that you should know of.

Enright v. Eli Lilly & Co. – this is a prime example of the courts managing litigation.
This was a DES case where the granddaughter wanted to sue the drug company because
of birth defects she had as a result of her mother being a baby exposed to DES in utero,
resulting in an abnormal reproductive system. Traditionally, one does not owe a duty to
those not yet in existence. The court says no liability to the granddaughter because as a
matter of policy, liability has to be cut off somewhere. The effects of DES could go on
for generations.

Shifting Liability
Defendant is negligent, but before fruition someone else took control. The responsibility
for the dangerous condition created in part by the defendant has passed to a third person,
absolving the defendant of responsibility. Can be done thru 1) contract; 2) on court’s
initiative.
- city installs wires, installers put wires too close. Spark ensues, harming
plaintiff. Plaintiff sues installers, city responsible for review.

IMPUTED NEGLIGENCE / VICARIOUS LIABILITY

Vicarious liability – imposes liability on someone else for your torts because there is
a relationship between you that the courts say is fair.

Respondeat Superior - let the master answer for his servant. There are two
relationships:
1) employer/employee
2) independent contractors
Big test is control. Employers control employees. In practice control is a
continuum. Employers are traditionally liable for the torts of their employees that
are committed within the scope of their employment.

17
 - originally driving to and from work was outside the scope of employment. Now
with cell phones this rule sometimes fails. Employers have tried to say that you can only
use cell phones if you are pulled over but this is not always a feasible test.
1) were they furthering the employer’s interest? If it can be proven yes, the
employer will be held vicariously liable.
2) pizza men usually acting in the scope of employment even if they are told not
to drive negligently or intentionally hit people.

Old Test – would employers business be furthered except for the tort?
New Larger Test – is this one of the risks the employer brought to the community? Since
the employer enjoys the benefits of the community, hold them liable for risks they bring
to the community.
- if employee is acting for personal means only, cut off liability
- frolic – deviating from job duties. Courts look at how long of a frolic it was,
was the employee on the way to a frolic (cut off liability) or coming back from a
frolic (liability)?
Telling employees not to do things will not avoid liability. For example, telling your
employees not to conduct business in the car on cell phones will not avoid vicarious
liability, but may avoid the employer’s own negligence.
- Lundberg v. State – man driving back to worksite from holiday at home hits
plaintiff head on, killing plaintiff. The state (defendant’s employer) not held liable
because he was not acting in furtherance of his job duties. Court says driving to work
not in the scope of employment unless he is driving somewhere to further his duties to the
employer.
- Fruit v. Schreiner – man on work conference where socializing was encouraged.
He drives to a bar, left, and hit someone’s car. Man brings suit against the guy’s
employer. Court said that whether the defendant was acting in the scope of his
employment was a reasonable jury question, and it was properly left to the jury to find
liability.

Independent Contractors
Old fashioned rule – employer not liable for torts of independent contractor. There are
now some exceptions. Traditionally you would have to sue the employer for their own
negligence to go after them. Control of the employer is the main issue. The more control
the employer can assert over the contractor, it is a master and servant relationship. The
less control they have over the contractor, the more likely it will be held to the contractor
standard of no vicarious liability. 3 factors to look at:
1) how do the parties themselves view their relationship?
2) How is the worker paid by the employer?
3) Taxes?
Three instances where employers will be held liable for the torts of their
independent contractors: (courts concerned that some plaintiffs would go
uncompensated. They will overlook some issues if the employer has deep pockets)
1) statutory duties that the employer cannot delegate away to the contractor,
the employer will be held vicariously liable for the tort of the contractor.

18
 2) When the employer engages in an activity that has such a grave risk or
danger of harm that they cannot be left off the hook. For example, a
skyscraper being built, window installers contracted. They drop glass in
the city, the building company would be liable to injured parties.
3) If you hire an independent contractor for a criminal agenda, in which
case the employer will also be held liable for his own negligence.
- Murrell v. Goertz – man making collections for newspaper smacks the shit out of
a lady who was complaining her door was broken by the paper boy. She sues the
newspaper. Court held that the newspaper could not be liable because they had no
control over the independent contractor. He was hired by someone else that was
contracted, they did not hire him and had no dominion or control over him.
- Maloney v. Rath – defendant’s car hits plaintiff as a result of brake failure. 3
months before he had his brakes fixed by a mechanic and he blamed it on negligent
repair. Defendant was held liable even though he contracted the mechanic to fix his
breaks. The court held that the condition of the faulty brakes created an unreasonably
dangerous risk of bodily harm and the duty to make sure the brakes were functioning
properly was non-delegable to the independent contractor. If you hire someone to
maintain your instrumentalities, you are vicariously liable for their negligence because
the risk of bodily harm is so great.

Joint and Several Liability

Originally referred to intentional tortfeasors. Acting in conjunction to do a tort
together, all parties would be held liable for all torts against the plaintiff. Two
caveats:
1) release of one was a release of all
2) no right of contribution of other joint tortfeasors.

Negligent Joint Tortfeasors:

1) respondeat superior – single duty. Tortfeasor and employer both liable.
2) Multiple torts committed by independent parties, independent negligence
combines to create one injury. (Hill v. Edmunds)
3) Multiple parties tacitly agree to create a risk of harm to a class of
plaintiffs. For example, drag racing on highway, cause injury to a
motorist. Both the person who hit the motorist and the one who did not
are both liable because they agreed to create the risk.
Under common law, plaintiff could get 100% liability from BOTH defendants. Then,
once defendant pays his share, he could seek contribution from the other defendant.
Partial Joint Tortfeasors:
X injures A’s leg – liable for all
Y injures other leg – liable for Y and Z
Z injures A’s arm – liable only for self

Comparative Negligence
$100,000 Comparative Negligence
Def. Gates 30%
Def. Ordinary Guy 20%

19
Def. Broke 50%

1) Most jurisdictions that use comparative negligence say that joint and several
liability still applies. So you can recover 100% damages from all defendants.
2) If the jurisdiction has abolished joint and several liability, the defendants are
only liable for their % of the negligence.
3) In some jurisdictions, if defendant is below a certain % of the negligence they
can only be held severally liable. This abolishes joint and several liability if
below a statutory percentage.

$100,000
Def. Gates 20%
Def. Ordinary Guy 40%
Def. Broke 40%

- if statutory % is 20%, Gates would only be liable for $20,000. Since the other two
defendants are over the statutory percent, they would still be held jointly and severally
liable for the remaining $80,000.

Plaintiffs are only entitled to one satisfaction of the judgment. Any damages paid to
the plaintiff must be credited to all the joint tortfeasors.

Collateral Source Rule – if money paid to the plaintiff is not on behalf of the joint
tortfeasors, the other defendants do not get credit for it. For example, money paid
to the plaintiff by an insurance company or workman’s comp. In medical
malpractice cases the jury must be instructed that defendants have not been
credited because they can consider this when awarding damages.

$100,000
Def. Gates
Def. Ordinary Guy
Def. Broke

Plaintiff and Defendant Ordinary make an agreement. Def. Ord. gets released for
$10,000. If joint and several liability survives, a release of one is a release of all. Now,
there are three different types of modifications in different jurisdictions:
5) some jurisdictions say release of one is a release of one because it
is like a simple contract
6) other jurisdictions say release of one is release of one as long as it
is in the contract and you can go after other defendants
7) other jurisdictions call it a covenant not to sue – can go after other
defendants
in situation 1, Bill Gates would be liable for $90,000.

Bill Gates may feel he deserves contribution. He would seek 1/3 of $100,000 from Def.
Ord. Bill Gates loses if the broke defendant really is broke.

20
$100,000
Def. Gates 20% First question to ask: does joint and several liability survive?
Def. Ord. 30% -if yes, plaintiff can get 100% from Gates.
Def. Broke 50% Gates would then seek $30k from Def. Ord. If Def. Broke really
is broke, then Gates eats the loss of $50k.
- if yes, but over 25%, Gates only liable for $20k.

- if plaintiff releases Def. Ord. for $10k. Does joint and several liability survive?
Def. Gates pays $90k
Def. Broke gives $50k
Leaving $40k unaccounted for
Gates was only liable for $20k. Where does the missing $20k come from?
1) in some jurisdictions, Gates would eat the loss
2) in other jurisdictions, the released defendant would pay the missing $20k,
which would end up being in this case what they would have originally paid
anyways
3) in other jurisdictions, the plaintiff must agree to credit what is higher, the
dollar amount or the % of liability. So, in this case the % of the settling
defendant is greater, so subtract that from what the other defendants owe.
100k
30k
70k left 50k to Def. Broke, 20k to Def. Gates

$100,000
Def. Gates 25%
Def. Ord. 40%
Def. Broke 35%

First question – does joint and several liability survive? If not, only liable for your %. If
one defendant can’t pay, sucks being the plaintiff. If joint and several liability has
survived, many jurisdictions say don’t make the defendants each pay 1/3 equally, make
them pay their fair share. So if Gates pays plaintiff $100k, he can look to Ord. for $40k.
If Broke can’t pay his $35k, Gates eats the loss.
- some jurisdictions say joint and several liability only applies over a certain %, while
others may say that only certain defendant’s are jointly and severally liable. Check your
jurisdiction.

Contribution and Indemnity

Contribution –
1) from those joint tortfeasors
2) unless no legal limitations on the person you seek it from (i.e. you cannot seek
contribution from your spouse)

21
Indemnity in 2 major scenarios:
1) master seeking indemnity for those torts in which he was found vicariously
liable
2) when there is a contract (i.e. apartment leases indemnifying tenants for
injuries happening on the premises)

- Yellow Cab Co. of D.C. v. Dreslin – taxi collides with defendant. Defendant’s
wife sues cab co. Cab Co. pleads contributory negligence of defendant and cross claims
against him for damages to his taxi and for contribution of any sums recovered by the
wife against the cab co. Court ruled he could not be held liable for contribution because
he cannot be held liable for a tort committed against his wife.

Def. Driver 60%

Def. Owner
Def. Husband 40%

Driver cross claimed for $500 damages to his cab. Driver could get 40% of his $500
from the husband. The right to the driver is not for contribution but for indemnity.

Indemnity – liable for everything the other defendant has put out. This never happens.

Defenses

Contributory Negligence
Originally, if the plaintiff was also negligent, he could not recover anything from the
defendant for injuries. This doctrine was very harsh so eventually, as long as the plaintiff
is negligent and his negligence was a cause in fact of the injury, plaintiff could not
recover. This is an affirmative defense that the defendant must prove. The standard is
ORPP under the circumstances. The determination of whether or not the plaintiff is
contributorily negligent is a question for the jury. Sometimes the court makes more
allowances for plaintiff’s conduct; i.e. children and the mentally incompetent.
- Butterfield v. Forrester – plaintiff was riding his horse and got thrown when the
horse tripped over a pole defendant had negligently left in the road. Plaintiff was riding
horse too fast to the court did not allow recovery. THIS CASE IS OLD.
- Davies v. Mann – sets forth the doctrine of contributory negligence. Plaintiff
had his donkey tied on the side of the road. Defendant’s wagon and horses came
speeding along the road and ran over the donkey and killed it. Even though it was illegal
to have the donkey grazing on the side of the road, the court allowed recovery because
the defendant could have avoided the situation if he used proper care. Gets us into the
last clear chance doctrine.

Last Clear Chance Doctrine – still allows for 100% plaintiff recovery even though
they were contributorily negligent. If plaintiff’s negligence comes first, then
defendant’s occurs after, if the defendant had the last clear chance to avoid injuring

22
you, you can still recover for injury even if contributorily negligent. 100% recovery.
4 scenarios for the last clear chance doctrine to apply:
1) plaintiff’s negligence renders him helpless and the defendant had the last
chance, knew about it, and negligently injures the plaintiff. This is more
inclined for the plaintiff to recover. i.e. plaintiff is jogging, passes out,
defendant hits him.
2) Plaintiff’s negligence renders him helpless and defendant does not see it. i.e.
defendant looking in his mirror, runs passed out plaintiff over.
3) Plaintiff’s negligence renders him incognizant, defendant sees it. i.e. plaintiff
jogging with earphones on, if defendant realizes he is incognizant, and still
hits him some courts will allow recovery.
4) Plaintiff’s negligence renders him incognizant, and defendant does not see.
Courts are less inclined to allow recovery here. i.e. plaintiff jogging with
earphones, defendant looking in mirror, last clear chance would not apply.
Anterior Last Clear Chance – defendant’s negligence prevented his ability to prevent an
accident caused by plaintiff’s negligence. Defendant lost the last clear chance and this
doctrine would not apply. The antecedent negligence took away the last clear chance.
(plaintiff would not be able to recover?) The defendant’s negligence comes before the
plaintiff’s and takes away last clear chance.

- there are many issues with the last clear chance doctrine. It is basically
abolished. In all but 4 jurisdictions, contributory negligence is gone and they have
moved to comparative negligence.

Comparative Negligence Jurisdictions

1) Pure system – plaintiff is entitled to any damages she is not the cause in
fact and legal cause of.
2) Not as great as – plaintiff can recover the % of damages she is not liable
for as long as her negligence is not as great as the defendant. (50/50 no
recovery)
3) Not greater than – plaintiff can recover the % of damages she is not liable
for as long as her negligence is not greater than the defendant. (50/50
plaintiff still recovers 50%...only difference from not as great as system)
Most jurisdictions joint and several liability still survives. Some jurisdictions modify and
say it does not survive for certain damages or certain defendants. In comparing the
plaintiff’s negligence versus that of multiple defendants, you collapse the negligence of
all defendants and compare that percentage to that of the plaintiff’s negligence.

Assumption of the Risk

Express assumption of the risk: prior to defendant’s negligence, plaintiff has
expressly agreed to assume the risk. It is like a contract. Is there a public policy
concern to give this assumption full faith? Most circumstances using assumption of
the risk 1) defendant was not under a necessity to provide such service; 2) plaintiff
not under compulsion to engage in that activity. i.e. bungee jumping, skiing.
- if accepted, express assumption of the risk
1) bars recovery, and is a complete defense

23
 2) is unaffected by changing to comparative negligence, still bars
recovery
- to challenge express assumption of the risk:
1) was the risk one of the risks plaintiff agreed to accept?
2) would public policy be violated if the assumption of risk is
accepted?
a) minors
b) service is so integral to the community that it is unfair
(medical)

Implied Assumption of the risk: two kinds: primary and secondary.

1) Primary implied assumption of the risk: defendant engages in an activity with
risks and the risks come to fruition. Some risks of harm are inherent. If the risk is
unreasonable, there is negligence. If the risk is reasonable, there is no negligence.
The risk is inherent in the activity.
a) if the court accepts – bars recovery
b) survives a change to comparative negligence
- i.e. fans at baseball game, gets hit by ball hit on home run. Primary implied
assumption of the risk. The risk is inherent in the activity and the risk is reasonable, no
negligence, recovery is barred.

2) Secondary implied assumption of the risk – defendant breaches a duty owed to

the plaintiff and exposes plaintiff to an unreasonable risk of harm. For some
reason, plaintiff knowingly and voluntarily encounters the risk or remains in the
zone of the risk.
a) plaintiff must encounter risk knowingly – children and mentally incapable
plaintiffs is relevant information.
b) must be voluntary. If the decision is NOT voluntary, the defendant MUST be
responsible for the plaintiff’s lack of choices in order for recovery.
c) in jurisdictions switching to comparative negligence, unreasonable
assumptions of the risk are looked at like unreasonable conduct. In this case you
would treat it like the plaintiff is also negligent and compare the plaintiff’s
negligence to the defendant’s to determine recovery. Oddly enough, a reasonable
assumption of the risk usually bars recovery.
-i.e. driving to Nordstroms on faulty breaks – could recover (unreasonable
to assume risk, compare to negligence of defendant)
Driving a choking child to the hospital on faulty breaks – could not
recover (reasonable to assume risk)
- Rush v. Commercial Realty – plaintiff lived in house owned by defendant with
detached bathroom. Plaintiff had to use the bathroom and assumed the risk of going
over a faulty plank to get there and falls. She was able to recover because defendant was
responsible for her lack of choices.

Failure to take advanced precaution

i.e. failing to wear a seatbelt. In comparative negligence – compare plaintiff’s
negligent seatbelt failure. Finally courts said this did not make sense. Now comes

24
up with failure to take precaution to protect oneself. This might lead to a deduction
in damages. It is unfair to take a % away from the plaintiff.

Statute of Limitations
This is an affirmative defense. If you don’t raise it in the answer you cannot raise it.
The time period often starts when the plaintiff is aware or should be aware that
there are damages. There are also statutes of repose to help mitigate these time
periods.

Limited Duty

Privity of Contract
In situations where there is a contract, the only duty for the defendant to act is
within the contract with his boss. The plaintiff cannot recover because he is not a
part of the contract.
- Winterbottom v. Wright – defendant was a manufacturer of mail coaches, entered into a
contract with the postmaster general to keep coaches in safe condition. Defendant failed
to comply, plaintiff is injured by faulty coach. Plaintiff not allowed to recover because he
was not part of the contract to keep the coaches working in proper order.

Failure to Act
Generally there is no common law duty to act. Courts find it much easier to deal
with malfeasance than nonfeasance. This even applies to medical professionals.
Good Samaritan laws do not impose a duty to act. When is there a duty to act?
1) A pre-existing relationship requires the law to impose a duty.
Mother/child, spouses, daycare worker/child, employer/employee in the
scope of employment
2) Where defendant who was negligent for failure to act had a relationship
with the perpetrator. Tarasoff v. Regents – defendant was psychiatrist
caring for mentally ill man. Mentally ill man tells him that he plans to kill
Tatiana Tarasoff. Doctor decided to let him go after a brief period, and he
actually killed the girl. The parents were allowed to recover against the
doctor for failure to warn the Tarasoffs that Tatiana was in danger. This
opens up the argument that sometimes the Dr./patient privilege must give
way for the greater good. Would this keep people from opening up and
being cured? Could be counterproductive and make the streets even
more dangerous. One thing to remember – in this scenario, there must be
an identifiable victim. If you say you are going to kill someone to your
psychiatrist, they have no duty to warn the whole world that you are
homicidal. See also J.S. and M.S. v. R.T.H. – court held that a wife of a child
molester has a duty to warn the children’s parents of her husband’s tendencies
to safeguard them from child abuse if they are in his presence (for policy
reasons).
3) If the defendant is involved with the event, even if she is not the cause of
the injury to the plaintiff, the courts may impose a duty to act. i.e. Vietro

25
 walks in front of Turezyn’s car, she is not negligent, but hits him. She must
pull over and help him. Also – hitting a deer.
4) If there is no duty to act, but you choose to act, make sure you act
REASONABLY. You cannot make the injured person’s peril worse. If
you go ahead and make his situation better, you could not return him to
his original position because it would be worse after you already made
him better. Turezyn takes Mr. Tome out of the snow, puts him in a blanket in
the car. She cannot throw him back in the snow where he was before, because
she made his situation better.
Most jurisdictions say that a promise is not an action, so no liability. Two exceptions:
1) third parties promise aid causing others to forgo giving aid.
2) When plaintiff could help himself but didn’t because he was promised aid.
- Marsalis v. LaSalle – owner of rabid cat says he will take care of it and
doesn’t…court imposes a duty on him to act.
- Spivey case – grandparents liable to father because mother shot herself
and their kids because they promised the father they would protect the kids if he
let the mother see them.
Doctors sometimes have a duty to warn a patient’s spouse if they have a
communicable disease. In PA, there is a statute that says that there is no duty for
a doctor to disclose the information of HIV patients to their spouses but if the
doctor chooses to do so, he cannot be held negligent.

- Hood tells Vietro to jump the creek, he does, falls and drowns. Hood could go
home. No duty to act. Some joint enterprise standards have modified this. If you
are on a joint enterprise, there might be a duty. Some good Samaritan statutes
raise the bar but most just codify the common law.

Negligent Infliction of Emotional Distress

Originally, impact was required for recovery in negligent infliction of emotional distress
cases. Often times impact became separate. The courts were even more wary of these
cases than intentional infliction of emotional distress. Now the courts have evolved.

Zone of danger test. EMOTIONAL DISTRESS MUST BE SERIOUS! (majority

rule – derived from Restatement) – two prongs:
1) was the plaintiff within the zone of physical danger?
2) Did the danger manifest itself in physical consequences? In other words,
did the plaintiff have the requisite resulting physical symptoms?
- some jurisdictions very strict with what constitutes physical
consequences, some are much more lenient.
Two exceptions to the zone of danger test:
1) negligent telegram regarding notice of death
2) negligent mishandling of corpses.
- in these scenarios, no physical injury is required for recovery, there is a special
necessity for genuineness.

26
Percipient witnesses’ recovery for emotional distress – most jurisdictions treat these
cases under the zone of danger test.
1) plaintiff must have been in the zone of danger
2) the fright must manifest itself in physical consequences
3) plaintiff must have a direct familial relationship with the victim
California used to focus more on forseeability but now has evolved. The standard was
made in the Dillon Case and Thing v. LaChusa modified it.
1) percipient witness had to be present at the event and had to sensorily perceive
the event (see or hear it)
2) emotional distress must not be distress any regular person would suffer, it
must be directly because of that sensory perception
3) there must be a relationship to the victim (established in Thing v. LaChusa)
4) you must understand that you are witnessing an injury producing event
- Thing v. LaChusa – mother did not witness her child get hit by a car but was
told by her other child and ran around the corner. Sues for negligent infliction of
emotional distress, and is denied recovery because she did not sensorily perceive
the accident. Refines the standards in California after Dillon.

Some jurisdictions require that the victim really be injured in order for a plaintiff to
recover. i.e. man avoids children and hits a bunch of trash cans instead. Parents have a
heart attack thinking their children are going to get hit. In these jurisdictions, the parents
would not be able to recover because the kids really weren’t injured.
- courts make restrictions like these in order to restrict the number of lawsuits in
this area.

Toxic Torts cases- should victims be able to recover for emotional distress that they suffer
after being exposed and being worried they will come down with a disease?
1) some jurisdictions do not allow recovery until you actually get the disease
(PA)
2) other jurisdictions – is the fear reasonable?
3) Other jurisdictions – if 51% or greater chance of getting the disease, you can
recover for the distress
4) Other jurisdictions – no damages for emotional distress but allow recovery for
testing and monitoring for the disease.

Injuries to the Unborn

Preconception torts – can you be liable to someone before they are even conceived?
Originally the courts said no liability. i.e. a car accident messes up a girl’s pelvis, she
gets pregnant and the baby is born a mess. Can the child sue the person who hit her
mom? Originally the answer was no.
- eventually moved to the standard that if there was a special relationship between
the defendant and the preconceived, there might be liability if the defendant is negligent.
i.e. parents consult a geneticist about sickle cell anemia, he negligently says there is no
chance their baby will get it if they get pregnant. Baby is born with sickle cell, geneticist
might be liable to the baby once the baby is born.

27
 - can parents be liable to the baby if they used drugs or alcohol while pregnant?
Maybe.
- is there a lawsuit against one who negligently fails to prevent a pregnancy?
Vasectomy doctor, negligent manufacture of condoms? Earlier cases started allowing
cases like these when children were born with handicaps.
- courts begin to allow recovery for costs of raising handicapped children against
a defendant who negligently fails to prevent pregnancy.
- Massachusetts – allowed recovery to parents of healthy baby to parents who
could not afford to raise another child against the vasectomy doctor who was negligent
in preventing pregnancy. Plaintiffs were not required to mitigate the damages by
abortion or birth control.

Child injuries in utero – usually there can be recovery for harms the child suffered
when born, as well as damages to the parents.
Stillborn babies – most states recognize injury cause of actions. Some jurisdictions say
there can be recovery only if the fetus was viable (wrongful death actions). Some
jurisdictions pick a week of gestation to cut off liability. Some jurisdictions bar recovery
for the reason that you must have life to have death.

What if the doctor fails to take a test to show that the child will be born handicapped,
does not warn of the test, or negligently performs an abortion and the child is born…can
there be liability? What if parents did not have the opportunity to seek an abortion?
- the doctor might end up being liable for birth of this handicapped child. There
is only liability for medical expenses, NOT emotional distress.
1) wrongful birth actions – most jurisdictions accept. You can recover for
pregnancy expenses, extraordinary expenses of handicapped child if you never wanted to
have a baby and had one due to someone’s negligence.
2) wrongful life actions – child seeks damages because he was born. His parents
were denied the right to an abortion because of a negligent diagnosis or procedure.
Courts often find there can be determinable damages in these cases.
- Procranik by Procranik v. Cillo – child was born with birth defects
because his mother’s doctor negligently failed to diagnose her
with measles while she was pregnant. Child is allowed to recover for
medical expenses incurred during pregnancy because his parents
were denied the option of having an abortion to avoid raising a
handicapped child.

Strict Liability

Began in England with animals. English common law had strict liability of trespassing
barnyard animals. Did not apply to dogs and cats. The one exception was that there was
no strict liability of barnyard animals on the way to market.

In the Western U.S., there was tension between ranchers and farmers. Many states
enacted fencing out statutes. If there was a fence, the owner of trespassing animals

28
would be held strictly liable. Then, fencing in statutes were enacted in many
jurisdictions. Owners would be strictly liable if they did not fence in their animals but if
they did it properly and the animals still got out they would not be liable.

What if animals cause others harm? First question to ask is if the animal is domestic or
wild. No liability for domestic animals unless owner becomes aware of the animals
particular vicious propensity. For wild animals there is strict liability if the injury comes
from the animal’s wild nature. Most experts say you cannot breed the wildness out of the
animal. The definition of what is domestic and what is wild will depend on location. i.e.
elephants are domestic in India. Does the animal bring a particular service to mankind?
What about issues that can be raised when animals bring diseases to the country? Is it
enough to know that an animal’s particular BREED has violent tendencies? Some courts
say certain breeds the owner should know of their vicious propensities.

- Defenses – zookeeper statutes – if the keeping of wild animals is for community

purposes, there might not be strict liability. Also – think about whether or not the injury
was the result of the vicious propensity of the animal. If a child steps on a dog’s tail, he
is likely to snap. That does not mean there will be strict liability.
- for strict liability injury must usually result because of the vicious propensity of
the animal.
- if you are on notice of the animal’s vicious propensities, it does not matter if the
animal has not bitten before.
- it doesn’t matter if you own the animal, you can still be held liable if you are
simply caring for it.

Abnormally Dangerous Activities – not many activities are subjected to strict

liability. It is a policy decision of the court. There are many different approaches.
Rylands v. Fletcher – defendant bringing a pool of water into an area with a lot of mines
is an unnatural use of the land. When the plaintiff’s mine flooded, the defendant was
held strictly liable. On appeal, Lord Cairns says that there should be strict liability if
there is a lawful use of the land, but it does not purport with the normal uses in that
particular community. (sticks out like a sore thumb) U.S. courts misread and looked at
first decision.

In the U.S. there are two approaches to strict liability for dangerous activities:
1) Restatement – deals with ultrahazardous activities. Two tests:
a) activity could not be done safely despite use of due care
b) activity not matter of common usage. How many people do it? How
many people use the activity? (two ways to determine common usage)
2) Restatement 2nd – deals with abnormally dangerous activities. Five/Six?
factors:
a) is it a risk that can be reduced with reasonable care to a reasonable
risk?
b) If the risk comes to fruition is it one of grave magnitude?
c) Is it a matter of common usage?
d) Is it compatible with the surrounding community?

29
 e) Does the value of the activity to the community outweigh the potential
harm?
Courts had a lot of room to fudge. Must all factors be present? We don’t know. Which
factors are more significant? We don’t know.
- Organic farmers sue defendants who accidentally spray pesticides on their crops.
The courts held the defendants strictly liable. They said the risk could not be reduced, it
was of severe magnitude, it was not common usage, not compatible with the area, and the
benefit might outweigh the harm.
- Indiana Harbor v. American Cyanamid – defendant manufacturer of toxic
chemicals that get spilled out of train. The railroad had to pay a million dollars to clean
the mess up, and sues the company for strict liability to recover that amount. The judge
does not allow recovery because he said the accident could have been prevented with
greater care by those who handled the tank. Judge suggests that maybe the test of it
being appropriate to the community should be looked at like this: maybe the
homeowners shouldn’t have bought houses so close to the railroad.

Limitations on strict liability – look at 1) did the defendant engage in the activity?
2) did the activity cause the injury – was it a substantial factor (cause in fact)? 3) is
there a reason to cut off liability for lack of legal causation? Also consider time and
distance.
- What if harm that comes about is not a risk that the dangerous activity brings about?
Sometimes courts will limit strict liability to the consequences that lie within the
extraordinary risk. Foster v. Preston – defendant was blasting and frightened the
plaintiff’s mink who ate her kittens. Defendant not strictly liable because liability should
be confined to the consequences that lie within the extraordinary risk. Side note – if
mink farming was the major source of income in that community, an argument could be
made for strict liability.

- What if an act of God brings about the harm? Because it is strict liability, most
jurisdictions cut off liability if the act of God brings about the harm. Golden v. Amory –
defendant owned a hydroelectric plant and constructed a dike, a hurricane caused the
river to overflow and damaged plaintiff’s real estate. Court cuts off strict liability
because the act of God was beyond the capacity to anticipate. In matters of fairness, if
an act of God brings about the same risk that was risked, strict liability will often be cut
off.

- plaintiff’s comparative or contributory negligence is not a defense for strict liability. If

plaintiff knowingly or willingly exposes self to a risk, there will be no liability. If
plaintiff had options and still assumed the risk strict liability will be cut off. Assumption
of the risk is a defense to strict liability. Sandy v. Bushey – plaintiff’s with his horse in
the pasture when defendant’s horse comes and kicks him and injures him. Defendant was
held strictly liable because plaintiff did not wantonly place himself in danger in order to
preclude strict liability.

- sometimes intentional torts will be enough to cut off liability. Bridges v. Kentucky
Stone – plaintiffs blasted with dynamite intentionally by defendant. Plaintiffs sue him for

30
an intentional tort and the dynamite company for negligently storing the dynamite (strict
liability). In this case the intentional tort cut off strict liability because all the steps he
took to steal and set off the dynamite were superseding causes, cutting off strict liability.
The time and distance that occurred between the storage of the dynamite and the
intentional criminal act of setting it off were also a factor in this policy decision.

Damages
Compensatory – to compensate plaintiff for her loss
Punitive – to punish the defendant for her actions
Nominal – not usually present in negligence cases, they recognize that plaintiff’s
interests were invaded.

Compensatory / Actual Damages – two types: special damages and general damages.
Special Damages – must be specially pleaded and specially proven. Can be reduced
to a certain dollar amount. Two major types – medical expenses and special
damages for lost wages.
- Medical Expenses. Past, present, and future medical expenses can be
awarded. Under the collateral source rule, payments made to a plaintiff from an
insurance company are not credited to defendants. Types of medical bills that can
be compensated:
1) damages must be related to the accident
2) fair, reasonable, and necessary charges. Expert testimony for costs can
help. Many times defendant will just agree to costs, but if you demand the
best surgeon on the country you may not be able to get all expenses from
defendant.
Difficult to determine future medical bills. You only get one crack at the number.
There are no do overs because more procedures were necessary than you
anticipated, and no do overs because fewer procedures were necessary and
defendant overpaid. Usually, when plaintiff is awarded future medical damages
they are awarded in a lump sum at the time of the judgment. Also, defendant
cannot force plaintiff to go under the knife for what he thinks would be a cheaper
and more efficient treatment. However, if defendant proposes a reasonable
alternative that will be cheaper or quicker, and plaintiff insists on more expensive
treatment, defendant could be credited for expenses that could have been avoided
with the reasonable alternative.
- Special damages for lost wages. Past wages are easily determined with pay
stubs and tax information. Future wages often require the use of an actuary to
testify how long you would have lived, how much longer you could have worked,
what you would have earned. These figures are difficult to determine. Many factors
come into play.
- Sophomore at Villanova is crossing Rt. 30, gets hit by car. Brain matter oozing,
gives her neurological and physical impairment. She was planning on law school. What
would she have earned? Look at her grades, habits, projected LSAT scores, standardized
test scores, what would a medium sized firm lawyer make? What about time she may
have taken off to have kids?

31
 - what about 12 year old boy that jumps on a trolley, falls and dies. You would
need to look at what high school graduates make, what college graduates make, what
post graduates make. What type of academic course was he on? What do his parents
do? What are his hobbies? How is his school performance?

General Damages – must not be specially pleaded or proven. These types of

damages deal with pain and suffering. How much is it worth? Take into
consideration factors such as the fact that a person’s tolerance for chronic pain
increases over time. Sometimes pain and suffering, even if held to a low standard,
can outweigh the financial gains of special damages. Some judges will tell juries if
you’ve received a tax break and others are more charitable.

Punitive Damages – serve two purposes: to punish the defendant and to deter others
from engaging in that activity. Usually not awarded in negligence actions. Usually
for punitive damages the defendant’s conduct needs to be reckless or intentional.
These damages come from the defendant, not the insurance company. How much is
a company worth? Juries will consider profits.
- problems with punitive damages
1) in criminal actions, defendant pays punitive damages only once. What
if there are multiple plaintiffs? If all are seeking punitive damages,
should the defendant be forced to pay over and over again?
2) multiple plaintiffs – at some point, the well runs dry. This may promote
a race to the courthouse. The first plaintiff to get his suit in court will get
the punitive damages, as the plaintiffs go down the line eventually
there will be no money left to compensate plaintiffs at all.
3) is being forced to pay more than once double jeopardy? Supreme Court
has been keeping a close eye on punitive damages. Some experts suggest
that punitive damages should go into a research and development
fund for companies to make better products.

Wrongful Death
- 2 statutes when personal injury victim dies:
1. survival: governs whether victim’s right to recovery
continues after death
- when a victim dies, his estate can sue for damages he would’ve
gotten had he lived (pain and suffering, loss wages, etc);
some liability cut off if death is instantaneous
2. wrongful death: governs right of victim’s survivors
to recover
- decedent’s spouse and children can recover for their loss in his
absence
A. Elements:
1. in a wrongful death action survivor’s may recover for:
a. economic support they would have received for the death
b. companionship, including sex and moral guidance that you would
have received from decedent

32
 c. if child dies sometimes parents can recover for loss of
companionship
B. Defenses:
1. in a wrongful death action, defendant may assert any defense he would
have been able to use had the person survived: contrib.,
assumption of risk

33