Torts Outline-Fall 2016-Glashausser

1. Intentional Torts
a. Intent
i. Definition
1. Purpose
a. Act was done to cause a specific result
i. X threw rock at Y with purpose of hitting Y
and hits Y
2. Knowledge
a. Actor knew act would cause result
i. Subjective -- Not what everyone
would/should know but specifically what the actor
knew
1. Garratt v. Dailey (Little Boy)
1. Boy pulled chair out from under
woman, causing woman to fall and injure
herself
1. Question is whether or
not the boy knew that his actions would
cause the woman to fall
2. Also establishes that children
are not excluded from the laws of intentional
torts
b. Transferred Intent
i. Person to Person
1. Intent can transfer from person to person
a. X throws rock with purpose of hitting Y but hits Z
standing behind him
i. Intent for Battery transfers from Y to Z
ii. Intentional Torts
1. Intent can transfer from Assault to Battery and vice versa
a. It is difficult to make transferred intent stick
between torts that are not Assault or Battery
i. X throws rock with purpose of hitting Y but
hits a door and Y is locked
2. May be able to transfer to the rest of the trespassory
torts but is not guaranteed
b. Damages
i. Punitive – damages exceeding simple compensation and award
to punish the defendant
ii. Compensatory – to compensate for damages
iii. Nominal – where a wrong occurred but there was no real
damage (TL)
b. Battery
i. Rule
1. Intentionally contacting a person (or something in
intimate association of the person) in a way that is harmful or
offensive.
a. Causation is an implied element under intent
ii. Elements
 1. Intent
a. Purpose
b. Knowledge
c. Dual Intent
i. Must have intended to make harmful contact
1. White v. Muniz
2. Waters v. Blackshear
1. Child put firework in other
child's shoe, causing harm to the other
child. Child was found to be negligent by
putting the firework in the shoe because he
did not intend the harm, just the contact.
b. Single Intent
i. Must have intended to make contact
1. White v. Univ. of Idaho
1. Professor touched woman on
the back in a motion of "playing a piano."
The woman sued for battery saying the
professor intended the contact and therefore
his intention of harm is of no matter.
2. Contact
a. With the individual
i. Shaw v. Brown & Williamson Tobacco Co.
1. Did not establish what type of contact
must be made in order to have a battery claim
1. Look to trespass to land to
attempt establish that particles can contact
a person as long as we have proved
harm/offense
b. With something in intimate contact with the
individual
i. Fisher v. Carrousel (The Plate Case)
2. Harm or Offense
a. Offense – go by the reasonable person standard.
Would a reasonable person find the contact
offensive?
b. Harm has less of a proof problem but offensive and
less of a risk of fraud on the court.
b. Assault
i. Rule
1. Intent
2. Reasonable apprehension of imminent contact
a. D must have the ability
b. P must be aware in order for their to be a
reasonable apprehension of harm
c. In the Halloway case, the baby’s assault charge did
not stand because the baby was asleep and the
baby did not have the cogitative abilities to be
aware.
3. Imminent contact would be harmful or offensive
 o Intent
o Reasonable apprehension of imminent contact
 This includes the "apparent ability" element
o Imminent contact would be harmful or offensive
 
ii. Case Summaries
f. False Imprisonment
i. Rule
1. Intent
2. Confinement
a. Confinement can be by actual barriers
b. Confinement can be by threat of force to oneself or
others
3. Awareness of Confinement or Harm
b. Trespass to Land
i. Rule
1. Intent
2. Contact to land of another
a. Mistaken belief does not negate the intent to be there
b. However an accidental entry can negate the intent to
contact the land of another – football example.
3. Harm is not needed
a. Unless the "thing" is not tangible
b. Trespass to Chattels
i. Rule
1. Intent
2. Contact/Confinement/Intermeddling
a. By a person
b. By a thing
2. Injury to personal property
a. Injury can be an dispossessing the owner of the chattel
b. Remedy is the change in value of the property
b. Conversion
i. Rule
1. Intent
2. Dominion or control (over a thing)
3. Injury
a. Forced Sale Concept—more serious than trespass to
chattels
i. Remedy is the entire value
b. Restatement 222A
b. Intentional Infliction of Emotional Distress
i. Rule
1. Intent/ recklessly
a. The intent for conduct to cause distress
b. Intent needs to not just be for the conduct, but there also
needs to be some intent to cause distress, question not
resolved yet of it intentional must be to cause severe
distress
 c. P witnesses torture. Transferred intent will not work
from battery to IIED but there is a decent argument that
doesn’t rely on transferred intent: in this situation, the D
seems to intend to cause distress by witness, in that the
D arguably knows with SC that the witness will suffer
emotional duress.
d. The restatement says that only bystanders who can
recover are “close family members” who
contemporaneously perceive the event.
2. Extreme or Outrageous Conduct
a. Can judge conduct based on positions of power or
relationships between people
b. Figeierdo Torres v. Nickels – marriage counselor slept
with clients wife and man stated that this caused him
IIED, the court looked at the relationship between the
counselor and the client and said that was an abuse of
power which was sufficient to be outrageous or extreme.
c. Repeated conduct – Figuierdo Torres v. Nickels – was
repreated conduct and the courts include that as a factor
in their decision.
3. Severe Emotional Distress
a. Distress must be so severe so that no reasonable man
should have to endure it.
b. Caldor v. Bowden: the kid only went to counseling once
and the court believed that if severe emotional distress
he would have gone more, also the kid resumed all of his
regular tasks. The court said that this is not enough.
c. The distress must come after the event, if you were
depressed before then that will probably not work.
b. Privileges
i. D have the burden of proof. Ps have the burden of proof for the prima
facie case.
ii. Affirmative defenses are complete defenses.
1. Affirmative defenses work even against transferred intent – the
P you are suing has to step into the shoes of the person that
was the attended person of contact.
2. A is attacking B, B uses his baseball bat in self defense, A duct
and B end up hitting C. Bs conduct was privileged .
i. Consent
1. P wants or desires the conduct; or (subjective test)
2. Reasonably manifests willingness (objective)
a. Actions
i. Smith v Calvary Christian Church – the court ruled
that D had implied consent by continuing to attend
church. Church said he had expressly consented by
signing the formal membership documents.
b. Inaction
c. Rules/Customs of the game for sports
 i. In sports it the rules prohibit the conduct, look at
the customs (like in basketball you not to foul but
it happens all the time).
ii. If it allows certain conduct then that is allowed
iii. If the rules are quiet on some conduct look to the
customs
iv. Hackbart v. Bengals – Hackbart did not reasonably
manifest a willingness to be punched by stepping
on the field. Court said you have to look to the
rules of the game. In football, you expect to be
tackled. But not punched.
2. Can be revoked
3. Some plaintiffs can lack the capacity to consent/revoke consent
ii. Self-Defense
1. Reasonable belief of imminent threat of harmful contact or
confinement
2. Reasonable, proportional force
3. Duty to retreat if you can do so safely
a. Does not apply within the home, "Castle Doctrine"
b. "Stand your Ground"
i. Can use deadly force in response to deadly force
even if there is a retreat
ii. Defense of Others
1. Reasonable belief that person needed help
2. Reasonable belief that other would be entitled to self defense
ii. Defense of Property
1. Reasonable belief in need of force
2. Reasonable force
a. Never reasonable to use deadly or serious force to
protect only property
b. Cannot use force unless you warn first
i. Custom can qualify as warning
ii. Warning can be implicit if in fresh pursuit
1. Can be reasonable to use force when in
fresh pursuit
2. No longer reasonable once property is gone
3. Can peaceably trespass to retrieve property
ii. Necessity
1. Applies in trespass to land
2. Reasonable belief in necessity of trespass
a. To prevent injury
2. Public
a. Absolute Privilege
i. Do not have to pay for harm done
ii. Property owner may ask government for
compensation
1. No suit unless government was the
trespasser
b. Purpose is to avoid an imminent public disaster
2. Private
 a. Qualified Privilege
i. Will have to pay for any damage you do.
b. Purpose to avoid harm to the individual or a third person
i. Unless the third person doesn't want the help
b. If owner unreasonable resists, okay to use force to
overcome resistance
i. No liability to use force against the owner
ii. Owner may be liable
1. Unless owner reasonably does not recognize
the necessity

Intentional Torts -- Remedy: compensatory damages, you might be able to get

punitive damages - you want to deter the Ds behavior. And there is nominal
damages, a P may win a case but not really get anything because the P did not
suffer any harm. The point of nominal damage is that it does not amount to
anything.
 Trespass to land - no harm happened, might be nominal damages but not
compensatory or punitive and the satisfaction of winning.

Negligence: Remedy: compensatory. You have to show the injury for negligence
and it is not as bad as an intentional tort so there is no punitive damages as a
possibility.

2. Negligence
i. Definition
1. Failure to use reasonable care that results in damage or injury
to another
ii. Elements
1. A Duty
2. Breach
3. Causation
4. Damages
ii. Cases
1. Brown v. Kendall
a. Credited as first case to call for the "reasonable person
standard"
b. Trying to break up a dog fight, someone gets hit in the
eye with a stick
c. P must show that the D acted with a lack of
ordinary care.
d. D does not need to act with extraordinary care, only
ordinary care
ii. Damages
1. Only compensatory
2. No punitive or nominal
i. Elements

A DUTY
a. Reasonable care under the circumstances
 b. D did not have to use extraordinary care, ordinary care is
all that is required. OBJECTIVE STANDARD.
a. Ordinary care is an objective standard,
Menlove claim that he “did his best” is not
sufficient. Everyone is required to proceed with
such reasonable caution as a prudent man would
have exercised under such circumstances.
b. Cannot have a subjective standard because there
are proof issues, no way to prove someone’s
subject standard. That would also require everyone
else in the world to operate their lives in sensitive
to everyone else’s subjective standard.
c. HYPO: D only scraps the snow off the windshield and no
the sides of the care, drives very carefully, and then she
hits the P. in that split second that the cars hits, D was
acting reasonably. But did was negligent at the time
where the D did not scrape all of her windows. So when P
sues for negligence, the D is going to say that when I hit
you I was not being negligent, but P will say that you are
negligent when you did not scrape. As long as P can show
there was negligence that caused that injury, it will be
enough.
a. The farther back it gets, the harder it might be to
prove causation.
b. But as long as P can prove that D caused her
injury, that is going to be enough. D was negligent
in not scrapping her windows.
c. You have to prove the D's negligence caused your
injury. The breach of duty caused the P's injury.
a.
Premises Liability: liability of possessors of land to persons on
the land.
a. Trespasser: a trespasser is a person who enters or remains
upon land in the possession of another without a privilege to do
so created by the possessor’s consent or otherwise.
i. Unknown
1. Duty not to intentionally or recklessly injure
ii. Known
1. Same as trespasser plus
2. Duty to use reasonable care in conducting
activities (if risk of serious harm)
3. Duty to warn about "known," hidden, artificial
conditions (if risk is of serious bodily harm)
iii. Known Child
1. Same as Known Trespasser plus
1. Duty to use reasonable care in conducting
activities
2. Attractive Nuisance
1. Duty to warn about "known," hidden,
artificial conditions
 2. Duty to repair artificial conditions
3. The idea because the attractive
nuisance doctrine is that a child
because of their youth does not
realize the risk, that an adult would.
Here, the possessor might do a cost
benefit analysis: how burdensome it
would be to get rid of it v. a risk to a
child.
4. You have to use reasonable care to
eliminate the conditions if it is
reasonable to do so. If the risk of
doing so is less harm than B<PL.
b. Licensee: a licensee is a person who is privileged to enter or
remain on land only by virtue of the possessor’s consent. The
idea is that if you and your family can accept whatever situation
is in your abode, why should you have to treat anyone else
differently?
i. Same as Known Trespasser plus
ii. Duty to use reasonable care in activities
iii. Duty to warn about "known," hidden, artificial conditions
iv. Duty to warn about "known" hidden, natural conditions
b. Invitee: there for an economic benefit
i. Same as Licensee plus
1. Duty to use reasonable care (can include inspect
and repair) artificial conditions (also for licensee in
KS)
1. Just because you have a duty of
reasonable care does not mean
that you have to do everything
to fix it.
2. Still do a cost-benefit analysis
3. If it would have been
burdensome to fix it, the
injuries are minor there is no
duty to do it.
2. No definitive decision regarding duty to inspect
and repair natural conditions
ii. Economic benefit to land owner/possessor
iii. Public Invitee
1. Member of the public is on the land for the
purpose it is open for
2. Public invitee: when the owner invites the public
on there land, even if there is no economic
benefit then they can be an invitee.
3. RULE: if you invite the pubic at large, you are
considered an invitee.
b. Firefighter's Rule
ii. Traditional public servant is an invitee
 iii. Firefighters and police officers seen as licensee with
respect to dangerous condition protecting against
1. Other conditions consider them invitees
Premises Liability Case Law
 Mozier v. Parsons: Ps came over to the Ds house to hang out, Ps 3 year old
drowned in the pool because no one was paying attention to her.
o How were the D’s negligent?
o Had a barrier up, locked the latch door so that the kid could not reach
it, or supervised the kid
o The Ps are licensee
o Landowners do not have a duty to repair or inspect for licensee.

 But in KS the possessor of land have a reasonable care for

artificially conditions of licensees.
o When it is a residential swimming pool, does the attractive nuisance
doctrine apply?
 KS says that as a general matter, residential pools do not incur
liability under the attractive nuisance doctrine.
o In Kansas – in order to have reasonable care to a trespass child, the
attractive nuisance has to be the thing that got them on the land.
 Majority view: most courts now do not care about what brings
the kids to the land or not.
 Holtzheimer v. Johannesen: P came to the church to sing at a function,
slipped and fell, sued the church
o It all came down to if there was an economic benefit to the P.
o Jury found for the D
o There was no economic benefit for the D
o Said this was not a good enough economic benefit
 Palmtag v. Gartner
o P visits her own home that she is the owner of, sues the contractor
when she falls though the floor
o D, the contractor, was in possession of the land even though P was the
owner, D was controlling the environment at the time
o The question is what is the status of the P?
 She was a customer, there was an economic benefit to the D so
the P was an invitee
 Chapman v. Craig
o Fireman’s rule: (actually hurts firefighters) usually government
officials are considered invitees, they get the benefit of reasonable
care, but for firefighters and police we treat them as licensees.
 FF would argue to not invite people over when there is an
unsafe condition
 However that deprives the whole point of a FF
 The concern is that people will not call FFs when there are
emergency situations. The idea is that when the landowner is
going the right thing we down grade the FFs.
 FFs will be license with respect to the condition they were
invited to your land. But if they end up getting harmed by
 something that is not what you called them there for,
they will be invitees.
 Tripping over books – invitees, fire – licensee
o The public bares the loss of the things that FFs do. We need these
people to respond to these risk, the loss should be passed to the
public.
o Kansas has extended FF doctrine beyond premises where an official
person is doing the rescue.

The court will look to the circumstances around an ordinary care standard.
Minors, physical disabilities, special skills, etc.
a. Minors
i. Rule: reasonable person standard is
tailored to kids of like age, intelligence and
experience.
1. Charbonneau V. MacRury: driving
case, 17 year old hits baby
2. This is different from someone like
Menlove who will argue that we
should take into consideration him
“doing his best” because we have
prove someone’s age, we can’t prove
if someone is doing their best. Less
proof issues. Potential Ps and courts
can look at someone and determine
how old they are.
ii. May not recognize their inabilities.
2. Should be considered against others
of similar age, intelligence, and experience
iv. Exception: Will not be considered if engaged
in adult activities
1. Daniels v. Evans: kids do not get a
relaxed standard for driving
2. The idea here is that potential Ps do
not have the ability to ascertain the
age of other drivers on the road.
3. Generally speaking, kids are
judged on the standard of their
age, intelligence, experience
EXCEPT for when partaking in
adult activities such as driving.
b. Physical Disabilities
ii. Rule: Must act reasonably as someone
with the same disability
iii. Includes physical disabilities associated with
old age
iv. Elderly alone is not a category of an
exception. It depends on their physical state. The old
age alone is not taken into account.
 v. Menlove points out that there should only be
an objective standard, courts will acknowledge that
there is not a fixed standard, but it still more objective
than subjective. It is not tailored to a persons mind,
but we will adjust for certain characteristics.
vi. Courts are willing to treat a mental
disability, if it is sudden and is an equivalent to a
heart attack or seizure, as a circumstance
1. Bruenig v. American Family
Insurance Co. the lady have a
delusion about being batman while
driving and reended P.
Sudden physical incapacitation is negligent
only it was reasonably foreseeable to the
actor. Sudden physical incapacitation is a
circumstance unless it was reasonably
foreseeable.
b. Special Skills
i. Must use your special skills (Racecar driver
must use special skills to prevent accident if it is
within his power)
ii. You will be judged in light of the special
skills.
iii. D is expected to use their special skills in
the benefit of someone who is harmed.
iv. If you have a below average in skill that
is too bad for you – you still reach the objective
standard
b. Gender is not a circumstance
c. Mental disability is not a circumstance
i. Hypo: driving down the street, D stressed
out about the exam, has a panic attack, for
the first time in her life. She swerves and
runs into Ps car.
1. Courts traditional view: if it is a
mental disability then we do not
take it into account. If it was a
physical disability that would be one
thing, that would be a circumstance.
But a mental issue is not a
circumstance.
ii. Hypo: D, a perfectly healthy person, has a
heart attack, swerve, and runs into Ps car.
1. No fault, no breach of duty here. D
did not act unreasonably. Because
this is PHYSICAL disability
iii. The courts are very worried about fraud on
the court and people faking a mental
problem. Court is moving much more slowly
than society is.
 iv. An actors mental or emotional disability
is not considered.
v. The court will acknowledge a mental
disability as a circumstance if it is
sudden and equivalent in effect to a
heart attack or seizure. Bruening.
vi. Gould: used Alzehemizers as a
circumstance.
1. Gould was not an innocent person --
she worked there and could verify
that he has a disability
2. Said there was no fraud here, there
was no risk here, he is in the facility
because he has Alzeheimers. There is
no concern here that he is making it
all up
3. His guys relative was doing
everything they could to help and not
injures other in society. It is not like
by opposing tort liability on him will
have people take greater care. They
already took great care by putting
him in the hospital.
4. Yes you have the traditional rule,
but the perfect case came and
they said it does not make sense
to apply the traditional rule.
d. Emergency Situations
i. Swerving when someone is driving at you
head on
1. Storms and sun glare are not
"emergencies"
Pelletier v. Lahm: boy pulled the string off her
bikini top.
The majority opinion is saying that there was an
emergency.
RULE: Emergency doctrine -- actor not
negligent if the actions taken are reasonable
and prudent in the emergency context.
b. Involuntary Intoxication
i. Not guaranteed but may be use to reject the
duty
b. Circumstances not considered
i. Temperament, Intellect, or Education
1. Innate clumsiness will not be
considered
ii. Mental disabilities
1. Trend towards allowing this to be
considered
ii. Old age
 iii. Gender

A BREACH OF THE DUTY

a. Calculus of Risk
a. Magnitude of the risk outweighs the utility of the
act or the manner it is done
b. Learned Hand test (Cost-Benefit Analysis)
a. B < PL
i. B: the burden of a precautionary measure
(in cost and/or effort), P: the probability of an
accident, L: the loss.
ii. Burden of adequate precautions <
probability of injury X gravity of injury
b. Only Negligent if B is less that PL
i. If the cost of preventing accidents is greater
than the cost of the accident, don’t do
anything.
c. US v. Carroll Towing: was the barrage company
negligent for not having a bargee aboard at all times. Only
be negligent if B<PL.The bargee was only negligent if the
cost of the prevent is less than the costs of the accidents.
The idea is that is B is less than PL then you should have
taken precautionary measures. The whole point of the
formula is that you have look at the surrounding
circumstances. D will want the B to be very high and the
PL low, P will want the B to be very low and the PL high.
d. Courts also look
i. Burden of preventing accidents vs cost of
probable accidents
ii. The restatement has the same idea as
the Learned Hand formula: what is reasonable in
the cost of prevention v. what we are trying to
prevent and it’s likelihood.
1. Courts will not explicitly apply the
B<PL
b. The Role of Custom
a. Usually, Custom is relevant but not dispositive
b. The professional custom of a doctor is no
dispositive
i. The custom of the doctor will be taken at the
national level.
i. Only dispositive when the risk is not easily
understood by the average person
1. Professional Custom - Doctors and
Lawyers
 2. Exception is found in informed
consent
3. The doctrine is that professional
standards are normally taken to be
dispositive. Does not always stay this way
1. Brune v. Belinkoff: dr. gave
woman too much meds. The
trial court said that the jury
should look at the local customs
of the doctors around the town.
Look to the local rule of how
doctors in the community do it.
Over turns the locality rule. The
national custom standard is
dispositive.
2. Helling v. Cary: doctor did not
order the glaucoma test.
Helling is still in the minority
where courts are willing to say
that this is something that we
do not need to differ to doctors
about. The test was cheap and
a juror can tell qualified to
weigh in on this.
ii. Relevant means it will be taken into account
but there is no guarantee that the custom will equal
non-negligence. Relevant means you will hear
evidence on it in court, but it is not the end of the
story.
1. Used for Non-Professional Custom
2. T.J. Hooper case: Because it could be
that an entire industry is behind on customs. He
stresses that in the end courts must say what is
required. (keeps the authority to courts, not
going to refer to what a custom does).
Irrelevant – don’t care what other people in this situation
do
 Mayhew case: D did not put up a barrier around a
hole and the P fell in. D tried to argue that other
mining companies did not have it and that the D was
reasonable for not having it and wanted to have a
witness testify about the custom of mining companies.
The court held that jurors are qualified to make
decisions on this.
 In certain situations we need to defer to what the
industry is doing because we as lay people do not
have the knowledge to access the situation. But if it is
something such as guarding a hole in the dark.

Impact of custom
 1. Dispositive : titus/ professional standards/ Brune
a. Differ to the professionals, lay people cannot decide these things -
need more expertise
2. Relveant but not dispositive: TJ Hooper / Helling
3. Irrelevant : mayhew (also maybe Helling), Canterbury
a. Where we as lay people can decide for ourselves
What do you need to prove for negligence in a way that will make you
remember it --
 A duty -- (the D has a duty to you)
o There always is a duty and you owe to everyone in the world.
Everyone takes it upon themselves. (Menlove v. Vaughan) we all have a
duty to walk around reasonably.
 Look at custom to establish reasonableness
 The impact of statutes - look at the persons behavior and the
behavior governed by statutes
 Breach of duty
 Causation
 Damage/ injury

2. Negligence Per Se (Negligence based on violation of Statute)

a. Statute is dispositive when:
i. Designed to protect a person similar to
plaintiff;
ii. Risk of injury is similar to plaintiff injury
 Regulations and ordinances are usually
relevant but not dispositive
 Split of authority, could go either way
 RULE FOR NEGLIGENCE PER SE:
if you negligent this statutory duty, he is
liable for any injuries of the character/ type
that statute was designed to prevent and the
injury has to be one of the class of people
that was being protected by the statute.
. Statute is not dispositive when:
. Violation is reasonable
1. Age, disability, physical occupation
ii. Actor attempts to comply with statute or is
unaware
iii. Statute is confusing
iv. Compliance with statute creates more
risk
v. Purpose of the statute is to protect against
something other than the negligence
b. Compliance with a statute does not negate
negligence
c. RULE: is there is a good reason to avoid harm
but violating the statute then violate the statute. This
is excused and will not be negligence per se. (Tedla)
 d. Tedla: P is walking along the road, walking the say
way as traffic. Is hit by a car. Statute says to walk
opposite the traffic. P walked with the traffic.
e. The court said that she had a good reason for
violating the statute. She had an excuse and we
are going to read that into the statue, if the
circumstances make that seem safer.
f. There may be a statute to protect people and just
because to violated it and had an excuse does not
mean it is negligence per se.
g. Read an excuse into the statute
h. Prosecutors have discretion to decide when they
will prosecute.
i. D does not have the public trust to say when we
will prosecute the public. He is going to mention
her negligence because he is suing her. Courts are
more willing to read into an excuse because the
dianatic between the D and P. once we have the
legislature has an enactment we can see the court
making marginal excuses.
j.
k. RULE: is there is a good reason to avoid harm but
violating the statute then violate the statute. This
is excused and will not be negligence per se.
b. Res Ipsa Loquitur (The thing speaks for itself)
a. Event does not normally occur without negligence
of a "class of actors";
b. Must have been caused by an agent or
instrument within exclusive control of defendant;
c. Plaintiff must not have contributed or taken a
voluntary action
d. Court may also look to if the accident occurred on
Defendant's property
i. Negligence per se/ custom/ res ipsa
loquitor are all ways to look at the
reasonable person standard.
ii. Res Ipsa Loquitur the P does not have
the information to specify precisely
what the D did, because the P is in the
dark.
iii. "the thing speaks for itself", P cannot fill in
all the particulars but what happens speaks
for itself.
iv. Verse negligence per se -- it is usually
dispositive. That means you where not
reasonable.
v. But res ipse loquitur that says we will let the
case go to a jury. Res ipsa is allow the P to
clear the line from JML to a jury. Lets the
jury make an inference. Even if we can't
 pinpoint what the D did. Res ipsa get the P
to the jury.
vi. The test for Res Ipsa loquitur
1. The event must be of a kind that does
not ordinarily occurs in the absents of
someone's negligence
2. Must be caused by agency for
instrumentality that was within the
D's exclusive control.
3. It must not have been due to any
voluntary action or contribution of the
part of the plaintiff

MISFEASANCE V. NONFEASANCE
 There can be no negligence unless the P establishes that the D has breached
some legally recognized duty of care
 Misfeasance – when the alleged negligence has been based upon some type
of affirmative misconduct
 Nonfeasance – situations where the D has done nothing at all under the
circumstances where the law imposes an affirmative duty to act in a certain
manner, as well as in situations when the law simply does not recognize that
any legal duty has occurred.
 RULE: Restatement 37: no duty of care with respect to risk not
created by the actor.
o An actors whose conduct has not created a risk of physical or
emotional harm to another has no duty to care to the other
 RULE: when the actor’s prior conduct, even though not tortious,
creates a continuing risk of physical harm of a type characteristic of
the conduct, the actor has a duty to exercise reasonable care to
prevent or minimize the harm.
 Yania v. Bigan
o Bigan has Yania over. Bigan asks Yania to help pump water. Yania
jumps into the water, and drowns.
o P will argue that D was enticing P to jump, the fact that this happened
on D’s land, and that D has a duty to reasonable care to rescue P.
o D will argue that maybe he had a moral obligation, but you cannot
bring the moral into the legal.
o The court held that D did not have a duty. The mere fact that
the D saw P in peril, did not impose a legal duty on the D.
 Ex: you are driving around and there is a toddler in the road.
o In this case, it is different from Yania, because in this case you are
doing something here and that could create a risk.
o There is a difference from the Yania case
 RULE: no duty of care with respect to risk not created by the actor.
o Only a duty of care when the actor created the risk.
 Weirum v. RKO General, Inc.
o Radio has a contest, kids drive recklessly to get to the money
 o The kids in this case are a foreseeable third party, it was foreseeable
from the radio’s prospective and therefore should not cut off the radio
station’s liability.
o The primary question is where the radio owed the decedent a duty of
care?
 Based on Yania, the D will say that he had no duty to protect
other people. He does not have a duty to control the way people
are driving.
 P will argue that Yania was different and say that the radio
station created a risk that caused the kids to drive recklessly.
The D was not doing nothing, rather they created the risk.
o Court found for P, D has a duty to act because D created the risk.
 Shafer v. Keeley: P, an old lady, sued the D who had a float in a parade and
was throwing out candy, because the kids running to the candy lead her to
getting pushed over.
o The court ruled for the P, D made an affirmative act which
created an undue risk of harm.
o The court sees this not as a do nothing case but rather as a
case of misfeasance.
o If you created the risk you can’t just stop. If you are doing
something you have to keep doing it reasonably.
 RULE: If your prior conduct, even if it wasn’t tortious, and it creates
a risk, you cannot just walk away you have a duty of reasonable care
to prevent or minimize the harm.
 Day v. Waffle House: there was glass in the friend’s food, P drives the friend
to the hospital, on the way the P and the friend get into a wreck. P sues WH.
o D will acknowledge that there is a duty with regard to not putting
glass in people’s food.
o D will say that he has no duty with regard to people out there on the
road.
o D will try and argue that the 3rd party intervention is a superseding
cause.
o P will argue that it was not a supercedeing cause because danger
invites rescue. The P will say that this was foreseeable because they
were leaving waffle house in peril which makes it more likely that
there will be an accident on the road.
o P will argue that at the very least, when you are rushing to the
hospital it is very foreseeable that the glass in the food would invite
rescue.
 Under the rescue doctrine, danger invites rescue and they
ought to realize that people are going to help.
o The point is that everything was foreseeable from allowing the glass
in the food. They did have a duty to affirmatively act.

Just because there is a right thing to do, that does not mean there is
something to do
 
When do you have a duty to act?
 If you created a risk (tortious or not tortious)
  If you volunteer and the P reasonably relies on your duty. (florence v.
Goldberg)
 The D has a special relationship with the P and therefore there is a
duty to act to protect the P. (if you were a random person walking by
then you do not have a duty to act)
o The relationship could be friends, do not have to have a blood
relationship. There is an implied contract that you are friends with
someone and they are not going to leave you unconscious and dying.
 Sometimes courts will not go here because who is to say what a
friend is?
o A teacher and a student, an employer and an employee, a parent and
a child all have duties to act.
o Other relationships that count as special: common carrier with its
passengers, innkeeper with its guest, and school with its student
o Farwell v. Keaton case: friend left his beat up friend in the car, the
beat up friend died days later.
 Court created special relationship between friends.
 Duty because their was a special relationship between the D and it's
patient and that lead to a duty to protect others. (Tarasoff v. Regents
of the University of California)
o There was only a special relationship with their patient
 When the D has a special relationship with the tortfeasor, the D has a
duty to protect OTHERS.
o D+ patient with a duty to protect others.
o Incentive the revealing of this information. Because in these
scenarios, the D is the only one with the relationship. If you have
control over someone, surely you have a duty to use your control over
that person to stop being from doing bad things to others. The
phycologist had some level of control. Kind of like a volunteer
situation because we rely on phycologist then maybe we are
reasonably relying on them to help the public on some level.
o The duty is to protect the tortfeasor. Protect them from going to jail
forever.
o In practice this has been seen as a very good thing.
o Particular victim: There has to be a particular victim in mind, it
is not enough to say "they feel like killing someone today", not
a legal duty. Not protecting society at large. Needs to be more
specific.

CAUSATION
a. Cause-in-fact
a. "But-For" Test
i. But for the act of the defendant, the plaintiff
injury would not have occurred
 ii. Must be the factual cause of the harm in
order to be liable
iii. But for test is the default test to show cause
in fact
1. Ex. Back to the future example in
class. The court would then case
through the substantial factor test
and the judge would say that the GF’s
negligence was not a substantial
factor to the P’s injury.
2. Ex. Dapp v. Larson, P falls down the
steps when is leaving the house. After
she falls she sees the plastic mat at
the end of the stairs and sues the D.
1. D will argue that “even absent
the alleged negligent act of
having the slippery mat, the P
would still have suffered the
injury”
iv. Ex. Williams v. EMRO Marketing company:
P said the breach of the duty is that the gas
station did not take care of the ice. D will
argue that he is not a fault, he cannot
control the weather nor can he get to all the
ice all of the time. The court let this go to a
jury to see if there was enough causation.
b. Substantial Factor
i. The defendant's act cannot be found the sole
cause of the harm but contributed to it substantially
ii. 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,
that harm is a cause in fact.
1. Spoke situation - two fires lead to
plaintiffs injury
2. Anderson v. Minneapolis: D
negligently causes a forest fire. The fire merges
with another of unknown origin, the combined
fires burn P’s property. Held – even though P’s
property would have been burned had D never
caused the first fire, that fire must still be
regarded as a “material and substantial
elements” in P’s damages.
ii. Lost Opportunity Doctrine (Most states
recognize for medical malpractice but the extent is
different) when you can’t win on traditionally cause in
fact. THIS IS NOT A SUBSTANTIAL FACTOR THIS IS
IT’S OWN THING. The P is reframing their damages
 so that they can recover because on first blush they
will not be able to recover.
1. Plaintiff already has less than 50 %
chance of saving something so cause-in-fact will
not be able to be proved
2. The lost opportunity doctrine allows a
P to recover when the D’s negligence possibly
(possibility of 50% or less) caused the P’s injury.
3. If the P can reach the 50% standard
to reach the preponderance of evidence that the
harm will happen then they can recover for a
percentage
4. Remedy is for the lost opportunity not
the harm itself (framing the damages differently)
5. There are three approaches to the lost
opportunity doctrine
1. Pure Lost Chance
1. Plaintiff only have to show
defendant decreased Plaintiff's chance,
no matter how slight of avoiding injury.
allows a P to recover for his injury even
though it was more likely than not that he
would have suffered the injury if the D has
been not been negligent.
2. Proportional
1. Recovery is limited to percent
of chance lost multiplied by the total
damages that would be ordinarily be
recovered in that action
2. Identical to the proportional
approach otherwise
2. Substantial Possibility
1. Must prove defendant's
negligence was the probable cause of the
injury. Send it to the jury and see if they
think it is substantial
ii. Statistical Evidence (Increased Risk
Theory)
1. P must show that there is a
substantial possibility that the D’s negligence
caused his injury. The % has to be some
substantial, it can’t be 1% chance of hanging on
to it.
1. It is unclear what constitutes a
“substantial possibility”
2. It does not have to more than
50%
3. It is identical to the other
approaches, the P can recover
even though it is more likely
 than not that the P would have
still suffered the same injury if
the D has not been negligent.
2. Evidence must show greater than
50% chance that negligence was cause in fact
1. Common in drug cases
2. Risk of the injury must be doubled:
from 10% chance to 20% chance
3. The lost opportunity doctrine – the
court is not discarding causation, but they
are recognizing a loss of opportunity to
avoid physical harm less than death.
1. Kansas fully accepts the loss
opportunity doctrine.
2. The damage is not loosing the
function of the organ, but
losing the chance to keep what
was lost/ saving the opportunity
ii. The policy behind the loss opportunity
doctrine is to not let doctors have a pass
when dealing with people who are
already in bad shape when they come to
doctors.
iii. Daubert v. Merrell Dow
Pharmaceuticals: P brought a suit arguing
that their mothers took this drug when they
were pregnant and it caused them to have
limb defects. P brought in statistical
evidence, D tried to argue that the P had to
prove individually that what the D did
caused the defects. The court agreed with
the P and said that they do not have to
use individual proof in this case. They P
may use statistical evidence to
demonstrate their point.
1. Statistical evidence can be enough
to show your harm. Does not have
to be personal to you
2. But the only way of meeting the ponderance of the evidence standard is to show that
the baseline harm was more than doubled.
1.
2. We all walk around with a baseline
chance of being born with birth
defects so that court says that the P
has to prove that the odds doubled.
3. For P in general to use statistical
evidence, P has to show that there is a
greater than 50% chance that this
caused the harm.
Baseline: 1/1000 chance of getting something that it might be
 Out of 2,000 random people in the population we would expect 2 people to have the problem
 Lets say with a certain drug, there is a 1.5/1000 chance of having the defeat
 Out of 2,000 people who took the drug: 3 had the problem
 Of those 3: 1, 2, 3 -- any one of those 3 Ps sue the D and the P will have to show cause in fact,
that it caused them to have the problem.
 What are the odds that the drug caused the problem? Two people would already have it. What
are the odds that the drug caused the problem? Only 1/3 because it did not more than double the
odds.
 
Versus having a more dangerous drug
 With the drug you have a 3/1000 chance to get the problem
 Now out of 2,000 people who took the drug there are 6 you would expect to have the problem
o Two would have been naturally occurring and there are that has it without the drug.
o If these Ps sue have a better chance to win because it is a 2/3 chance which is more
likely than not that the drug caused the Ps harm.
 PROBLEM: there is an all of nothing catch. When the drug is really bad, all the Ps will win because they
can show the odds are greater. And if it is just bad then P cannot show causation

Daubert: If you can show that it raised the odds and caused these issue, then you go for some other
situation.
But maybe tort liability is not the appropriate way to do it if you can't meet the preponderance standard

b. Proximate Cause: after establishing that the D’s

negligent conduct was the cause in fact of the P’s injury, the
next step in negligence analysis is to determine whether the
negligence was the “proximate cause”.
a. Usually obvious – most cases will not have a huge
analysis on PC
b. Policy: if people are opened up to an unfettered
chain of liability people would be over deterred and would
live in a bubble.
c. Essentially PC is a judgment call.
i. "Harm was with the scope of the risk"
1. PC limits the D’s liability to those
results that are of the same general
sort that made the D’s conduct
negligent in the first place.
ii. In "freaky" cases (cases where something is
arguably unforeseeable) proximate cause is more
difficult
iii. Cause in fact is met in the Back to the
Future cases but PC is not met, too far removed, too
remote.
iv. Allen v. Shiroma: P gets out of his car to
direct traffic after an accident happened. P has a kid
move this car to get it out of the way. Kid hits the P. P
 sues the people in the original accident which is why
he got out of his car in the first place.
1. Court said that cause in fact is met
but they said it is not PC. Too much as
happened in the interim.
v. Ryan v. NY Central RR: D let a fire start and
it spread to other homes, and it got progressively less
foreseeable.
1. FIRE RULE: make the D liable for
one neighbor’s harm, but beyond that
they are not liable. It is not proximate
cause anymore, it is too remote. Here
the court just drew the line
somewhere because they do not want
it to go one forever.
Proximate cause case law
 DIRECT CAUSE: Polemis: D’s employee was unloading cases with slings and
rope, knock a plank into the ship’s hold, contact vapor in hold, spark, fire,
ship is destroyed.
o P will make this chain of events sound very short. AB: the negligent
act was the employees not being careful in moving the cargo and
heaving the cases. D: ship destroyed, C: cause in fact – but for D’s
negligence the boat would not have been burned
o D will try and argue that this was very long, strung out chain of
events. C: even if they were negligent, the risk was not that the ship
was going to blow up because that was not foreseeable that was going
to happen. IT WAS NOT A HARM WITHIN THE RISK.
o Court held that D was liable because even though the fire was not
foreseeable, some damage was.
o Look at B < PL – P is the probability that something will happen.
Things out of blue, you may not be liable for because if they are
unforeseeable then you cannot tailor your behavior for unforeseeable
risk. What makes you a risk is when you ignore foreseeable risk in the
AB stage.
o The court used the direct cause test which is a very pro-plaintiff
test.
o The fire was directly caused by the falling plank.
o D wants to say that the unforseeability of what happened should get
them off of the hook
o The P will argue that you only need direct cause
 Forseeablity: Palsgraf: D push a passenger onto the train, the passenger has
a package, the package it dropped out his hands, turns out their were
fireworks in the package and that causes the sale at the end of the platform
to fall and injure the P.
o D will argue that there was no breach of duty because they were
trying to help the passenger on the train.
o Cardozo said that negligence is different from intentional torts and
the negligence is not going to transfer to P.
 o When it comes to negligence, Ds should only be on the hook for
foreseeable things that happen.
o “orbit of danger” // “orbit of duty”: the risk reasonably to be perceived
defines the duty to be obeyed.
 P has to sue for some breach of duty owed to her and there is
none. Cardozo said that we do not even need to talk about
proximate cause because she fails a breach of a duty.
o Andrews dissent – Andrews explains the duty issue the way we have
explained it so far this semester, that everyone owes everyone at
large a duty of care.
o Andrews won on the duty issue. The majority view is that the
UNF P loses because there is no proximate cause. Cardozo's
view that the UNF P loses because there is no duty is a minority
view.
 Wagon Mound: D’s ship spilled oil into the bay, some of the oil adhered to
the P’s wharf. Then however, the oil was set afire by some molten metal
dropped by P’s workers, which ignited a cotton rag floating on the water,
because of this the whole dock burned.
o Although the P was a foreseeable P, the type of injury (burning) was
not foreseeable, and the mere fact that the P suffered some
foreseeable harm cannot be on the hook to make the D liable for
unforeseeable harm.
 The court overturns Polemis, says that it is easy to look after
the fact and look how direct it is. But we care about foresight.
 The D SHOULD ONLY BE LIABLE FOR HARMS WITHIN THE
RISK.
 D should only be liable for harms that were within the risk that
made the Ds conduct negligent in the first place.
RULE: An actor’s liability is limited to those harms that result from the
risks that made the actor’s conduct tortious.
o Thompson v. Kaczinski: they disassembled a trampoline, it blew into the
road, a car wreck occurred because the P tried to swerve to avoid the
trampoline.
o Whether or not there is a legal duty is to be decided by a judge.
o Most courts say we do not need to talk about foreseeability when we
are talking about a duty because we assume that there is a duty. – no
following Cardozo
o Stoleson v. United States
o If it a harm within the risk, that makes the conduct negligent then PC
is trivial because it is within the scope of the harm
o Egg shell skull case: it makes no difference that a normal
person in Ps situation would have recovered. D takes the victim as
found. An foreseeable extent of harm is still something that the D can be liable for.
RULE: extent of harm and the type of harm, if within the scope of risk, D is
liable for the extent of harm.
When an actors tortious conduct causes harm because of a preexisting
condition, is a greater magnitude that might be reasonably expected, the D
is still liable. Still liable for the unforeseeable extent of harm.
There are different ways you want to push the analysis, if you are the P it benefits you to say it was an
unforeseeable manner or extent of harm.
 
D will want it to be an UNF type of P because that will help you avoid liability.

o Ex: you run your car into someone who is on their way to take insulin to
their friend
 A/B: is that you might hit someone
 C:
 Cause in fact: but for your negligent driving the friend
who needed the insulin would have gotten it
 PC: D will say this is not foreseeable, unforeseeable P
o P will try and say this is not unforessable because
the foreseeable people are the people out there on
the road.
o In this situation you do need a large PC analysis.

o Wagner case: D did not shut the door to the RR car. Guy fell out, and his
cousin went to look for him and also fell off the bridge and sued the RR for
the negligence
o Cardozo: “danger invites rescue” and said it was foreseeable
o If the danger is foreseeable, it is also foreseeable that someone will
try and save them.
o Even if the harm that happens was not the only, or primary
harm within the risk, it can still can count as being a harm
within the risk.
o Does not need to be “the” harm within the risk, it just needs to
be “a” harm within the risk.
o The fact finder must find if the harm was among those within the risk.

UNF Type (kind) of harm  Polemis: What

was unforeseeable was the
kind of damage that P suffered
here. PC is OK as long as direct
result (minority)
 Palsgraf: "room
for argument", Corodozo
makes a distinction between
bodily damage and property
damage. The nature of the
interest invade matters. Even if
it's okay with an UNF extent of
harm, we will still want to make
a distinction about the type.
 Wagon Mound: no
proximate cause
UNF Plaintiff (D did not  Polemis: does not
have notice that this tell us
person was going to be  Palsgraf: no duty
injured) (others no PC)
 Palsgraf dissent:
PC okay as long as direct
connection

UNF Extent (of harm)  Polemis: dicta: yes

you can still have PC even if the
extent of the harm was
unforeseeable.
 Palsgraf: dicta
NOT holding that PC is okay.
We may assume that it still OK
for the case to still be valid
here.

UNF Manner (the  Palsgraf: dicta that

method of how the PC was okay.
accident occurred) if the
accident itself was
foreseeable, it does not
matter the precise
method in the way it
was unforeseeable.

UNF Intervention by a  No proximate

3rd party or force cause. If it was unforeseeable
(does not have to be then that would cut off the
negligent) causal nexus.
Fire rule: responsible for the house next to you, but not anything else. Arbitrary line.
Intervening cause: that does not decide anything, but some of those are superseding causes those
cut off liability. It is superseding the original Ds liability.
Criminal 3rd party intervention – just because it’s criminal does not make it superseding. Some
criminal 3rd party acts ARE foreseeable such as in the Restatement’s example of a motor inn. The
motor inn was in a bad part of town and the crime rate was high. There were bad locks on the
doors and one day someone broke into the Ps room and assaulted her. P sued the motor inn. The
motor inn will try and blame the third party and say that they are not on the hook because that
was unforeseeable and a superseding cause. However, the P will argue that given the
circumstances of it being in a bad part of town, it was not unforeseeable.
o intervening acts
o You have to figure out which intervening causes are superseding.
o Calling it an intervening cause is a neutral term.
 

b. Causation Table
 i. Unforeseeable type of harm
1. Wagon Mound (Majority)
1. No Proximate Cause
2. Polemis (Minority)
1. Proximate Cause as long as
there is a "direct" cause
ii. Unforeseeable plaintiff
1. Palsgraf
1. Andrews (Majority)
1. Proximate Cause will
likely not work
2. Speaks to the Plaintiff
being in the orbit of danger
2. Cardozo
1. No duty to unforeseeable
Plaintiff
ii. Unforeseeable Extent of harm
1. Stoleson
1. Proximate Cause okay for
Eggshell Skull
2. Dicta
1. Palsgraf - Cardozo
2. Polemis
ii. Unforeseeable manner
1. Hughes
1. Proximate Cause
2. Dicta
1. Palsgraf - Cardozo
b. Intervening cause
a. A third party's negligence will not necessarily
knock out the original negligent act
b. Superseding Cause
i. An intervening cause that is so
extraordinary as to cut off liability
ii. Unforeseen, negligent, third-party
intervention
1. Non-negligent acts may also cut off
liability if unforeseeable
2. Can be force of nature
ii. Just because an act is criminal does not
equate to a superseding cause
o Case law
o Marshall v. Nugent: D employee cuts a corner, the P car is coming the
opposite direction. P swerves into the snow and there is no injury yet. D suggest
to P that he walk up the hill and warn oncoming traffic about the accident.
Another driver hits the P.
o D might concede that they were a little negligent however they will say
that they were negligent with people on the road.
o D was the cause in fact: but for the D’s negligent driving, the P would not
have gone to the top of the hill and be hit by another driver.
 o UNF P: the plaintiff in this case was foreseeable because the D driving
negligently, the harm would be that you would hit someone like this
o UNF manner: D might say this is not foreseeable manner. It is a weird
turn of events. Might hit someone else in a car but it is not foreseeable
that a person would get hit straight on.
o D will argue that he did not hit P, that the 3 rd person was the immediate
cause.
o The 3rd party was not liable because that person was driving normally
and when they came up over the hill they did not have time to void
hitting the person
o P will argue that danger invites rescue – it is not the most obvious thing
that invites the risk. When you have a dangerous situation things like
rescue will flow from that and there should be a remedy to them.
o P will say that the D did not hit her directly but the accident foreseeably
flowed from the D’s negligence. P will say that was a harm within the
scope of the risk that made the D’s conduct negligent in the first place.
He should have foreseen the risk and there would be secondary risk.
o Unforeseeable manner will not defeat liability

Herman v. Markham Air Rifle CO.

 Marketing department proclaimed that these guns were harmless
instrument. The D manufacturer here sends out loaded air rifles to the store
who will sell them and that is the negligence in this case. The third party
customer picks one up and pulls the trigger and shoots the sales clerk.
 D negligence of shipping the loaded air rifles and then we have a third
party's act which is the act of the customer. The court assumes that it was
negligent --- third party's act ------ P's injury
o Jury thinks that the costumer/ 3rd party was negligent.
 
Similar chain of events in Derdiarian v. Felix Contracting Corps.
 Construction workers only puts out only one wooden barrier (use evidence
on custom to show that they normally put out more barriers, and there is a
city ordinance to put out more barriers. Restatement: when it is an
ordinance that is violated, as opposed to a statute applies equally to
ordinances adopted by local counsels. Courts will treat is as some evidence
but no dispositive to see if it was a breach of duty) ---- here the court said
one barrier is negligent --- 3rd parties act, guy forgetting to take his meds
for epilepsy --- P suffers devasting burns.
o In this case the jury also thinks that the driver was negligent (3rd
party)
 
 In each case we have but for cause and also the third party being negligent
 D will argue that maybe we are a but for cause but the 3rd party is also a
but for cause and should be negligent and held liable. (this is different from
Nugent because the 3rd party there was not negligent)
 P will argue that it was negligent in the first place and you can foresee that
people might hit construction workers.
 P wants to say that these third parties are harms within the risk and
are what makes it negligent in the first place because we should
 recognize that there are not careful drivers and costumers will pick
them up
 As a practical matter than can use the 3rd parties, but they will want to sue
the gun manufacturer and the construction company because they are much
more likely to recover from them.
 The court says the third parties asks were foreseeable and was a
harm within the risk.
 This was foreseeable as a consequence of putting a loaded gun on the
market.
 They said if it was not forseeable then that would break the casual nexxus.
McLaughlin v. Mine Safety Appliances Company, 1962
 Manufacturer creates heat blocks and you are not put them on the direct skin of people,
firefighter was trained on how to use them, and it may be the case that the FF got the
blocks out of the container and then just sat there and watched them apply them directly
to the girl, FF testified that he warned the nurse that he used the, but this is disputed
 P sueing the manufacturer
o P will argue that D did not give adequate warning on how to use them
o But for cause: but for the lack of the warning, P would not have suffered the
injuries
 D will argue that there is no proximate cause here
o D will say that the FF intervening act was not foreseeable
o FF have been trained and then it would be very foreseeable that he would be
negligent.
o The D characterizes this as a higher level of negligence, it is gross negligence.
They are talking about a FF being grossly negligent and that is a way to distinguish
the other cases and that is a way to distinguish these case from other cases with
third parties actors whose acts are foreseeable.
o Now we have a third party who is a worst actor than the original party, maybe
that worse action should cut off the proximate cause
o D's negligent was so gross to supersede the manufacturer.
o The court rests its opinion on the FF sitting ideally by that was unforeseeable.
o What matters is that the third party's conduct was foreseeable.
 
***all about the foreseeability of the third party****
 
Watson v. Kentucky & Indiana Bridge
 D lets gas seep into the city and that likely seems negligent.
 The risk that there could be an explosion
 An explosion did happen
 The guy said he was just putting a cigar out, but there is some evidence that there was a
criminal act
 The watson case, the one with the match, if he threw it intentionally, that act is so bad
that we cannot charge the D that they should have foreseen that
 
Brauer v. New York Central & H.R.R.Co.
  Wagon was hit and people stole the stuff off of it
 The RR was negligent and it was a but for cause suffered by the P
 And in each case we have foreseeable P, and foreseeable harm, but we have an
intervening 3rd party actor
 But there we have 3rd parties who are doing a potential harm.
 The D will argue that they cannot go around forseeing crime. And people are going to be
negligent going down the road.
 But when are not talking about negligence but criminal acts, D will say that we cannot
be on the hook for that. If these theives purposely came in and stole the stuff, that should
take the RR off the hook, but again the courts come down to unforseeabilty. It all comes
down to forseeability.
 Here the court said that this is foreseeable because they are trying to benefit
themselves
 
 
Yes, the bad nature of the act matters because it becomes less foreseeable that people will
act so badly, but at the end of the day the question is was it foreseeable because if it is
foreseeable it will NOT cut off liability.
 
Foreseeability is what matters here.
 
If there is a foreseeable risk there can be still be liability for the D, even if the intervening act is
criminal.
 
Ex: lori is a guest at a place where people stay, there is sexual assault, and lori sues for not
having good locks, this was neglient because the D should have foreseen the act because they
happen a lot. It can be in certain situations that even criminal acts are foreseeable.
 
Ex. Driver looking at the phone, should the driver cut off the libaility of the texter?
Was it foreseeable to the texter that there would be this intervening act?
 The battle here would be a breach of duty. The harm within the risk was that they would
be hurt. It is a foreseeable intervention by the third party so the D is not going to win lack
of proximate cause.

P. 85 but stopping in the wrong place. Bus stops in the middle of the road. This is negligent
because someone getting hit because of this is foreseeable.
a. Passenger is hit by an automobile that is proceeding along the right hand side of
the bus
i. This is foreseeable because it is the harm that made this act negligent in
the first place
b. Passenger is struck by a meterorite
i. The bus will not be liable. The bus was negligent because where it parked
but the P should not recover because that was not a harm within the risk of
parking there.
 ii. What the bus did not increase the risk of harm of what happened to the
P. this is not a harm within the risk that made the bus negligent in the first
place.

DAMAGES
a. Actual Damage
b. The injury has to be beyond a “de minimus” amount of
harm
c. Lost opportunity doctrine – traditionally you did not have
a damage to sue for, but by reframing it as a loss of opportunity
you can recover.
ii. Multiple Tortfeasors
1. Indivisible Injury (Even if not acting together)
a. Traditionally
a. Joint and Several
b. Modern
a. Joint and Several Liability
b. Several Liability
i. Liable for percentage of fault attributed to
the specific defendant
b. Hybrid
2. Concerted Action
a. Joint and Several Liability
a. Both defendants will be liable for same amount
i. Plaintiff cannot collect more than the total
amount awarded
2. Enterprise Liability
a. Joint and Several Liability
b. Limited to small industries
a. Industry came together to act as one
b. Shifts burden to the defendant to prove they were not
guilty
2. Alternative Liability
a. Joint and Several Liability
b. Will usually only work for two defendants
a. Defendant has opportunity to prove it was the
other defendant
2. Market-Share Liability
a. To date, works against drug manufacturers
b. The defendant will be liable for his percent of the market
share
2. Vicarious Liability
a. Not defendant's fault but will be held liable based on
status
b. Both liable for the same amount of money
 c. Respondeat Superior
a. Most common type of vicarious liability
b. Applies to someone not acting within the scope of
employment

AFFIRMATIVE TO DEFENSES TO
NEGLIGENCE
1. Contributory Negligence
a. Any negligence by the plaintiff will defeat plaintiff's case
a. Remains only in four states and Washington D.C.
b. Butterfield v. Forrester: P rides horse negligently,
into the pole that the D negligent left out in the middle of
the road.
i. Both parties were negligent and the court
said NO COVERY
ii. Under traditionally contributory
negligence, both and P and D are
negligent, there is no recovery.
iii. When neither the P nor the D were
negligent then the P does NOT win,
there is no recovery.
Ex: P is driving with bad breaks, and D was speeding. D hits P before
P can even attempt to apply the breaks.
Can the P recover? Yes because P’s bad breaks had nothing to
do with the accident because she did not even have the chance to
slam on the breaks and it did not cause the P’s harm.

b. Last Clear Chance

a. Defendant had last clear chance to avoid
negligence
b. Mitigate harsh effect of contributory
negligence – this is the exception to the contributory
negligence!
i. Davis v. Mann: P left his donkey tied up in
the road (negligent) and D ran into the
wagon with his donkey (also negligent). P
could recover even though P had been
negligent because D has the last chance to
avoid the harm.
c. Last clear chance came to be because juries
realized that if they found the P even a little bit negligent
then the P could not recover so they worked around it.
d. Gone in most states
i. Considered when assigning fault
b. Mitigating before Damage
a. Traditional
i. No liability for failure to mitigate prior to
damage
b. Modern
 i. Can be liable for failure to mitigate before
1. Some states disagree
b. Mitigating after Damage
2. Comparative Negligence/Fault
a. There is no Last Chance Doctrine
b. Doesn't necessarily throw plaintiffs case out
c. Pure
a. Plaintiff can recover for any percent the defendant
is liable
b. Plaintiff fault greater or equal to 50%
a. Can bar recovery
b. Recovery reduced if not barred
b. Mitigating before Damage
a. Modern
i. Can be liable for failure to mitigate before
ii. Stehlik v. Rhoads: guy drank, then road on
the ATV, crashed – court said that the P can be held
liable for not putting his helmet on beforehand, and
mitigating his damages BECAUSE THE ACCIDENT
WAS FORESEEABLE.
1. Some states disagree
b. Mitigating after Damage
a. If cannot be separated
i. Apply percentages like pure comparative
negligence
b. If can be separated
i. Defendant liable only for original harm
ii. Minority View
1. Defendant can still be liable for all
harm

4 states stick with traditional contributory negligence (N.C.)

13 states are the pure version of contributory negligence
Of the remaining states, there are 50/50 but more will allow the P to recover in the 50/50 situation.

2. Assumption of Risk
a. Express—signing a waver
a. Total Bar to plaintiffs suit
b. Wolf v. Ford: women invests her money with a
financial agency and loses lots of money.
c. RULE: when permitted by contract law, if you
have a contract absolving D from liability for a future
recovery, it bars recovery.
b. Implied Primary
a. Danger is open and obvious, so there is no duty on
the Defendant
b. Plaintiff has no prima facie case
 c. Murphy v. Steeplechase Amusement Co.: man sued
the amusement park when he was hurt on the flooper. Man
had watched people go on the flooper before him.
d. RULE: Implied assumption of risk - if the P
voluntarily encounters a known risk (known to the p)
then there is NO RECOVERY.
e. D owed a duty, but it wasn't breached -- if you did
not breach it then D was not negligent in the first place.
f. Ex. Getting hit by a baseball at baseball games.
b. Implied Secondary – when the P knowingly encounters
the risk created by the D's negligence. This means the P's case
may still be valid. This becomes a type of contributory
negligence.
a. Affirmative defense
b. Can be contributorily negligent for voluntarily
incurring the risk
When D's conduct was risky
 Driving a car -- not unreasonable (PRIMARY)
 D is not creating a risk
 Driving the car drunk -- unreasonable (SECONDARY)
 If P gets in know you are drinking. It might be open and obvious to the P that the car is
getting drunk. This does not absolve the D. so when the P is encountering that risk, this is
SECONDARY ASSUMPTION OF RISK
 Even though it was open and obvious it does not get rid of D's liability

P's Intent   Rule: EXPRESS ASSUMPTION OF RISK BARS  

RECOVERY
The P has intentionally waived her right to
sue for negligence, said she is good even if
she does not get money. P cannot recover.
Cut off liability completely
Wolf v. Ford case
RULE: when permitted by contract law, if
you have a contract absolving D from
liability for a future recovery, it bars
recovery.

P's No recovery CN/CF  

negligence Butterfield -- if D and P are both neg then P
cannot recover (traditionally)
 P is careless riding the horse
Majority view caused on your negligence
 
Secondary implied assumption of risk --
when the P knowingly encounters the risk
created by the D's negligence. This means
the P's case may still be valid. This becomes
a type of contributory negligence.
  
When you see the D is drunk and you get in
anyways
 P is conscious amount the decision

P's Non- Primary implied assumption of risk Yes P can recovery.  

negligence -- D was not even negligent. It was
not unreasonable for the D to
create the risk. This is a complete
bar because there is no breach of
duty.
No recovery
The open and obvious risk is a
reasonable risk and makes you not
negligent in the first place.
Whether the P was aware of the
risk is relevant to see if D was
unreasonable in the first place.

  D's Non-negligence D's Negligence D's

intent

Defense in a Negligence Action

 Contributory Negligence: is an absolute defense, and wipes out Ps claim even if
D’s negligence is much greater than P’s.
o In any case where you think CN might apply, consider whether the
doctrine of “Last Clear Chance” – under LCC, if P has negligently put
himself in a position of risk, and D then sees (or should see) P’s peril in
time to avoid the problem, D is said to have had the Last Clear Chance to
avoid the peril, and that LCC wipes out P’s contributory negligence.
 Ex: P negligently goes into the intersection and then stalls. D
comes along and either sees P’s peril but disregards it or doesn’t
notice the peril. Either way, since D had the LCC to avoid the
accident, P’s CN is wiped out.
 LCC is always asserted by Ps, NOT by Ds.
 Comparative negligence: the distinction between “pure” or “modified” only
makes a difference where P’s negligence is at least half of the total negligence
o If P is found to be 60% responsible for the accident and D 40%, in a
“pure” jurisdiction P collects 40% of her total damage
o Whereas in a modified or 50% jurisdiction, P gets nothing.
 If the fact pattern gives you the actual statutory language, you
should be able to tell whether the statute is a pure or modified one.
You should recognize a pure statute by the fact that it doesn’t say
anything about P’s negligence being “as great as” or “greater
than” Ds. A modified or 50% statute will have to deal specifically
with this “as great as” or “greater than” case.
o Where P has failed to se some available safety device (seat belt or
helmet) raise the issue of what effect the existence of a comparative
 negligence statute might have. Courts vary so much on this issue that it
is hard to say what the effect might be – the most likely effect is that P’s
failure to use the devise will be just one type of fault, and that failure will
be added with everything else in computing P’s percentage of fault which
will then be applies to all the injuries.
o LLC in the majority of jurisdictions does not apply with comparative
negligence.
 Joint and several liability v. several liability
o Joint and several liability means that P can get judgments against each D
and each D will be liable for the entire amount of the inseparable harm.
But P can only recover the amount of their harms, not more. This
approach is pro Ps.
o Several liability is when the P sues each D separately and each D is only
responsible for their share. This approach protects Ds.
 The entire difference between JSL and SL is looking at where the burden will
fall. With JSL the P is taken care of. And the Ds will have to sue another in a
suit for contribution.
o Suit of contribution – when you feel like you paid the P more than they
should have. You sue the D for contribution
 The traditional rule: fractional shares when there were multiple tortfeasors.
(straight shares)
 Modern rule: is that we make a percent judgment, similar to contributory
negligence
 Most states with comparative fault have JSL.
 Kansas is several liability state with comparative fault.
 Bar examiners – comparative fault & JSL should be the default.
When there are multiple tortfeasors for the same harm:
1. Indivisible harm: can’t separate the harm, must have JSL/SL/ hybrid
2. Concert of Action/ Concerted Action: both Ds were negligent, but only one did
the actual harm but the other D was necessary to bring about the result. We hold
the D who was the less direct cause of the harm just as liable as the other
participant.
Bierczynski v. Rogers: Ds were drag racing in town. Injury is in someway
divisible because you could say that the injury was caused by the hitting by the one
D. But the court held that they are both liable because they are acting in concert.
Even in states that have only SL, they will still be held responsible because
the idea behind concerted actions that they were acting as one. Both Ds will be
liable for the whole amount. Can’t divided up the Ds because they were acting in
concert.
3. Enterprise Liability – small industries that act together to control a risk. The
group is liable as a whole because they got together to make a decision, P can’t
point to which person in the group was liable, so it is the enter enterprise is liable.
When the P can’t figure out which of the entities to sue, we shift the burden on the
enterprise and it is similar to Ybarra (burden was shifted to the hospital so that
they would start pointing the finger). They will all be held JSL. This is a way to
smoke out information.
4. Alternative Liability -- Another type of joint and several liability is called
the doctrine of alternative liability. Summers v Tice  (1948) contributed to the
doctrine when the court found that under the doctrine of alternative liability, two
independent tortfeasors may each be held liable for the full extent of the plaintiff's
injuries if it is impossible to tell which tortfeasor caused the plaintiff's injuries. The
burden of proof will shift to the defendants to either absolve themselves of liability
or apportion the damages between themselves. If the defendants, however, are
acting in concert with each other, then the doctrine would not apply, because then
both Ds would be responsible regardless of who pulled the trigger
 There is a theory that the court used the substantial factor test in but for cause. Not
above 50/50 but might say it was substantial factor to tip the scales. Or the practical unfairness
of denying the injured person redress because he can't prove how much damage each did. Or
the lack of information on the part of the P, the D can fix. That would make it be more like
Ybarra.

Vicarious Liability: when

a person is held liable for
acts that the did not
cause or held
liable for conduct of
another
o Masters are vicariously
liable for the torts
committed while the
latter are acting
within the scope of their
employment
Vicarious Liability: when a person is held liable for acts that the did not cause or
held
liable for conduct of another

 Vicarious liability you do not need to show that the D breached a duty
 VL applies to respondeat superior and partnerships
 Respondeat superior
o The underlying tortfeasor is liable to the plaintiff and the non-
negligent employer is liable to the P
 This is different from direct negligence. When an employer itself is being
negligent in its training or retaining of employees then the P does not need
respondeat superior and can just prove direct negligence.
 The idea behind respondeat superior is a practical one – employees have
deeper pockets so the P will be able to recover.
o Also, employers benefit by having employees so they should have to
accept the other side of that as well.


o Masters are vicariously liable for the torts committed while the latter are
acting
within the scope of their employment
Regardless of whether master is liable, servant will be held liable too (π’s p.o.v.:
master and servant jointly and severally liable)  master has a right of full
indemnification against the servant