Goals of Tort Law

1. Corrective Justice/Fairness—Defendant is responsible for repairing wrongs to plaintiff.

2. Compensation—Primary concern with compensating injured victims, focused on harm to victims needing
compensation
3. Economic Efficiency/Incentives—Manipulating incentives of defendants and victims to take into account
cost/benefits of actions before proceeding, thus deterring excessively risky activity. Examines whole system
rather than particulars to plaintiff and defendant. The goal is to achieve optimal level of deterrence

I. Intentional Torts
Battery
 Restatement (Second) of Torts, §13:
o An actor is subject to liability to another for battery if:
 (a) He acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
 (b) An offensive contact with the person of the other directly or indirectly results.
 Questions to Ask for a Prima Facie Case of Battery:
o 1)Did D have the requisite intent?
o 2) Was there contact?
o 3) Was the contact harmful or offensive?
 Intent: Voluntariness
o Restatement § 1: Intent
 A person intentionally causes harm if he brings about that harm either purposefully or
knowingly (purposefully—desire to bring about that harm; knowingly—certain harm will
occur). Restatement abolishes difference between purpose and knowledge because
either one will satisfy requirement of “intent.”
o For an act to be intentional, it must be voluntary.
 Knight v. Jewett “Touch Football”
 INTENT IS NECESSARY FOR CAUSE OF ACTION FOR ASSAULT AND BATTERY
 Polmatier v. Russ “Insanity Defense”
 Defined "ACT" as " EXTERNAL MANIFESTATION OF ACTORS WILL"
o Muscular reaction is always an act UNLESS it is a purely reflexive reaction in
which the mind and will have no share.
 Seizures …sleep walking etc. If there was no prior knowledge of issue
(I.e. I know I’m a werewolf but I did not take proper precautions to
lock myself up during full moon)
o RATIONAL CHOICE IS NOT REQUIRED
 One can make a crazy choice
o Exceptions: First Law of Nature
 Laidlaw v. Sage
 Act or omission done or neglected under the influence of pressing danger was done or
neglected INVOLUNTARILY
o Intentional and wrongful physical contact with a person, without his or her consent, that entails some
substantial certainty/knowledge of contact
 Vosburg v. Putney— (boy kicks P under the table lightly; P loses use of leg)
 If the intended act is unlawful—whether or not it was intended to cause harm—then
intended action to commit it must also be unlawful (intent to act vs. intent to harm)
  Egg/Shell/Skull Rule—You take the plaintiff as you find her when you commit an
intentional tort; therefore, defendant is responsible for full result of damages.
 Garratt v. Dailey (boy pulls chair out from woman sitting under)
 Substantial Certainty Test—There must be substantial certainty that act will cause
contact. (You do not need to know the precise harm but as in this case there was
substantial certainty that woman would fall)
o Intentional torts do not generally differentiate between adult and children
 White v. University of Idaho (Piano teacher touches student that causes harm)
 Court holds that restatement is not binding and that even though act was not unlawful
or intended to harm it still satisfies intent element.
 Rejects restatement substantial certainty (of contact) test.
 Intent: Transferred Intent
o Intent transfers, and D is liable, if
 (1) D commits a different tort against P than the one he intended (note: only applies to
assault, battery, trespass to land or chattels, and false imprisonment), or
 (2) D intends to commit a tort against X, but actually commits a tort against a different
person (P).
 Manning v. Grimsley “Wild Pitch”
 Battery: Offensive Contact
o Was there contact?
 Leichtman v. WLW Jacor “Smoke gets in your eyes"
 "intentionally directing a matter or object towards someone if offensive can be
considered battery"
 Madden v. D.C. Transit "Liability for Buses"
 Claim was missing showing of:
o MALINCE
o WILLFULNESS
o SPECIFIC WRONGFUL INTENT
 Without one of these elements, the D could not be held liable
for assault and battery.
 Morgan v. Loyacomo " Just Checking"
 KNOCKING OR SNATCHING anything from P hand OR TOUCHING ANYTHING
connected with his person when done in a rude and insolent matter is sufficient
to constitute an assault and battery y
o Contact can be indirect. Putting something into motion, or contacting something intimately
connected with the P, may be enough. See Rest. 2d §18, Comment c

 Battery: Harm and Offense

o Was the contact harmful or offensive?
 Wallace v. Rosen “Crowded World"
 "In a crowded world, certain amount of personal contact is inevitable and must
be accepted"
o The following matter:
 Time
 Place
 Circumstance
o In context of fire drill D's touch of P cannot be considered rude, insolent or
angry
 Cohen v. Smith " Idiosyncratic Objections"
  Oftentimes context-sensitive and culturally-sensitive determination.
 Rest. 2d §19: “A bodily contact is offensive if it offends a reasonable sense of
personal dignity.”
 Defense to Battery
o Consent
 Consent is only defense in intentional torts (not assumption of risk)
 Rule: If a defendant’s actions exceed the consent given, and he does a substantially different
act than authorized, then he is liable. This is an affirmative defense—burden on defendant.
 “Sometimes a defendant will offer a plaintiff’s consent as an affirmative defense
… to a battery claim; in other cases, the consent may simply render an otherwise
offensive contact inoffensive, negating an essential aspect of the plaintiff’s case.”
 Mohr v. Williams “Ear Doctor”
 Patient consented to injury on right ear but turned out that he needed it more on his
left ear. The doctor did not received consent for operating on the left ear (patient
would have probably had agreed) and thus held liable for injury.
 Informed consent requires victim to understand consent such as through waiver.
Doctors often use a standard consent form.
 Consent is a strong defense because it is based on principles of autonomy
o Consent can sometimes be implied from actions as well as in emergency
situations.
 Neal v. Neal “Frontiers of Liability”
 Concept of Fraudulent Consent
 Hollerod v Malamis “Arm Wrestling”
 In state of intoxication P was incapable of expression a RATIONAL WILL"
o D had KNOWLEDGE of P's STATE
 THEREFORE: CONSENT WAS INNEFECTIVE!!!
o Insanity
 Rule: An insane person is liable in tort for damages caused when he or she (a) was capable of
entertaining intent to commit harmful/unlawful act, (b) did in fact entertain that intent, and
(c) acted upon that intent.
 See Polmatier v. Russ
 Where an insane person by his act does intentional damage to the person or property of
another he is liable for that damage in the same circumstances as a normal person
would be—Judgment for P.
o Like child in Garratt, it doesn’t matter whether or not the person intended harm
or was from a “special class” but rather where they intended volitional act to
make offensive contact.
 Rationale
o Moral/Corrective Justice—Core of duty here is fault; however, is it right to hold
someone responsible who may not understand fault.
o Economic Incentive—Provide incentive to make guardians more watchful of the
insane person.
o Self Defense and Defense of Others
 Rule: An action of force (complete defense) is justified by self-defense whenever the
circumstances cause a reasonable person to believe this life is in danger or that he is in danger
of receiving great bodily harm and that it is necessary to use such force for protection.
 Wright v. Haffke "Escaping Thieves"
 Court rules that jury may consider the contextual factors of the robbery.
 Court rules for D since he could have reasonably believed he was being assaulted
o Question of timing
  Shooting happened after P committed an assault and while they were
attempting to commit a robbery
 D owned P no duty of affirmative care.
 Had right to resist attempted robbery
o In self-defense arguments, we’re seeing for the first time “reasonableness”
criteria that is similar to negligence
 Under what circumstances may a person intervene in defense of a third party?
 Restatement: A person is privileged to defend a third party “under the same conditions
and by the same means as those under and by which he is privileged to defend.”
 We want to provide the right incentives so as to not prevent one from intervening to
protect a third party.
o Consent to Criminal Acts
 Restatement §892C (minority approach): If D and P are engaged in a criminal activity to
which P consents, D can use P’s consent as a valid defense.
 Exception: But if the criminal prohibition is aimed at protecting a class of persons
regardless of consent, D cannot use P’s consent as a valid defense.
 Majority Approach: If D and P are engaged in a criminal activity to which P consents, D
cannot use P’s consent as a defense. P’s consent is treated as invalid.

ASSAULT
 Assault Under Rest. 2d §21
o An actor is subject to liability to another for assault if:
 (a)He acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) The other is thereby put in such imminent apprehension

 2nd Restatement: The law does not require real fear (not necessary that the victim
believe that the act will be effective in inflicting the intended injury). Therefore, a victim
may have apprehension—can expect contact threatened but know he can easily prevent
the threatened harm by self-defense—and still recover for an actionable assault.
 Assault: Imminence
o Imminent apprehension: The expectation that, if P takes no other action, D’s conduct will result
in harmful or offensive contact. Essentially, expectation of such contact right now.
o Has the imminent apprehension requirement been satisfied?
o Rule: A threatening gesture will not constitute an assault when there are accompanying words that
clearly negate the gesture’s threat.
 Tuberville v. Savage
 No imminent harm because no judges were present when D said, “I would take out my
sword if the judges were here.”
 Browler v. Ackerley “Sinister Phone Calls”
 *in order to constitute a civil assault THREAT MUST BE OF IMMENENT HARM*
 Concept of near future vs. imminent future
o In this case there was no evidence that Ds were in immediate position to inflict
physical violence on P
 Bennight v. Western Auto “Bat Warehouse”
 D was liable for INTENTIONALLY placing P in fear of being attacked by batts.
 D committed an assault by simply placing P in state of apprehension
 Irrelevant whether D intended for harm to happen \
 Langford v Shu “All in Good Fun”
  D IMPLICITY PLACED P IN FEAR (even if it was a joke) - thus making her liable for
assault
• Rest. § 22 (awareness matters)
• Rest. § 24 (apprehension vs. fear)
• Rest. § 28 (apprehension of unintended contact)

Outrage/Intentional Infliction of Emotional Distress (IIED)

o IIED Under Rest. 2d §46
 One who by extreme or outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.
o Elements of a prima facie claim:
 1) D displays extreme or outrageous conduct
 2) With the intent to cause severe emotional distress (or with reckless disregard for the
likelihood of such distress)
 3) P suffers severe emotional distress as a result
o Was D’s conduct “extreme or outrageous?” Did it go “beyond all possible bounds of
decency?” Is it “utterly atrocious in a civilized community?”
 A very subjective determination!
 Roberts v. Saylor “Blowing off Steam”
o "Law should not intervene when someone's feelings merely are hurt.
Freedom remains to express an unflattering opinion and to blow off
steam"
o IEED Claims rely on conduct that is:
 *OUTRAGEOUS TO THE POINT THAT IT GOES BEYOND THE
BOUNDS OF DECENCY AND UTTERLY INTOLERABLE TO CIVILIZED
SOCIETY"
 Greer v. Medders “Studies in Bedside Manors”
o Circumstances matter!
 Taking into account that D was a physician and made the
comments while P's wife was in hospital bed it could be possible
for P's to have had suffered from intentional infliction of
emotional distress.
 Muratore v. Scotia Prince “Gorilla Motif”
o EXTREME and OUTRAGEOUS character of conduct test can be satisfied
from an actor's KNOWLEDGE that the other is particularly susceptible to
emotional distress"
 Pemberton v. Bethlehem Steel “The Thick-Skinned Plaintiff"
o P's claim did not meet test of "outrageousness" (so extreme in degree to
be regarded as atrocious and utterly intolerable in civilized society"
o Also issue of P’s role as public figure
 Court took into account his emotional ability to handle stressful
situations (rough and tumble union leader)
o Truthful information does not meet degree of destress required to satisfy
IIED claim.
 Murray v. Schlosser (problem)
o IIED: Constitutional Limitations:
  Public figures may not recover for IIED or defamation unless they can demonstrate a
false statement made with actual malice.
 NY Times v. Sullivan (1964)
 Hustler Magazine v. Falwell (1988)
 A public figure is someone who has achieved “pervasive fame or notoriety,” or who
“voluntarily injects himself or is drawn into a particular public controversy.”
 Gertz v. Robert Welch (1974)

PROPERTY TORTS:
 Trespass to Land
o Restatement 2d. §158: One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest of the other, if he
intentionally:
 A) Enters land in the possession of the other, or causes a thing or a third person to do
so, or
 B) Remains on the land, or
 C) Fails to remove from the land a thing which he is under a duty to remove.
 Trespass to Land: Damages
o Nominal damages – symbolic damages, for when there is no compensable injury
o Compensatory damages – standard damages that compensate a P for pecuniary and non-
pecuniary losses
o Punitive damages – discretionary additional damages to punish D for extreme or malicious
conduct

 Nuisance: “Coming to the Nuisance”

o Rest. 2d. §840D: “The fact that the plaintiff has acquired or improved his land after a nuisance
interfering with it has come into existence is not in itself sufficient to bar his action, but it is a
factor to be considered in determining whether the nuisance is actionable.”
o Relevant factors to consider:
 Did P purchase the property with knowledge of the nuisance?
 Did the D’s nuisance activity get worse after P purchased the property?
 Is the nature of the area changing, i.e., from residential to industrial?

 Trespass to Chattels and Conversion

o Intentional interference with the right of ownership/possession of personal property.
 Conversion: Serious interference; requires payment of full value.
 Conversion: D is liable if he seriously interferes (see elements in §222A) with P’s
personal property by exercising dominion /control, or destroying/altering (per
§226).
 Even if the conversion doesn’t cause harm to the property, P is entitled to
recover the full value of the property, or (if possible) bring an action for replevin
for return of the property.
 Trespass to chattels: Less-serious interference; remedy does not require payment of full
value.
 Payment for damage caused
 Trespass to Chattels: D may be liable if he intermeddles with or dispossesses P’s
personal property.
 o Intermeddling: Intentionally bringing about contact with the chattel
 Intermeddling: Liability only if D (1) impairs its condition; (2)
deprives P of use for substantial time; or (3) harms P’s person/
interest (§218)
 Actual damages
o Dispossession: Intentionally preventing the possessor from having access
to the chattel (by taking, barring access, destroying)
 Dispossession: Liability always lies.
 Actual or nominal damages
 Distinguishing between Trespass to Chattels and Conversion
o It’s a conversion if the property is completely destroyed or stolen.
o It’s a conversion if there’s serious interference, as judged by the presence of one or more of
the elements in §222A.
o If the interference is less serious, and not enough of the §222A elements are satisfied, it’s
probably trespass to chattels.
o Russell-Vaughn Ford v. Rouse. "The Last Laugh"
 Refusal, without legal excuse, to deliver chattel, constitutes a conversion
 For conversion to be satisfied D solely had to exercise dominion over something in exclusion or
defiance of the right to the plaintiff
 Theft, Fraud, and Good Faith Purchasers
o Relevant Cases:
 O’Keefe v. Snyder: "Customers of Thieves"
 Possible liability for good-faith purchaser of stolen painting.
 Stolen property- no title acquired and therefor cannot transfer to others
regardless of good faith and ignorance of the theft on the part of the buyer.
o One cannot give what one does not have
 Phelps v. McQuade: No liability for good-faith purchaser of jewelry from an impostor
who obtained it fraudulently.
 Kelly Kar Co. v. Maryland Casualty: No liability for good-faith recipient of stolen money.
 Only BAD FAITH can deprive one of ownership of property
 Wiseman v. Schaffer “Acts of Imposters”

Defenses to Intentional Torts

o Defenses and Civil Procedure
 If P files a complaint, D may:
 File a motion to dismiss because, even assuming what P claims is true, P cannot
win
 Federal Rule 12(b)(6): “Failure to state a claim upon which relief can be granted”
 File an answer denying liability because:
 P’s factual claims are not true; or
 D has an affirmative defense
o Consent
o Self-Defense/Defense of Others
o Defense of Property
o Public or Private Necessity
o Discipline
 o Authority of Law
o Statute of Limitations
 Self-Defense and Defense of Others
o Permits use of reasonable force to defend oneself (or another) against an immediate threat.
o Under the Restatement:
 Reasonable force is comparable force Must first exhaust all other reasonably safe
options! Self-defense as a last resort
o Is there a common law duty to retreat?
 Non-deadly force:
 No duty to retreat; can fight back with reasonable force. Rest. 2d §63, Comment
m.
 Deadly force:
 Majority (Illinois): No duty to retreat; can fight back with reasonable force.
 Minority (Restatement): Duty to retreat, unless in your home. Rest. 2d §65,
Illustration 5 & Comment i.
o Castle Doctrine
 Defense of Property
o Permits use of reasonable force to defend one’s property against an immediate threat.
o Is deadly force “reasonable force” in defense of property?
 Majority: No right to use deadly force in defense of property alone. There must be an
immediate threat to personal safety.
 Illinois: Right to use deadly force in defense of property only if threatened with violence
or a forcible felony (one that involves a threat of violence)
 Minority: Property owners have the right to use deadly force in defense of property
alone.
 See also state Stand Your Ground laws, which establish a presumption that when
someone enters your property you are at risk of death or bodily harm.

 Rule: Defense of property is afforded less protection than self-defense to person or others.
Rules are designed to discourage escalation of conflict; therefore, a proportionality requirement
exists. The law desires to protect rights to property but simultaneously discourages escalation of
violence. Trade-off between allowing benefits of self-help (self-protection) against dangers of
self-help (violence may escalate).
o Katko v. Briney
 Facts: Briney booby-trapped his boarded up farmhouse with a spring gun to protect against
trespassers. Katko was severely injured when he entered Briney’s house to steal fruit jars.
Issue: May a person protect his property with deadly force?
Holding: A person may not take actions that would cause serious injury to another person in
defense of his property.

 What if the actor is mistaken about the degree of force necessary?

o In self-defense: Excessive force is excused if you have an actual belief, reasonable in nature that
it was necessary to protect yourself.
o In defense of property: A reasonable mistake will not excuse excessive force.
 Necessity
o The Necessity Defense
 No liability for intentional interference with the property interests of an innocent party
(i.e., trespass, conversion), if the D can demonstrate that it was necessary to avoid a
greater injury.
  Rule: Necessity justifies the entry upon the land of another. The other is not required to
facilitate such entry but cannot prevent it. Necessity is a powerful privilege because we value
human life over property.
 Ploof v. Putnam
o P sues for damages caused when D denied him use of his dock for safe mooring
during a storm.
o D held responsible because D would not allow plaintiff to use D’s property to
avoid injury
 Justifications
 Economic—There is a “holdout problem” because the dock-
owner has a bargaining power and can demand extremely high
price even though little cost to dock owner. This protects
against extortionate fees.
 Moral—Implied consent with boundaries (just like implied
consent of unconscious person in hospital)
 Rule: Necessity may require taking of private property for preservation of one’s own property
that may be more value than that property which is damaged but compensation must be
made.
 Vincent v. Lake Erie Transportation Co.
o Steamship owner moors its boat onto P’s dock during emergency causing
damage.
 Private Necessity: An incomplete defense. The “trespassing” D’s conduct is privileged, but D may be
liable for damages.
 Ploof v. Putnam:
 Facts: Ploof sued for damages caused when Putnam denied him the use of a safe
mooring for his boat during a storm.
 Issue: Does necessity justify an entry upon the land of another?
 Rule: Necessity justifies the entry upon the land of another.
o D had no right to kick him out

 A “trespassing” P who is injured while privileged can seek damages (if D wrongly tries to
defend his property and P is harmed thereby).
 Rossi v. DelDuca:
 P sues D after being chased onto D's property by dogs and then being attacked by the
D's own dogs.
o D argued that P was barred from recovering damages because she had admitted
to respassing on D's property.
 Court ruled that P was privlidged to enter onto D's property because the circumstances
of the P's situation indicated that was nesessary to prevent serious harm to P ( She was
running from vicious dogs)
 Privlidge not only relieves the intruder from liability for technical tresspass bUT it also
destroys the possessor's immunity from liability in resting the intrustion.
 Vincent v. Lake Erie:
 Facts: D vessel was kept docked during a severe storm, causing damage to the P
dock.
 Issue: Must a party who asserts private necessity as a defense to the invasion of
another’s property compensate the owner of the property for the resulting
damage?
 Holding: While private necessity permits the invasion of another’s property, the
invader remains liable for resulting damages.
 A “trespassing” D who injures P while privileged is not technically liable for the
intentional tort, but must pay damages.
o Private Necessity, Defense of Property, and Mistake
 Restatement §77: If an intruder “intentionally or negligently causes the [landowner]
mistakenly to believe that [his intrusion] is not privileged,” the landowner is privileged
to use reasonable force (not threatening death or serious bodily harm) to defend his
property.

 Public Necessity: A complete defense; D has no liability for damages.

 Restatement 2d §262: One is privileged to commit an act which would otherwise be a
trespass, trespass to chattel, or a conversion if the act is or is reasonably believed to be
necessary for the purpose of avoiding a public disaster.
 Mouse
 Vincent

 Public Necessity and Takings

o Public necessity can be a defense to some constitutional takings claims.
 But, it requires an existing or truly imminent crisis, and proof that the taking is
reasonably necessary to avert the threat.
o Public Necessity and Mistake
 Struve v. Droge: Defendants invoking the public necessity privilege have to be correct;
they are strictly liable for any mistakes.
o Public Necessity: Two Inquiries
 Two kinds of decisions in public necessity cases:
 Is there a crisis that calls for the destruction of property? (Struve, mistake)
 Once a public crisis is found to exist: Do we destroy the property? If so, which
property? (Mouse)

NEGLIGENCE
 Elements of Negligence
o 1. Duty & Breach
 Duty: Who are the parties? Does the law recognize a relationship between them such
that one party owes the other a duty of care?
 Breach: What is the standard of care, and did D breach it?
o 2. Causation in Fact & Proximate Causation
o 3. Injury & Damages
 Restatement for Negligence: Engaging in “conduct which falls below the standard established
by law for the protection of others against unreasonable risk of harm. An actor is negligent in
engaging in conduct if the actor does not exercise reasonable care under all the circumstances.
Primary factors to consider in ascertaining whether conduct lacks reasonable care are the
foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may
ensue, and the burden that would be borne by the actor and others if the actor takes
precautions that eliminate or reduce the possibility of harm.”

 The Reasonable Person Standard

o The standard of care we expect of defendants is an objective standard.
o We assume the person has normal intelligence and basic knowledge, and assign to him the
physical attributes he has.
o If he has any special skills or abilities beyond those of the reasonable person, he is expected
to use them -- not because the standard of care is higher, but because that’s what a
reasonable person would do.
 Note: Rest. 3d moves away from the “reasonable person” standard to the question of
what is reasonable care under the circumstances.
o Disabilities under Rest. 3d S 11
 The conduct of an actor with a physical disability is negligent only if the conduct does
not conform to that of a reasonably careful person with the same disability.
 An actor’s mental or emotional disability is not considered in determining
whether conduct is negligent, unless the actor is a child.
 The conduct of an actor during a period of sudden incapacitation resulting from
physical illness is negligent only if the incapacitation was reasonably foreseeable
to the actor.
o Mental impairments: insanity (Williams);
 Insane ship captaion
 Rlue: Insaity does not constitute a defense to negligence

o lack of intelligence (Vaughan);
 haystack fire that destrocyed neighboring paroperty
 D thought he shouldn’t be held liable because he’s dumb
 COA disagreed –
o Courts cant be looking at each individual to
evaluate their capabilities
 “judicial economy” argument – what’s going
to make things easier for court and jury
o disability (Lynch)
 Mentally Disables Field Hand
 P Sued D for injury- D should have warned him
 D responds with contirbutoary negligence argument
 Court asked two questions:
 Was D obligated to take precautions based on his
knowledge of P’s mental disability
 Was the P contributorily negligent.
 Case highlights the difference between P v D with mental
dissabilities
o Serious physical impairments (5; Kerr)
 Law required of P (deaf man) to exercise that care for his own saftey
which a reasonably prudent (deaf) man would exercise under the same
circumstances.
 Rest. 3d. S 11: The conduct of an actior with a physical disability is
negligent on if the conduct does not conform to that of a reasonably
careful person with the same disability.
o Superior skills or abilities (Fredericks)
 Rest. 2d §298: The actor must utilize with reasonable attention
and caution not only those qualities and facilities which as a
reasonable man he is required to have, but also those superior
qualities and facilities which he himself has.
  Rest. 3d §12: If an actor has skills or knowledge that exceed those
possessed by most others, these skills or knowledge are
circumstances to be taken into account in determining whether
the actor has behaved as a reasonably careful person.
 Someone with superior stills has same standard of care
 However did they act as a reasonable person would?


Expect a reasonable person to exercise all of their abilities
to prevent a harm.
 Fredericks v. Castora
 Should a truck driver be held negligent for an accident
because they drive trucks for a living
o NO. ONLY ONE DEGREE OF STANDARD OF CARE !
o The Reasonable Person Standard: Age
 Rules:
 Child of like age, intelligence, and experience
 Under age X, no liability; above age X, treated as a reasonable child of like, age,
experience
o See Rest. 3d under-5 rule
 Under age X, no liability; above age X, some rebuttable presumptions
o See Dunn v. Teti “rule of sevens”
o According to Purtle v. Shelton, an “adult activity” is one that is:
 1) Dangerous; and
 2) Normally engaged in only by adults.
 Rule: When a minor undertakes an adult activity which can result in grave danger
to himself and to others, he is held liable to the same standard as the ordinarily
prudent adult.

Negligence: Breach of Duty

Breaching the Standard of Care:
To determine if D in fact breached a duty, can consider:
 Custom
 Learned Hand formula (see also Rest. 3d §3)
 Gut-instinct “reasonableness”
 Negligence per se
 Res ipsa loquitor

Custom as the Standard of Care:

Custom can be used:
 By the P, as a sword: D’s deviation from custom as evidence of lack of due care.
 By the D, as a shield: D’s compliance with custom as a defense, as evidence of due care.
o Note: Custom is dispositive in medicine; merely evidentiary everywhere else.
o See Ellis
 P got sick from years of working without mask
 Common practices of people cannot be ignored in determining wether due care
o Hopper
 Boat radio

Determining Breach – The Learned Hand Formula

 - See Carroll Towing:
o
 Negligence = B (burden of particular precaution) < PL (probability of loss accruing)
o D is negligent if the Burden [cost, inconvenience, infringement on personal freedom, societal value of
the activity] of preventing a foreseeable harm was less than the Probability of Loss/injury occurring.
o Or more precisely (see The Margherita), Negligence = B < ΔPL
- Rest. 3d §3 on Negligence:
o A person acts with negligence if the person does not exercise reasonable care under the circumstances.  
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the
foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue,
and the burden of precautions to eliminate or reduce the risk of harm.

Alternate Ways of Determining Breach: Negligence Per Se and Res Ipsa Loquitor:
Effects:
 Substantive: They affect the definition of standard of care/breach
 Procedural: They affect the jury’s role

Negligence per se permits an issue that ordinarily would be decided by a jury (standard of care/breach) to be taken
away from the jury:
 Violation of statute establishes negligence as a matter of law (or, sometimes, is used as evidence of
negligence).
 Jury can’t second guess it

Res ipsa loquitur - a rule of evidence, not substantive law - permits cases that normally might not reach a jury (because
there’s no evidence of breach) to be sent to the jury anyway.

Negligence Per Se:

- permits an issue that ordinarily would be decided by a jury (standard of care/breach) to be taken away from the
jury:
 Violation of statute establishes negligence as a matter of law (or, sometimes, is used as evidence of
negligence).
Elements:
1. Statutory violation (with no excuse) That does not explicity provide for a right of recovery.
2. Statutory intent: Protecting against this kind of harm; protecting this class of persons
1. This was harm that statute tried to protect against and the victim that it tried to protect
3. Causal link between the violation and the injury
Negligence Per Se – Case Law:
 Generally (Martin)
o Headlights case
 And Excuses (Tedla)
o If there’s a good reason for statutory violation that can excuse you for statatory violation
 And Statutory Intent (Vesely)
o
 And Licensing (Brown)
o Licesining
 Did injury occure because of my lack of liscense! \
  Majority: Failure to be liscensed is not in itself evidence of negligence, D can only be liable
id P’s injury was actually caused by lack of skill or due care
Negligence Per Se: Excuses:
Rest. 3d §15: An actor's violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor's childhood, physical disability, or physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
(d) the actor's violation of the statute is due to the confusing way in which the requirements of the statute are
presented to the public; or
(e) the actor's compliance with the statute would involve a greater risk of physical harm to the actor or to others than
noncompliance.
Negligence Per Se: Statutory Intent:
Rest. 3d §14: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the
type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is
designed to protect.
Negligence Per Se and Licensing:
 Many (but not all) jurisdictions reject the idea that you can be NPS just by failing to have a license.
o Licensing statutes seen as “merely administrative requirements” not defining the standard of care.
 See also Rest. 3d:
o “If, for example, a person operates a motorcycle in a way that suggests a lack of skill, and if the
evidence shows that the person does not have a license to operate a motorcycle because the person
has failed the test that assesses skills, then, depending on the jurisdiction's evidence rules, the lack of
the license may be admissible as tending to show the person's negligent unskillfulness.”
So when is a statutory violation treated as evidentiary rather than dispositive?  
Unclear.  This may happen:
 In licensing cases;
 When the court thinks the per se rule is too demanding; or
 Where the statutory intent element isn’t satisfied
Res Ipsa Loquitor:
- Res ipsa loquitur permits cases that normally might not reach a jury (because there’s no evidence of breach) to
be sent to the jury anyway.
- P must show by a preponderance of the evidence:
0) The P is unable, due to lack of information or access to evidence, to identify the specific circumstances
surrounding the D’s breach of duty.
1) An accident occurred that does not usually occur absent negligence.
2) The instrument of the accident is under D’s exclusive management and control. Consider also D’s superior
knowledge.
o Note: This requirement has been weakened. Now must show that D, as compared to others, was
probably the responsible party.
1. P did not contribute to the injury.
Note: This requirement has effectively been eliminated as a result of comparative negligence doctrine.
- Consequences:
• If P satisfies these two elements, D’s MTD/MSJ will be dismissed.
• The case then goes to the jury, and the jury can infer negligence.
• Then, the burden of proof is shifted to D to disprove negligence.
- “An accident occurred that does not usually occur absent negligence.”
A. If due care had been used, it’s unlikely the injury would have occurred.
– Restatement 2d approach
– Describes most accidents: i.e., If due care is used, only 1% chance of injury.
B. This kind of injury becomes more likely as a result of negligence than as a result of due care.
– Describes most accidents: i.e., If due care is used, only 1% chance of injury; if no due care is used, 90%
chance of injury.
C. This kind of injury usually results from negligence.
– Restatement 3d approach
– Rarely the case! Using the figures on p. 199, injury results from negligence only 8.3% of the time.

- Expanding Res Ipsa: Ybarra:

 Limited to CA – medical- unconscious- very little
 Information asymmetry
 P are in s worse position that D to find evidence
 Unilatoer care
 D’s are only ones in a position to protect against ingury
 Consiiracy of scilence

 Preventing pockets of immunity
• The traditional RIL doctrine relieves the P of the obligation to identify the negligent conduct.  
• Usually, P must still identify the negligent D.
• But see Ybarra, which extends the reach of RIL, relieving the P of the obligation to identify the negligent D.
Why have a doctrine that allows P to recover without proving negligence?
• Information asymmetry: Ps are in a worse position than Ds to find evidence of negligence. Byrne, Ybarra.
• Unilateral care: Ds are the only ones in a position to protect against injury. Byrne, Judson, Ybarra.
• Conspiracy of silence. Need to incentivize Ds to speak up if they know something. Ybarra.
• Preventing pockets of immunity. Judson, Ybarra.