Table of Contents

Tort Basics.............................................................................................................................................4
General Defenses.................................................................................................................................................4
Remedies..............................................................................................................................................................4
Vicarious Liability for Parents/Employers.......................................................................................................4
Justice theory.........................................................................................................................................................5
Utilitarian efficiency theory..................................................................................................................................5
Basic Answer Format............................................................................................................................6
Intentional Torts....................................................................................................................................7
Intent......................................................................................................................................................................7
 Mental Capacity......................................................................................................................................7
 Infancy....................................................................................................................................................7
Transferred Intent..................................................................................................................................................7
Mistake..................................................................................................................................................................8
Battery...................................................................................................................................................................8
Medical Cases – Implied by Law Consent.......................................................................................................9
Assault.................................................................................................................................................................10
False Imprisonment/Wrongful Confinement......................................................................................................11
Trespass to Land..................................................................................................................................................12
 Planes...................................................................................................................................................12
 Permanent Fixtures............................................................................................................................12
Trespass to Chattel..............................................................................................................................................13
Conversion..........................................................................................................................................................14
When does Trespass to Chattel Become Conversion?...................................................................................15
Defenses for Intentional Torts.............................................................................................................................15
Consent:..........................................................................................................................................................15
1. Actual Consent.................................................................................................................................16
2. Apparent Consent.............................................................................................................................16
3. Consent Implied by Law..................................................................................................................16
Social Usages..................................................................................................................................................17
Shopkeeper’s Privilege...................................................................................................................................17
Self Defense/Duty to Retreat..........................................................................................................................17
Defense of Others...........................................................................................................................................18
Privilege of Mistaken Belief of P’s Aggression.............................................................................................18
Mistaken Self Defense...............................................................................................................................18
Mistaken Defense of Others......................................................................................................................19
Mistaken Defense of Property...................................................................................................................19
Mistaken Recapture of Property................................................................................................................19
Private Necessity............................................................................................................................................19
Public Necessity.............................................................................................................................................19
Immunities......................................................................................................................................................20
Sovereign Immunity..................................................................................................................................20
Charitable Immunity..................................................................................................................................20
Parent-Child Immunity..............................................................................................................................20
Spousal Immunity......................................................................................................................................21
Defense of Property........................................................................................................................................21
Recapture of Chattels.....................................................................................................................................22
Recapture of Land..........................................................................................................................................22
Privilege of Arrest..........................................................................................................................................22
Use of deadly force to apprehend criminal suspects.................................................................................22
Mistaken Arrest- Officers/Citizens............................................................................................................22

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 Contributory Neg, in Intentional Torts...........................................................................................................23
Other Justification..........................................................................................................................................23
IIED......................................................................................................................................................23
Defamation...........................................................................................................................................24
NEGLIGENCE....................................................................................................................................26
1. Duty.................................................................................................................................................................27
Cardozo.........................................................................................................................................................27
Andrews.........................................................................................................................................................27
Misfeasance....................................................................................................................................................28
Nonfeasance...................................................................................................................................................28
1. Landowner/Occupier........................................................................................................................28
2. Voluntary undertaking.....................................................................................................................28
3. Special relationship..........................................................................................................................29
Informed Consent...........................................................................................................................................29
Emergency Vehicle Operations......................................................................................................................29
Children..........................................................................................................................................................30
Superior Knowledge/Skill..............................................................................................................................30
Mental incapacity...........................................................................................................................................31
Physical incapacity.........................................................................................................................................31
Custom/Industry practice................................................................................................................................31
Physicians.......................................................................................................................................................32
Gender............................................................................................................................................................32
Religion..........................................................................................................................................................32
2. Breach of Duty?.............................................................................................................................................33
Hand Formula...............................................................................................................................................33
3. Actual causation.........................................................................................................................................33
Tests for Causation.........................................................................................................................................34
1. But for Test...............................................................................................................................................34
o Independent sufficient causes............................................................................................................34
o NESS necessary element to a casual set...............................................................................................34
Problems with Causation................................................................................................................................34
Indivisible injury........................................................................................................................................34
Alternative liability....................................................................................................................................35
Market Share Liability...............................................................................................................................35
Toxic Torts.....................................................................................................................................................36
Possible but Unprovable Causation................................................................................................................37
Medical Lost Chance......................................................................................................................................37
Particulars of evidence...................................................................................................................................38
General Statistics............................................................................................................................................38
4. Proximate Causation..................................................................................................................................38
Superseding Cause Limitation........................................................................................................................38
Direct Consequences Rule.........................................................................................................................39
Intervening Causes.....................................................................................................................................39
Non-ameliorative Intervening Causes.......................................................................................................39
Ameliorative Intervening Causes..............................................................................................................40
Foreseeable Risk Limitation...........................................................................................................................40
Excessive punitive damages......................................................................................................................41
Defenses:.............................................................................................................................................................42
No Worse Off Limitation on damages...........................................................................................................42
Act of God......................................................................................................................................................42
Trivial Contribution Limitation......................................................................................................................42
Contributory Negligence..............................................................................................................................42
Comparative Negligence (only not accepted in 4 states)...........................................................................44
Actual Consent..............................................................................................................................................45

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 Remedies/Liability for multiple responsible parties...........................................................................................45
Contributive Negligence w/o Comparative fault.......................................................................................45
Joint and Several Liability Under Comparative Fault.............................................................................45
Joint and several liability.............................................................................................................................45
Proportionate Several Liability...................................................................................................................46
Threshold approach.....................................................................................................................................46
California approach.....................................................................................................................................46
Without joinder rules...................................................................................................................................46
Negligence per se (goes to duty and breach).......................................................................................................46
Negligence - Customs.........................................................................................................................................47
Medical Negligence Cases..................................................................................................................................48
Res Ipsa Loquitur Negligence.............................................................................................................................49
Premises Liability – Is there a duty?..................................................................................................50
Traditional Law Duties........................................................................................................................................51
General Application............................................................................................................................................51
Trespasser.....................................................................................................................................................51
Licensees........................................................................................................................................................51
Business and public invitees........................................................................................................................52
Modern view.......................................................................................................................................................52
Off-Premises Risks..............................................................................................................................................52
Obligation of non-occupants...............................................................................................................................52
Product Liability.................................................................................................................................52
Implied Warranties..............................................................................................................................................52
Breach of implied or express warranties= strict liability....................................................................................53
Defenses..............................................................................................................................................................53
Defective Design.................................................................................................................................................54
Three types of defects.....................................................................................................................................55
Adulterated food = 100% strict liability for statute violation.........................................................................55
Factors for risk/utility analysis.......................................................................................................................56
Reasonable alternative design R3d §2b..........................................................................................................56
Categorically unsafe products........................................................................................................................56
Defective design by Negligence Per Se/Res Ipsa...........................................................................................56
Defective Warning..............................................................................................................................................56
Common Law.................................................................................................................................................58
Private Nuisance..................................................................................................................................58
Nuisance per se....................................................................................................................................................59
Nuisance per accidens.........................................................................................................................................59
P who moves near the nuisance...........................................................................................................................60
Remedies.............................................................................................................................................................60
Strict Liability.....................................................................................................................................60
Dangerous Activities – Strict Liability................................................................................................................61
Dangerous item on property...........................................................................................................................61
Factors of abnormally dangerous...................................................................................................................62
Dangerous Animals- Strict Liability..............................................................................................................62
Social Factors of Ultrahazardous Activities...................................................................................................62

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 Tort Basics
For all tort claims, π must establish a prima facie case which proves
1. A legal injury to the plaintiff’s person or property
2. Tortious conduct by the defendant.
a. Intentional conduct
b. Negligent conduct
c. Ultrahazardous activities
d. Selling or distributing defective products
3. Actual causation of the plaintiff’s legal injury by the tortious aspect of the defendant’s
conduct.
a. But for
b. NESS
c.
4. Attributable responsibility (“proximate causation”): the absence of any limitation on the
defendant’s legal responsibility for the tortiously caused legal injury. Asks about:
a. Unforeseeable consequences
b. Consequences which would have occurred even w/o ∆
c. Intervening causes
Conduct: a volitional act or omission by ∆, controllable by the ∆. USUALLY EASY TO
SATISFY.
 includes reflexes like extending hand to catch someone
 doesn’t include epileptic attack which results in strike by ∆
 if A pushes B into C, A has committed a volitional act but B has not
Consequence of the volitional movement doesn’t have to be something you intended to
happen, also liable for unintended consequences.
General Defenses (raised when π HAS PROVED a prima facie case)
1. π’s consent (assumption of the risk)
2. π’s contributory negligence/comparative negligence
Remedies
1. Monetary: most common type; accounts for past and projected future loss
a. Economic/pecuniary: medical expenses, loss of earnings, reduction in property
value
b. Noneconomic/nonpecuniary: pain and suffering, disability, loss of consortium
c. Nominal damages: minimal sum of money for injury to dignity
d. Punitive damages: awarded in addition to actual/nominal damages for conduct
which is especially morally blameworthy
2. Nonmonetary:
a. Ejectment: of ∆ from π’s land
b. Replevin: return of π’s personal property
c. Injunction: prohibit or require certain conduct by ∆ to prevent an irreparable
injury- RARE IN TORTS except for imminent trespasses or nuisances.
Vicarious Liability for Parents/Employers
 Employers can be held strictly liable for torts committed by their employees acting within
the scope of their employment.
o Usually doesn’t apply to intentional torts

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  Parents are usually only vicariously liable if they themselves tortuously contributed to P’s
injury (ex: negligent failure to supervise their children)
Tort law seeks to compensate some losses and deter some types of risky conduct.

Justice theory: law should promote each person’s equal freedom.

o Virtue= Internal exercise of freedom to act and choose as you will, should not be
subject to law
o Justice= External exercise of freedom & conditions required for practical exercise
of multiple people’s freedom- subject to law
 Distributive justice: access to fair share of society’s resources needed for
life
 Interactive justice: protects her person and property from others in ways
inconsistent with status as a rational being with equal absolute moral
worth
 AREA OF TORT LAW

Utilitarian efficiency theory: law should maximize aggregate social utility, welfare, or health.
 Utilitarianism (Bentham): greatest happiness for the greatest number
o Rejects individual rights and autonomy.
 Economic Efficiency: also focuses on maximizing total aggregate happiness over
individual’s equal freedom.
o Efficient deterrence of risk creating behavior
o Efficient compensation of losses already incurred
o Efficient administration of systems aimed to achieve these things

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 Basic Answer Format

First heading: identify the plaintiff and the defendant (Camilla v. Sam)
Second Heading: specify the tort claim (Negligence, Battery, Product Defect).
Next headings: elements in the prima facie case, one at a time under SUBHEADINGS, making
sure to include:
(1) the required legal injury for that particular type of tort claim (what is it, and does
it exist in the facts given?)
(2) the required tortious conduct for that particular type of tort claim (what is it, and
does it exist in the light of the facts given?)
(3) whether the tortious aspect of the ∆’s conduct actually caused (contributed to) the
π’s legal injury (and any consequential harms π is seeking relief for); and
(4) whether any of the limitations on attributable legal responsibility for this type of
tort claim are satisfied (what are they and are any of them satisfied in the facts
given?).
Next Heading: Defenses.
 Subheadings for elements of each defense then analyze each element, one at a time,
before considering any possible rebuttals to the defense.
 Discuss any possible defense one at a time if there’s a plausible prima facie case
 Even if you reject the existence of a valid prima facie case, list any possibly applicable
defenses, one at a time
Next Heading: Remedies. Finally, unless there’s clearly no liability, discuss what remedies
would be appropriate.
Make sure to include: policy arguments, split of authorities, counterarguments, easy/difficult
pieces.

Go in depth on issues which are close, complex, or difficult.

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 Intentional Torts

These cases are based on legal fault not moral fault- punishes failure to conform

Intent

P must prove D had the required purpose or knowledge- must rely on external conduct and
circumstances to infer the internal subjective intention. Intent in torts relates to intent to
cause the legal injury (make contact, go on land etc.), doesn’t mean intent to cause the
injury that actually occurs.
 Mental Capacity: Insanity is only a defense where it makes the person incapable of
forming the requisite intent (purpose or knowledge) to cause the required legal injury
(McGuire)
 Infancy: Same rule as insanity (Garratt)

Transferred Intent

Can be used to transfer intent among all intentional torts. Used when D intends to commit one
tort but commits a different one or multiple torts, or intends to target one person but gets
another person
 ONLY fictionally satisfies the intent requirement in the P’s case.
o P still needs to meet all other elements: required injury, lack of consent, actual
causation, and proximate causation.
 P’s injury must be caused by the conduct of the D which was done with tortious intent
o Ex: D hits A with a stick then tosses it over his shoulder w/o expecting it to hit
anyone but it hits B, D is not liable to B. IF D had hit B instead of A in the first
place, he would be liable.

a. The D engaged in conduct with the intent to affect another’s person or property;
b. the P suffered the legal injury required for some trespassory intentional tort, but
c. the actual P or legal injury is not the same as D’s intended victim or legal injury (p. 170)

May be used when:

Tortious intent to trespass against person or property of the P or a third party can be
transferred to satisfy the intent requirement for any trespassory intentional tort action by
the P against the D, IF:
a. The P’s legal injury resulted directly and immediately from the D’s tortious
intentional conduct
o Blocks intent from being transferred to unintended consequences which are not a
direct result of the force set in motion by D.
o Policy argument Ex: D steals a car and later hits the car of a third person.
Hitting that car is not a direct consequence of D’s tortious taking of the car
and so P cannot turn that accident into a trespass to chattel for his own car.

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 b. The D’s intentional conduct was neither privileged (ownership, known consent,
justifiable defense of persons/property) nor due to a mistaken belief that it was
privileged.
o P would instead have to make a negligence or strict liability claim

 SPLIT: R2d says intent can only be transferred between assault, battery, and false
imprisonment. Some authorities broaden it to all intentional torts
o Intent to trespass land/chattel or falsely imprison someone, it’s unlikely to be
transferred unless the consequence is a direct and immediate result of the force used
to accomplish the trespass or confinement & not an accidental result from continued
trespass or confinement which are seen as proximate consequences of the original
wrongful trespass/confinement.

Mistake

Even a reasonable good-faith mistake does not negate intent (Yappen)

 UNLESS in transferred intent the original contact was privileged.
 AND UNLESS the mistake is deliberately and fraudulently induced by the P.
in this case estoppel would be invoked by D- preclude P from trying to disprove what
they represented as true in previous statements or conduct.
 Ds are strictly liable for unconsented to mistaken intentional torts
 Remedies: People who are liable for reasonable good faith mistakes are not subject to
punitive damages, P can at least get nominal damages and can get actual damages.
 R2d §164: Person who trespasses on land or person who has the reasonable belief: it’s
their own, they have the consent of the owner, or they have some privilege to, is still
liable.
o Ex: killing P pet who you believed was a wolf, Yappen believed it was his own
mine, liable if you think the person you touch is your friend, but it’s the wrong
person.
 Holmes’s reasoning: even when the D mistakenly commits an intentional tort, he still
causes the required legal injury and should be required to make the P whole. D is
expected to know what belongs to him.

Battery
An act that results in a harmful or offensive contact to the P’s person w/o the P’s consent.

R3d v. R2d: R2d less clear than R3d. Seems to require dual intent to (1) cause contact AND (2)
intend for that contact to be harmful, which is incorrect + doesn’t emphasize lack of
consent.

R3d §101 Elements

1. the actor intended to cause a contact with the person of the other or contact
occurred by transferred intent;
a. “Purpose OR Knowledge with near certainty that conduct will result in direct or
indirect contact w/ P, does not require intent to do harm like R2d seems to imply.
Lack of malicious intent is discussed in Almy and Vosburg.

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 2. the actor’s affirmative conduct caused the contact (doesn’t include nonfeasance like
failing to block an incoming object from hitting P UNLESS D omits action with the
purpose of causing harm – like not braking a self-driving car when you see you’re
going to hit someone);
a. Direct: physical touch to P’s person
b. Indirect: contact made between anything so closely connected with the P’s person
that intentional physical contact w/ it impedes P’s bodily dignity (extended
personality doctrine)
i. R3d: contact can be satisfied by hazardous or toxic substances that contact
P in an offensive way.
1. BUT SPLIT in courts on whether intangibles should count as you
will encounter intangibles (like cigarette smoke) in daily life BUT
only a successful argument when the substance is non-threatening
or contact isn’t purposeful.
ii. Also by D causing some tangible thing to come into contact w/ P
1. Garratt where D moved chair and cause P to come into contact w/
the ground.
3. the contact caused bodily harm or was offensive (even crying is evidence of that)
a. Harmful if it results in physical injury or bodily harm.
b. Offensive if it violates a reasonable person’s sense of dignity or violates social
conventions. (doesn’t include normal and expected societal interactions like a
bump on the train- implied consent to some contact by taking part in the situation)
4. the person contacted by the actor did not consent to the tortious conduct or the
resulting consequence.
a. Consent must be alleged and proved by the P
b. D must contest lack of consent through denial of P’s prima facie case rather than
as a defense to the claim (p.134)
Defenses: Self-defense, Necessity, Social Usages, Implied license to contact
Damages: at least nominal damages or actual damages. Punitive damages can be awarded if D
acted w/ malicious or reckless disregard of P’s rights. (p. 117). D is liable for all
consequences, even unforeseen “eggshell” injuries.
Extra sensitive Ps: Only if D knows and still acts intentionally.
R3d: a contact is offensive if:
a. The contact is offensive to a reasonable person’s sense of dignity; or
b. The contact is highly offensive to P’s unusually sensitive sense of dignity & the actor
knows the contact is highly offensive to P (makes an act tortious even though it
wouldn’t be offensive to an ordinary person)
i. Liability for (b) will not be imposed by courts if it would violate public policy or
requiring the actor to avoid the contact would be unduly burdensome.

Medical Cases – Implied by Law Consent

If Dr. goes beyond scope of patient consent, they may be liable for battery.

Kennedy Elements (used by most jurisdictions): Dr. can extend an operation:

1) to remedy conditions in the area of the original surgery;
2) when with the exercise of sound professional judgement, he;

9
 3) determines that correct surgical procedure requires extending the operation
originally contemplated; and
4) at the time, the P cannot give consent, and no one authorized to consent for them is
immediately available
Compare to Mohr and Ipock approaches.

R2d: A competent person has the right to refuse medical treatment. If a Dr. performs an
operation w/o consent he has committed a battery, even when the operation is performed
in good faith and for P’s benefit.
R3d: An actor who intentionally causes contact w/ the person of a patient in furtherance of
medical treatment is liable for battery if the actor fails to obtain the patient’s consent to
the nature, type, or extent of physical contact that the actor causes. Liability exists even if
actor mistakenly exceeds the scope of consent.
Kinkead Torts: The patient gets the final decision on whether or not to undergo and operation.
Consent must be given expressly or apparently. Dr. can operate to the extent of the
consent given and no more.
BUT in an emergency: where P is injured to the point of being unconscious and his injuries
require emergency surgery, Dr. is justified to use treatment reasonably necessary to
preserve life or limb and consent of the patient is implied. If in the course of that
operation Dr. discovers unanticipated conditions which, if not removed, endangers the
life or health of the patient Dr. is justified in extending the operation to resolve those
problems.
R3d: Emergency doctrine: If an actor engages in otherwise tortious conduct for the purpose
of preventing or reducing a risk to the life or health of another, the actor is not
liable, even if the other has not actually consented to the conduct, provided that:
1) The actor reasonably believes:
i. His or her conduct is necessary to prevent or reduce risk of life or health of the
other that greatly outweighs the other’s interest in avoiding the otherwise tortious
conduct; AND
ii. it is necessary to act immediately, before it’s practicable for the actor to obtain
actual consent or substituted consent, in order to prevent or reduce the risk to life
and health; AND
2) The actor has no reason to believe that the other would not have actually consented to
the conduct if the other had had the opportunity to do so.

Cases: Mohr, Kennedy, Ipock

Policy argument: Better to allow Dr to act based on implied consent as mitigates risks of
multiple major surgeries and lowers patient costs. A reasonable patient would agree to those
things.

Assault

R3d v. R2d: R2d doesn’t clearly reference lack of consent and uses “apprehension” instead of
“perception” which makes it seem that P has to fear the contact.

R3d §105 Elements: A D is liable for assault if:

10
 1) The actor has dual intent of causing the other to anticipate an imminent contact
with his person that is harmful or offensive OR intent is satisfied by transferred
intent;
a. Threatening to come over and beat P up or to go to another room and get a gun to
shoot P is not imminent
2) The actor’s affirmative conduct causes the other to anticipate an imminent, harmful
or offensive, contact w/ hi person; and
a. Perception is not negated just because P believes the contact can be avoided by
fleeing, defensive measures, or intervention of others.
b. Perception is negated if P -correctly or incorrectly- believes the means D is using
will not result in contact (P knows gun is unloaded)
3) The other does not consent to the actor’s conduct

Mere Words: if the words + the circumstances are enough to create a perception of an imminent
contact, no overt act is necessary.
Extra sensitive P:
 R2d §27: if an act is intended to put another in apprehension of imminent bodily contact
and succeeds in doing so, the actor is subject to liability even if the act would not have
put a person of average courage in apprehension.
 But that is protecting a mere extra sensitive P and courts are unlikely to hold D liable for
an exaggerated P response, unless D knew of the unreasonable fear and used it against P.
Cases: Kanye hypo, grabbing mic from Taylor, her being upset about him coming towards
her=assault

False Imprisonment/Wrongful Confinement

R3d v. R2d: R2d uses false imprisonment and doesn’t mention lack of consent.

R3d §107: D is liable for wrongful confinement if:

1) The actor intends to confine the other w/i a limited area OR transferred intent
applies;
a. Legal injury requires confinement within NOT exclusion from an area
2) The actor’s affirmative conduct causes a confinement of the other OR the actor
breaches a duty to release the other from such confinement.;
a. Forms of confinement: D can use physical barriers, threat of force, assertion of
legal authority, forms of duress, or other means.
b. Insufficient forms of confinement: not sufficient for a case if P only stays because
of moral pressure or future threats.
c. Breach of duty example: restaurant knows a child is locked in the bathroom but
doesn’t get them out.
3) The other is conscious of the confinement OR suffers bodily harm as a result of the
confinement; and
a. No harm no foul idea (Locked in classroom hypo)
4) The other does not consent to the confinement

Self-help: P must utilize reasonable means of escape which he is aware of.

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  R2d: (1) P does not have to risk harm to his person or chattels or subject himself to
substantial liability to a third person if there is a safe avenue of escape if the
circumstances of that escape would be offensive to a reasonable sense of decency or
personal dignity. (2) P does have to use safe avenue of escape if it poses only a slight
inconvenience or requires him to commit a technical trespass to chattel/land which
would result in nominal damages at most.
Length of Time: Doesn’t matter how brief the confinement is but length can effect damages
Class reference: discussion of officers taking two men miles out of town to a field.
Defenses: Shop keeper’s privilege, lawful arrest, custodial justification, consent
Damages: Nominal damages, actual damage for physical harms, and punitive damages are all
recoverable.

Trespass to Land
Protects land possessor’s interest in exclusive possession against tangible trespasses to land and
attached fixtures

P must own or have a right to possess the property (tenant)

R2d
1. D engages in conduct which results in a physical entry on land by some person,
animal, or other tangible thing
a. D enters land or causes a thing or person to enter land
b. D remains on land after his privilege to be there has expired
c. D fails to remove from the land a thing which he is under a duty to remove
2. D intended to cause a physical entry or remaining on the land
a. Doesn’t matter if there’s a mistake about ownership or consent.
3. D actually causes a physical entry or remaining on the land
4. D is legally responsible for the entry/remaining

 Doesn’t matter if there’s no harm done or even if the D improves the land, the entry is
the legal injury and is still met.
 Planes: Aircraft are only trespassing if they “enter the immediate reaches of the air
space above the land and interferes substantially w/ the P’s use and enjoyment of his
land.” Landowner is entitled to as much air space as he can occupy or use in connection
with the land. It doesn’t matter if he’s actually using it or not though. Federal law
preempts trespass damages where plane is flying about the minimum altitude
requirement.
 Permanent Fixtures: items which were once chattel but are now personally affixed to
real property are also considered real property (buildings and items affixed to the
buildings). Covered by trespass to land not trespass to chattel.
 Omission: Failure to remove from P’s land some animal of thing the D is responsible
for, after the license or privilege for it to be there has expired is sufficient conduct.
 Intangible v. Tangible: Intangible invasions are covered by private nuisance unless the
intangible invasion causes some physical damage.
 Remedies:

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 o If no actual harm= nominal for dignitary harms (and punitive if invasion was
knowingly wrongful and egregious see Jaques).
o If harm= actual and possible punitive.
 Defenses: Consent (D bears burden of proving consent as an affirmative defense),
Necessity (in order to prevent injury substantially more serious than the invasion or
interference itself)
o Mistake: even if D reasonable but mistakenly believed ownership or consent
allowed him to enter the land, he still has met the requisite intent to enter or
remain on the land and mistake is not a defense. (See Yappen)
 Policy: Why does land get more protection than people?
o Timing: touching person is over quickly, trespass to land can occur for long
periods
o Land rights: defeats the purpose if people can just come and go
 There’s incentive to protect your rights to exclude to avoid losing
control of the land
o Easier not to trespass than it is to not accidentally bump into someone
 Owner of property w/o possession or a right to immediate possession = an owner w/
only a future interest in the land, can bring a property action for waste

Cases: Jaques, Yappen

Trespass to Chattel
Chattel: item of personal movable property
P must own or have a right to use the property

Intel uses R2d §217: Trespass to chattel occurs whenever a D intentionally dispossess
another of a chattel or uses or intermeddles with a chattel in the possession of another.
1. D is engaged in conduct intended to cause a dispossession, use of, or intermeddling
with P’s personal property
a. Dispossession: theft- actor intends to take control of the item as if it is his own
property
i. trivial removal of a chattel from one position to another w/o intention to
exercise further control of it or to deprive the owner of its use is not a
dispossession (R2d §218)
b. Intermeddling means intentionally bringing about a direct or indirect physical
contact with the chattel (R2d §217 comment e). Impairment to the physical
condition reduces the value of it to the possessor beyond mere affront to dignity
as the possessor.
i. Trespass can still be actionable, even though the physical condition hasn’t
been impaired, IF value is impaired by using the chattel in a certain
manner. Examples:
1. Using another’s toothbrush may lead a person of ordinary
sensibilities to regard the article as utterly incapable of further use
2. Using someone’s underwear may destroy its value to the owner.
c. Chattel: personal meaningful property
i. Common Law: tangible items

13
 ii. Modern Law: includes intangibles like intellectual property and
copyrighted property
2. D is the actual cause of such injury
3. D is the attributably responsible for the injury (p. 176)

 Defenses: consent, necessity

 Remedies:
a. D is liable for any resulting loss w/i D’s legal responsibility IF
 There is a significant interference with the intentionally affected personal
property
 Dispossession, deprivation of use for a substantial time, impairment
of quality/condition/value, or improper use of private servers/internet
(Intel); OR
 Bodily harm is caused to the person of the possessor or to a person, land, or
separate chattel in which the possessor of the affected property has a legally
protected interest. (but most courts would just cover this w/ transferred
intent)
b. Liable for nominal damages only if there is a dispossession w/o actual harm
c. Injunction: only if there is significant interreference (p. 187)
 Wright argues it should be inclusive of repetitive insignificant trespasses.
d. In technical but not actionable trespass to chattel, self-help is only remedy (Intel)
 R2d: privilege to use force to protect possessions against harmless
interferences is adequate legal protection of possessor’s interest in mere
inviolability of his chattel. BUT seems like self-help will not always be
enough, may be a growing area of tort law.
D is treated as an insurer for any harm done to intentionally misappropriated property or persons
Ex: D is liable for damage done to a car he has intentionally stolen no matter how
indirect, accidental, or unforeseeable the damage is.
Owner of a chattel w/o possession or a right to immediate possession = an owner w/ only a
future interest in the chattel can still bring a trespass to chattel action

Cases: Intel
 Technical trespass but not actionable, only remedy is self-help

Conversion
A serious trespass to chattel, ask “would it be fair to make the D purchase the chattel?”

R2d §222A: Conversion is an intentional exercise of dominion and control over a chattel which
so seriously interferes w/ the right of another to control it, that the actor may be required to pay
the other the full value of the chattel”

1. D is engaged in conduct intended to cause a trespass to chattel;

2. The D actually does cause such a trespass; and
3. The interference was sufficiently serious to make the D liable for the full value of the
property (p. 177)

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  Some examples
a. Occurs w/ theft (intentionally taking property w/o the intent to return it)
b. Can also occur w/o dispossession if damage/interference is so substantial that it
seriously diminishes the owner’s dominion over it.
c. Can occur w/ intangible items like domain names for websites (p. 187)
 R2d: requires it be merged with or represented by a document necessary for
the exercise of the property right.
 CA law does not
 Remedies: Can require D to pay for any reductions in value or loss of use and to purchase
the chattel at the full pre-conversion value rather than being limited to physical return of
the chattel (replevin) like in trespass to chattel
 Purchaser of stolen chattel: may become a converter
 Accidental Conversion: not conversion if the actor was using the chattel w/ permission
when the accident occurred but may still be liable for negligence.
 Owner of a chattel w/o possession or a right to immediate possession = an owner w/ only a
future interest in the chattel can still bring a conversion action
 Defenses: Necessity, Consent

When does Trespass to Chattel Become Conversion?

Depends on how serious the trespass is. Consider these factors:
a. Duration and extent of the interference;
b. D’s intent to assert a right inconsistent with the rightful possessor;
c. D’s good faith;
d. Expense or inconvenience to the P; and
e. Extent of the harm to the chattel

Defenses for Intentional Torts

Must be pleaded an proved by D against a valid prima facie case, these do not refer to arguments
that P lacks an element of their case.
Consent:
 Negates D’s liability whether or not D knows P consented to the conduct at issue in
trespass to land, trespass to chattel, and conversion claims.
 NOT a defense for Battery, Assault, or False Imprisonment; as in those torts, lack of
consent is part of the prima facie case R2d §10, R3d §111).
 Validity of P consent:
o a person must be of sound mind and body to give consent
o Lack of capacity from youth, intoxication, or incompetence may undermine
consent
o Consent given by mistake or as a result of fraud (re. an essential matter) or duress
(threat of present action is included, not future action) is not a valid defense.
 P can consent to criminal acts and that will negate a tort action, unless the conduct was
made criminal to protect people like the P from the activity made criminal
o Ex: fight promoter is liable for battery to injured fighter who suffers injuries
during an unlicensed and unsafe fight but the fighter who caused the injuries is
not)

15
1. Actual Consent
a. P was subjectively aware of the particular intended consequence;
b. P knowingly proceeded to expose themselves to the conduct intended to bring
that consequence about; and
c. P freely and voluntarily assented to D attempting to cause the consequence (3
elements from p. 137):
i. Physical coercion by D doesn’t count even though P does actually hand agree
to whateve is happening (ex: money or your life)
ii. Doesn’t count if given because of fraude: intentional misrepresentation or
failure to disclose facts
Can be written, oral, or implied by conduct or circumstances
Cases: Yappen, McGuire

2. Apparent Consent: easier to prove than actual consent, lack of it is harder for P to prove
a. R3d: “an actor is not liable to another if a reasonable person in the position of the
actor would believe that the other actually consented to the actor’s otherwise tortious
conduct”
b. Exists if the D reasonably inferred the P’s actual consent from P’s words or conduct
at the time, even if others (but not the D) were aware at the time that the P lacked
actual consent. (p. 143)
c. Can come from circumstances of the act, implied acts or words, prior conduct
between the parties, custom, whether a reasonable person would believe the P
consented.
d. Ex: football players rely on P’s apparent consent to being tackled based on P’s
participation in the game- even if P is unaware tackling is part of the game and you
wouldn’t have participated if you had known.
Case: Lufthansa

3. Consent Implied by Law: exists when there is no actual or apparent consent

a. P is unable to consent;
b. Immediate action is necessary to save P’s life or health;
c. There is no indication P wouldn’t consent if able; and
d. A reasonable person would consent in the circumstances

Medical cases
i. Substituted consent can be given by guardians, spouses, and others w/
appropriate authorization for those incapable of giving it themselves (children,
mentally ill, or in emergencies only- for normal adults who are temporarily
incapacitated.
ii. Where patient is incapable of consenting, treatment is usually privileged
iii. If patient is competent and conscious they can refuse treatment no matter how
necessary
Cases: Mohr, Kennedy, Ipock

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Social Usages
 If P is aware of an intended physical contact that’s in accord w/ a common social usage,
his failure to object may reasonably be interpreted by D as actual consent to such contact
and may at least constitute apparent consent.
 If P is unaware of the intended contact and has not previously given consent to all such
contacts, there is not actual or apparent consent. There may be implied consent in the
absence of objection by the P.
 Even in normal social usages, P can recover for reckless disregard of safety
 What is a normal social usage between friends may be different between strangers.
 Likely doesn’t apply if D KNOWS P is ultrasensitive to the contact and does it anyways.

Shopkeeper’s Privilege
 In defense to false imprisonment, shopkeepers have the privilege to detain someone
suspected of shoplifting for investigation IF:
1) There is a reasonable belief that the theft occurred;
2) The detention is conducted in a reasonable manner using only nondeadly force;
and
3) The detention is only for a reasonable amount of time and only for the purpose
of investigating the theft.
Self Defense/Duty to Retreat
a. Threat must be an actual or threatened imminent or ongoing unprivileged physical
interference by the P or the P’s property w/ the person of the D.
 Cannot be a mere retaliation from some past interference or a defense against
someone or something other than the P or P’s property
b. D must use only reasonable and necessary action in light of the consequences being
defended against
 Nondeadly force: Can be used against P aggression w/o any obligation to retreat
or give up some right or privilege UNLESS you are the initial aggressor OR you
know the person only unintentionally or negligently trespassed
i. Force must still be reasonable and necessary in light of P’s force
ii. Threat to use deadly force w/o actually using it is nondeadly force unless
it creates an unreasonable risk of causing death or SBH or is otherwise
excessive in light of the circumstances.
1. BUT doing this where actual use of deadly force would be
unjustified is risky as initial aggressor would then be justified in
using equal force in self-defense
 Deadly force may only be used when necessary for D to defend themselves
against imminent death, SBH, or ravishment (rape, sodomy). (question of duty to
retreat only comes into play when there’s a safe avenue of escape)
i. Restatement’s “civilized view”- duty to retreat
1. If D can avoid using deadly force by taking a clearly safe avenue
of escape, D must do so
ii. Castle Doctrine (recognized in most jurisdictions)
1. No duty to retreat in your home/business/sometimes even other
places where you are staying

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 2. Can use deadly force if reasonable and necessary and all other
elements of self defense are met.
iii. “Frontier view”/Stand Your Ground (23-25 states) – no duty to retreat
1. In response to a deadly attack or threat of a deadly attack, D may
stand their ground and use deadly force without any obligation to
retreat.
 D becomes an aggressor if he uses:
i. Force in retaliation rather than defense; or
ii. Uses excessive force
iii. P will be justified in defense against D’s unjustified aggression if and only
if there is no safe avenue of retreat (but P is still liable for their own initial
aggression)
c. Privilege of self-defense exists and there’s no duty to retreat even if interference by the P
w/ the D is known by the D to be unintentional and due to negligence when there is no
safe avenue of escape
 IF D knows P conduct is due merely to negligence, D must take a safe avenue of
retreat or relinquish a right or privilege is available even before using nondeadly
force.
 Restatement takes no side on D defending himself against P he knows to be
entirely innocent (nonintentional or nonnegligent)

Defense of Others

Same as Defense of Self except: Mistake

Privilege of Mistaken Belief of P’s Aggression

Mistaken Self Defense

 In most jurisdictions: mistaken self-defense may be a complete defense to liability for
intentional torts, if D mistakenly but reasonable believed they were under attack & this is
proved by a preponderance of the evidence.
o Courvoisier- didn’t have his glasses and believed approaching officer was one of
the poele trying to break into his jewelry store/home
o Mistake must stem from a reasonable beliefe of aggression
 BUT minority of jurisdictions absolve the D of liability for actual damages only if the P
intentionally or negligently caused the D’s mistake.
o Deals w/ policy argument of unjustly leaving an innocent injured party
uncompensated
 In all jurisdictions, the person believed to be attacking the D may use necessary and
reasonable force against the D in self-defense, even if he knows the D is acting under a
mistaken belief, unless he intentionally or negligently cause the D’s mistaken belief (R2d
§72)
 Policy reason: not allowing this may deter people from defending themselves

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Mistaken Defense of Others
 Most jurisdictions: D who comes to the defense of a third person she reasonably but
mistakenly believes is being unjustifiably attacked by the P has at best a qualified
privilege not a complete defense.
o Liable for any actual harm to the P
o Not liable at all if P intentionally or negligently caused her mistake
 Restatement and minority of jurisdictions: complete privilege for reasonable mistake
 Policy arguments: may deter people if they know anyone can step i

Mistaken Defense of Property

 D who assaults/batters a P because of a reasonable but mistaken belief that P was
committing or about to commit a trespass again their real or personal property is liable
for at least actual damages IF P had the privilege to enter, remain on, take, or use the
property unless the P intentionally or negligently cause the D’s mistaken belief (R2d)
 IF P did not have such privilege, but was not actually committing or about to commit a
trespass, SPLIT OF AUTHORITY
o D is probably more likely to be held liable if she was reasonably but mistakenly
defending a third person’s property than if she was defending her own.
Mistaken Recapture of Property
 Because in this case, D is reinitiating the use or threat of force in an attempt to recapture
taken property, the D is liable for any mistake, no matter how reasonable, unless the P
knowingly caused the D’s mistake (R2d)

Private Necessity
 This defense applies in emergencies when neither the P nor the P’s property is the source
of the current danger.
 D may use/enter on/damage the property of another’s to save their own lives or more
valuable property.
o Applies only to property damage
o Restatements leaves open a qualified privilege to inflict insubstantial personal
injury to an innocent person so avoid one’s own or a third party’s death or
substantially greater bodily harm (p. 207)
o No privilege to inflict SBH to an innocent person to avoid one own’s death or
death to others
 Rule: A party who damages the property of another while acting out of private necessity
must compensate the property owner for the resulting damage. (Lake Erie)
 Qualified privilege (cannot get nominal or punitive damages but can get actual
damages). Type of strict liability as D has to pay even though the trespass was
reasonable and justified.
o P cannot use self-help to exclude the D from their land and cannot seek nominal
or punitive damages but CAN recover actual damages
Public Necessity
 This defense applies in an emergency when neither the P nor the P’s property is the
source of the current danger but still the P’s property must be invaded or destroyed to
protect a large number of people from public calamities like

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 a. Spreading of a fire, spreading of disease, advance of a hostile military force
 Complete defense as long as D acted reasonably.
a. Defense lasts only as long as the emergency
b. Available to private citizens or public officials
 BUT in some states D is still liable for actual damages
 Policy argument: Utilitarian based. Making it a complete defense avoids discouraging
private citizens and public officials from acting justifiably to protect the public greater
good
a. BUT may be better to make the offense actionable against the government or
allowing a restitution case against the government, similar to the general average
contribution admiralty rule.
 In most cases where P went uncompensated it was because:
a. the P’s property would have been destroyed anyways; or
b. was itself a source of danger to others person or property

Immunities

Sovereign Immunity
 Government immunity: government is typically immune from tort liability except where
it consents to suit
o Heavily criticized and is limited in every jurisdiction by legislation or courts
o Limit on the scope of immunity: if governmental conduct violates some
constitutionally guaranteed right, like the right not to have property taken w/o just
compensation or to not be deprived of life or liberty w/o due process, an action
can be maintained against the official involved rather than the government itself

Charitable Immunity
 Charities were originally immune from tort liability, but this has been abolished in all but
a few jurisdictions where the charities are still liable up to the extent of their liability
insurance.

Parent-Child Immunity
 Minor children can sue and be sued (See Vosburg)
 Tort suits between parents and minor children were allowed for injury or interference to
property (also to person under the early common law)
 End of 19th century: minor children could not sue their parent for personal injury, even if
intentionally inflicted and vice versa
o Policy argument: want to protect parent’s right to discipline and parental
discretion in providing necessities like food, shelter, clothing, education, and
medical treatment.
o Immunity doesn’t extend to siblings
 Has also been abolished in whole or part by most jurisdictions, especially for
intentionally inflicted injuries

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 o BUT courts and legislatures are still careful not to intrude on the reasonable
exercise of parental authority to discipline or parental discretion to provide
necessities.

Spousal Immunity
 Has now been abolished in whole or part in most jurisdictions
 Previously, spouses could not file tort suits against each other. Based on common law
idea that marriage merged husband and wife into a single legal entity under the control of
the husband.
 Started to unravel w/ Married Woman’s Property Acts which recognized married
women’s separate legal identity
o But courts usually held this allowed tort actions for injuries to property between
spouses, not injury to person out of fear of: (1) fraudulent collusion to collect
insurance; and (2) concern that litigation would disrupt the peace and harmony of
the family.

Defense of Property

Complete defense: D has privilege to trespass on another’s person or property when

necessary to defend against and actual or threatened, imminent or ongoing; unprivileged
physical interference by that person or property; w/ his own personal or real property OR
a third person’s; and the means employed are necessary and reasonable.
 R2d: extends defense to property of a third person only if the third person is a member
of the actor’s immediate family or household or a person whose possession of property
the actor is under a legal duty to protect. Doesn’t say whether or not it should extend to
people outside of those categories.
 Can only be used to defend against threats by the P or P’s property to D’s property and
only to defend against an actual or threatened imminent or ongoing physical interference
with one’s property.
 Cannot be used as a defense when D acts in retaliation for past interferences w/ his
property or to attempt to recover possession of property after it has been wrongfully
taken.
Use of Force
 Prior to use of ANY force, D must first request person interfering to “cease and desist”
and give the person opportunity to do so, unless the D reasonable believes the request
will be useless or that substantial harm will be done before they can make the request
(R2d)
 Prior to use of more vigorous force, D must first “lay hands in gently” subject to same
qualifications as above bullet point.
 Excessive or unjustified use of force in defense of property entitles the person against
whom the force is used to employ necessary and reasonable force in self-defense.
 Deadly force may not be used in mere defense of property (Katko) UNLESS
o the D reasonably believes that the intruder upon his real property, unless expelled
or excluded, is likely to cause death or SBH (relaxation of self-defense
“imminent/ongoing” threat requirement)

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 o to prevent more serious felonies which involve some risk of deadly force (armed
robbery, burglary, kidnappings, arson)
o in a jurisdiction which allows a person to use deadly force against a trespasser
unlawfully and forcefully entering their occupied home or vehicle even if the
trespasser isn’t using deadly force
o threat to use deadly force is justified but risky as in defense of person

Recapture of Chattels
 Privilege to use reasonable and necessary nondeadly force to recapture chattels which D
was recently wrongfully dispossessed through force or fraud by the P IF
a. attempt to recapture occurs immediately after the chattel was taken; OR
b. in the course of a fresh pursuit that began immediately after it was taken and after
a demand (if feasible and reasonable) for its return to be made

Recapture of Land
Use of force/self-help to retake land instead of using the judicial process is generally prohibited
or severely restricted.

Privilege of Arrest

Use of deadly force to apprehend criminal suspects

 4th Amendment prohibits, as unreasonable seizure of a person unless, state
authorization to use deadly force to prevent the escape of a suspected felon unless it
is:
a. Necessary to prevent the escape;
b. A warning if feasible has been given; and
c. The officer or authorized person has probable cause to believe that the
suspect poses a significant threat of death or serious bodily harm to the office
or others
 TL of being able to use deadly force on escaping felons is now inappropriate because:
a. Felonies have been expanded beyond just the worst of the worst crimes
b. Technology and weaponry of the common law was much more limited, deadly
force could be inflicted almost solely with hand-to-hand combat. Today officers
can use deadly force while at a distance and not at risk
c. No or minimal penalties are imposed for attempts to flee arrest. Allowing deadly
force is equivalent to capital punishment w/o a trial.
d. Use of deadly force against nonviolent suspects is not shown to increase arrests,
deter crimes, or enhance protection of police or citizens. Deadly force may only
be used to prevent death or SBH.
e. Balancing societal interest in effective law enforcement with the individual
suspect’s interest in bodily security, use of deadly force is an unreasonable and
unconstitutional seizure.

Mistaken Arrest- Officers/Citizens

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  Officer who uses reasonable force to arrest someone under a reasonable good faith,
although mistaken, belief that the person has committed a crime, will not be liable for
battery, assault, false arrest, or false imprisonment.
 BUT a private citizen generally will be liable for a mistaken arrest, despite it being a
reasonable good faith mistake.

Contributory Neg, in Intentional Torts

 Partial defense available in some jurisdictions but is rarely applied
 More likely available when D acted with knowledge-based intent not purpose
 R3d: takes no positions on whether this should be available in comparative responsibility
jurisdictions but the comments seem to favor it being available except where P had “no
duty to take care”
o Amendment to remove this failed by a narrow vote

Other Justification
Lufthansa: even if P did have a valid prima facie case for battery or false imprisonment and
airline lacked her consent, the airline was justified in using its authority to deal with the
bomb threat which threatened lives and property of the other passengers, the employees,
and the airline’s property.

IIED

D is liable if he intentionally or recklessly acts w/ extreme or outrageous conduct that

causes the P severe emotional distress. Elements:
a. D’s conduct was intentional or reckless;
 Intentional: wants to cause severe ED or knows with near certainty it will occur
 Reckless: deliberate disregard of a high degree of probability that the emotional
distress will follow
b. Conduct was extreme and outrageous;
 Exceeds the possible limits of human decency, intolerable in a civilized society.
 Does not cover mere insults, threats, annoyances, petty oppressions or
indignities.
 Can arise from a peculiar susceptibility of the P which D is aware of
 Aggravating factors”
i. The D is in a position of authority or influence over P (police office, ER,
school official)
ii. The P is a member of a group known to have heightened sensitivity
(young children, pregnant women, elderly)
c. Conduct caused the P’s emotional distress
 Issue w/ Harris: P already had the same symptoms which he claimed were
caused by the D
d. Distress was severe (Harris elements)
 P must prove severe emotional distress beyond what a reasonable person could
endure. D’s conduct itself often is evidence of this.
 Factors: duration and intensity

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  If P is hypersensitive, D is not liable unless D knew about the hypersensitivity

 Third parties- D is liable if his conduct towards his victim intentionally or recklessly
causes severe emotional distress to:
o A member of the victim’s immediate family present at the time of the D’s conduct
(and D is aware of their presence) whether or not distress results in bodily injury;
or
o Any other bystander present at the time of the conduct (and D is aware of their
presence), if the distress does result in bodily injury.
 Unlike other torts, it requires damage as part of the prima facie case- courts want to
toughen mental psyche to exist in modern society. This is a last resort claim and is often
just added on to larger claims.
 Issues w/ IIED claims
o Distinguishing false from true claims
o Distinguishing minor annoyances from severe wrongs
 Cases: Harris

Defamation
1. D publishes
a. If P is a public official (gov.) or public figure: P must prove D published with
actual malice
i. (knew statements were false or acted with reckless disregard of their
truth). To establish recklessness, P must establish D had serious doubts
about the truthfulness of their statements
b. If P is a private individual, P must prove negligence or actual malice
i. matter of public concern negligence or actual malice
ii. matter not of public concern: negligence
2. False and defamatory statements of fact or implied assertions of fact of and
concerning the P
a. First Amendment analysis requires the statements be “of and concerning the P.”
i. P does not have to be specifically named, statement must simply identify
the P or their identity must be reasonably identifiable by the audience (1
person=audience) the statements are made to
ii. R2d: defamatory communication is made when a recipient of it correctly,
or mistakenly but reasonably, understands who it was intended to refer to.
iii. OR to a substantial and respectable group (even if small)
b. Saying “my opinion is__” doesn’t relieve you if someone would believe what
you’ve said is a fact
c. Mixing in defamatory statements with true ones does not insulate D from liability
d. Assertion of fact: would a reasonable person think that what’s being said is more
than an opinion? Who the statement comes from can effect this analysis (See
Weinstein hypo)
3. Unprivileged publication to a third party (republication also puts person on the
hook)
a. Complete privilege: public trial/hearing
b. Qualified privilege: job reference or common interest

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 4. Special damages or per se defamatory
a. Special damages: economic harm, damaged reputation has led to loss of business,
loss of employment
b. Per se defamatory: accused of criminal activity, dishonest in business
(cheat/fraud), accused of having a stigmatized disease, a woman’s lack of chastity

Court must first determine: if a communication is capable of a particular meaning and if that
meaning is defamatory (part of prima facie case)
Jury must determine: whether a communication, capable of a defamatory meaning, was
actually understood as such by its recipient
Beef Products
o R2d: Defamation and Disparagement can be overlapping especially when discussing a
P’s business or product
o Defamation: statements which imply the P is dishonest, or lacking integrity, or is
committing fraud upon the public by selling something he knows is defective
o Disparagement: statements that reflect merely on quality of a product or
character of a business
o Defamation=
o Libel: defamation by words written, printed, or recorded in permanent form
 TV and radio
 Email or other e-communication
o Slander: defamation by spoken word, gesture, or any form other than libel. P
must establish special damages or slander per se.
Anagnost
o Language is defamatory if it lowers the P’s esteem in any substantial and respectable
group- even a small group
o Defamatory meaning must be attributable to the words by hearers of common and
reasonable understanding

Defenses: D bears burden of showing valid privilege or that P is a public figure. P would then
have to show and abuse of privilege
o Truth is an absolute defense
o Consent is a defense as long as D didn’t exceed the scope of consent
o If P is a private figure/matter is of public concern: presumed and punitive damages
cannot be awarded unless actual malice is established
o Statements with absolute privilege are those:
o Made in judicial proceedings related to such proceedings, made in legislative
proceedings, between husband and wife, and required publications by
radio/TV/news (statements by political figured which the station cannot censor)
o Statements w/ qualified privilege are those:
o Where D is defending his reputation
o Made in the interest of the recipient or a third party;
o Affecting an important public interest
Abuse of privilege: making statements outside the scope of consent or w/ actual malice
(knowing of falsity or reckless disregard for falsity)

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Remedies: actual damages, punitive damages, presumed damages (damages for loss of
reputation w/o needing to prove actual monetary harm)
o If P is a private figure/matter is not of public concern: presumed and punitive damages
can be awarded even if P doesn’t establish actual malice.

Cases: Beef Products, Anagnost, Weinstein hypo

NEGLIGENCE

Governs liability for all unintentional injuries, regardless of the type of injury. D is only liable if
the unintentional injury is caused by his negligence.
(can strategically make a knowledge based intentional tort a negligence claim See Garratt)
1. Duty of the D
a. Is there a duty?
b. What’s the required standard of care?
2. D breached that duty of care: A D’s conduct is negligent if and only his conduct was
unreasonable in light of the risks that were foreseeable at the time of the conduct, given
the particular circumstances of which she was aware or should have been aware of at the
time. (See Wells Fargo)
a. Look at D’s conduct compared to what the standard of care required
b. What did D know our should have known?
c. What risks did D’s action pose?
d. Was D’s conduct unreasonable in light of those foreseeable risks?
i. Objectively, what would an ordinary person foreseeably effected by those
possible risks have viewed as acceptable?
3. D’s breach was a factual cause of P’s injury
a. But for, NESS, multiple sufficient independent causes
4. D’s breach was the proximate cause of P’s injury
5. Actual damage to P’s person or property
a. Legal injury requires actual harm to the P’s person or property
b. No liability for negligently caused pure emotional distress or pure economic loss
unless it results from physical injury to P’s person or property

Remedies: Damages, Injunction can be awarded for a threat of imminent and substantial actual
harm

Doctrine of agency: employer is civilly liable for the negligence of his employees committed in
the course of their employment and resulting to injuries of third parties

Negligent conduct: D’s conduct creates an unreasonable foreseeable risk of injury to others,
which P must prove. Or where P’s conduct creates an unreasonable risk of injury to themselves.
Applies to unintentional injuries
o Arose from a gap in strict liability which could be avoided if D could prove the injury
was unavoidable or inevitable (would happen even with reasonable care)
o Deterrence: prevents a type of conduct

26
 o Justice: punishes for lack of care
o Utility: recognizes lack of care which results in an accident is worse than a completely
innocent accident. Risk v. Benefit analysis (adopted by R3d)

Risk to others v. Risk to self

Qualititative difference/Dual justice approach- risk to self should be treated more leniently than
risks to third parties
 Criticism: risk to self may unintentionally pose a risk to others
 Lee thinks this argument when risk is 100% only a risk to the P

R3d: A D cannot be negligent unless his conduct imposes risk on some third part and a P cannot
be contributorily negligent unless the P’s own conduct subjects himself to a risk of injury.
Conduct which imposes risk on others can be valued differently than conduct that imposes risks
only on the P.

Rossman
 Contributory negligence is more lenient of a standard on the P than negligence is on the
D.
 Creating risk to self is different than creating risk to others. More forgiving to put
yourself at risk
o Counterargument: even if you only intend to put yourself at risk, you could
unintentionally expose others.
Vaughan
 D was repeatedly warned about dangerous hay stacking
 A person has a legal duty to use his or her property with the same level of ordinary care
that would be exercised by a reasonable person. This is an objective standard that does
not take into consideration the actual level of care exercised by a person. This rule is
better than a different rule that requires every person to use the strictest level of care of
which he is capable. An objective standard may be more easily applied and offers a wider
range of protection for victims. 

1. Duty

a. Is there a duty?
Palsgraf Majority (Cardozo) and Minority (Andrews)

Cardozo: Analyzes an unforeseeable P under the Duty element with “zone of foreseeable
danger” (leaves it to judge to decide), D only owes a duty to foreseeable plaintiffs w/i the
zone of danger and likely foreseeable consequences (wouldn’t include the expolosion)
 Danger invites rescue, anyone who enters the zone of danger is owed the same
duty as the plaintiff
 Rejected by R3d, says it’s a proximate cause issue.
Andrews: Says when D can foresee harm to anyone as a result of his conduct, he owes a duty of
reasonable care to everyone so D has a duty to P. Foreseeability of the specific P being
injured should be analyzed under proximate cause (allows a jury to decide) If D can

27
 foresee harm to anyone, D owes a duty of reasonable care to the public and is liable for
any P’s directly harmed by the consequences his actions. ( duty to keep area safe but then
at proximate cause, explosion likely would have been a superseding cause)
 Duty is owed to everyone so rescuers get the same standard of care
 Harm follow the risk
Most states use the general duty of care, others use the duty only to foreseeable plaintiffs.

Policy reasons: Cardozo likely wanted to avoid P’s getting sympathetic jury verdicts while
Andrews was more trusting that a jury would properly be able to distinguish which P’s were
entitled to awards and which were not.

Misfeasance: Created or contributed to the risk, you have a generally duty exercise reasonable
care in light of the foreseeable risks

Nonfeasance: Failure to act or avert or reduce some risk to which the P is subject but that was
not created or worsened by the D

No duty to rescue unless:

1. Landowner/Occupier
a. Knows person is in peril (Gladon)
i. R3d: occupier of land has duty of reasonable care to aid a person in peril
on their property even if the peril was not caused by a condition on the
premises. For trespassers, duty to aid if they are imperiled and helpless or
unable to help themselves.
b. Commercial business open to the public (Soldano)
2. Voluntary undertaking
a. Some Good Samaritan laws protect people who voluntarily undertake a rescue so
long as they aren’t grossly negligent and make things worse
b. You can abandon a voluntary undertaking as long as you haven’t made the person
worse off and they are not relying on you
c. R2d § 323. Negligent Performance of Undertaking to Render Services: One
who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other's person or
things, is subject to liability to the other for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm,
OR
(b) the harm is suffered because of the other's reliance upon the
undertaking.
d. R2d § 324A. Liability to Third Person for Negligent Performance of
Undertaking :One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the protection of a
third person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if:

28
 (a) his failure to exercise reasonable care increases the risk of such
harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.
e. R3d: A defendant’s initial nonobligatory undertaking to aid another becomes
misfeasance when there is foreseeable, reasonable and detrimental reliance on the
continuation of the undertaking by the plaintiff or a third party
i. Not foreseeable reliance if D announces abandonment of the undertaking

3. Special relationship
a. Coadventurers (Farwell)
b. Parent  child
c. Carrier  passenger
i. Highest standard of care, could be liable for even slight negligence
d. Innkeeper  guest
i. Highest standard of care, could be liable for even slight negligence
e. Employer  employee
f. Teacher  student
g. Dr or hospital  patient
i. Tarasoff extends Dr’s duty to 3rd part victims
h. Prison/inmate
i. (friendship alone is not a special relationship)

Common Law: no duty at all w/ nonfeasance in the U.S. (except in some states by statute)
 Wouldn’t have to assist someone you see is in peril (autonomy/free will)
 Creates a moral problem (See Yania)
 Only have a duty to rescue if there is a statute in place
 Doctors/first responders have no duty to assist while coming across situations off
duty

Informed Consent
Specialized duty of care owed by Dr to patients. To establish that Dr. had a duty to disclose:
1. The item to be disclosed must have been one a reasonable person would want to
know; AND
2. Causal connection must be established by showing that an objective prudent
person would have decided, if suitable informed, against the treatment/procedure
 Some states us a subjective view of this
 Objective one is very hard to meet- may only work for P if risk is
extremely high

Emergency Vehicle Operations

29
Tailored standard of reasonable care because they can forego traffic laws. Must use sirens, stop
near intersections, take reasonable precautions etc.

b. If so, what standard of care did D owe the P?

General Standard of care: Level of care a reasonable person of ordinary sensibilities under like
circumstances would have used

R3d: D has the responsibility of raising the issue of whether a no-duty or tailored duty of care
applies:

Children: most states use a bifurcated approach:

 engaged in child activities: owes duty to exercise the care of a reasonable child
of similar age, intelligence, and experience would under like circumstances
o Argument for: brains have not developed fully
o R2d: subjective perspective is commonly applied to children of tender
years” (6 years or less)
 Wide basis of community experience available to determine what
is to be expected of them
 Charbonneau: unless infants are denies coexistence with their
elders until they have matured, there must be a compromise which
permits children to act as children during their development.
 engaged in adult activities: regular standard of care as an adult
o Argument for: deterrence, having adult repercussions forces them to reach
level of experience expected to interact in society as an adult
 Ex: teens and adults take the same license test to drive and should
be held to the same standard
 Daniels: adult activities pose a greater risk to 3rd parties than child
activities
 Minority of jurisdictions: children under 7 cannot be negligent as either a P or a D
and create a rebuttable presumption that children 7-4 are incapable of negligence.
 Not necessarily a lower standard of care. Ex: teens may have better reflexes/speed
than adults

Superior Knowledge/Skill: Reasonable person of ordinary sensibilities under similar

circumstances. The actor's superior knowledge is one of the circumstances that a
reasonable person would take into account or by saying that a reasonable person will use
all the knowledge he actually has in dealing with a recognizable risk (Dakter)
 Superior Knowledge Rule: If an actor has superior knowledge, he is required to
use it as a person of ordinary prudence would employ all their knowledge when
assessing a risk. NOT a higher standard of care, just tailored. Don’t have to be in
a trade/profession to have this.
 Profession/Trade Principle: Applied when a trade requires special
learning/aptitude training, not just in highly specialized fields.
o Superior knowledge applies within this. One who renders services in the
practice of a trade or profession is required to exercise the skill and

30
 knowledge normally possessed by members of that profession or trade in
good standing in similar communities. Actor w/i a profession or trade with
superior knowledge compared to others, must employ that special
knowledge to meet the ordinary standard of care.
o Ex: physician w/ superior knowledge to other physicians must use their
superior knowledge
 Suggested limitation: Actor must be engaged in the profession or trade and have
possessed the special knowledge or skill required (Dakter concurring opinion)
 Defenses: lack of formal training, skill/trade isn’t relevant to the accident
 But see Jackson: special knowledge/skill must be used whenever P suggests that it
applies to the situation
 Superior knowledge is more broad than profession/trade

Mental incapacity: held to the general reasonable person standard of ordinary sensibilities as
long as there is volitional conduct R2d § 283 (Mochen)
 Argument against: Discriminatory against people with mental illness who may be
incapable of reaching the ordinary person standard
 Argument for: too easy to feign a mental incapacity, too hard to draw the line
between mental incapacity and mere temperament or intellect deficiencies, if they
are going to live in the world they must be held responsible for the damages they
do, making them liable will encourage caregivers to look after them and prevent
them from doing harm.
 BUT can be taken into account when determining contributory negligence
(Mochen)
o R2d: doesn’t take into account P’s mental illness if it is less than insanity
but doesn’t say what to do with an insane P
o R3d: will not take P’s mental illness into account at all
 Breunig exception: not negligent if D had no forewarning of the mental illness
o Forewarning is easily shown when D goes in and out of lucidity
o Court analogizes it to a sudden onset of a physical incapacity
o Ct says it’s unjust to hold a man liable for conduct which he is incapable
of avoiding and which incapability was unknown to him prior to the
accident
 Foreseeability issue

Physical incapacity: reasonable (blind/deaf/paralyzed etc) person of ordinary sensibilities under

like circumstances (Roberts)
 Not a lower standard of care, just a variation on the reasonable person standard-
disabled person may have to exercise more care than an abled person would in
certain circumstances (R2d §283)
 Still a semi-objective standard, takes into account the disability but holds the D to
the standard of the average person with that disability
 Some argue for a subjective standard when analyzing a physically disabled
person’s contributory negligence

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Custom/Industry practice:
 Failure to comply may be evidence of negligence
 But complying doesn’t = full protection (except in medical customs)
 Argument for: this should indicate standard of care that’s appropriate
 Argument against: industries which lag behind would be able to act negligently
while blaming custom, See TJ Hooper

Physicians: duty to:

1. Conform to the customary practice of other physicians in like circumstances, as measured by
a national standard (sometimes by locality but this is minority approach now) “care of
average qualified practitioner w/ the resources available to the doctor”; and
2. Explain the risks of a medical procedure to a patient before the patient decides to consent to
treatment unless:
 Risks are commonly known, patient is unconscious or incapable of consenting,
patient waives or refuses the information, or explanation of the risks would be
detrimental to the patient
Compliance w/ medical standard usually = not negligent but not always (see glaucoma
case)

Gender:
 Eichorn
o D wanted “reasonable woman standard” to show a reasonable woman
wouldn’t have tried to board the train unassisted so she would then be
negligent
o Can cut both ways: (1) reasonable woman would have exercised more care
or (2) reasonable woman is incapable of taking extra care (kind of like a
child)
 Welke Article
o Justice Cooley: “a woman is bound to observe the conduct of a woman of
common and ordinary prudence” unless she assumes a specialized
trade/skill at which point she is held an equal standard with that
profession.
o Higher standard on female Ds, lower standard on female Ps
Religion:

 Friedman
Question should be:
1. Is there a branch of religion which would interpret the doctrine as requiring the
action P took?
2. Is the P a member of that branch?
Minor is not comparatively negligent, would be the same for an adult “peril invites
escape”
 Religious Ps: usually taken into account w/ P failure to mitigate damages after an injury
1. Where P fails to mitigate because of religious reasons, they cannot also be made
better off w/ damages.

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  Religious Ds: less deference is paid to religious beliefs when the beliefs put others in
harm’s way
1. Ex: aside from states with statutes protecting spiritual treatments, parents are
liable for failure to obtain proper medical treatment for their children because of
their religious beliefs
 Constitutional issue: Legislatures and courts are not required by the Free Exercise Clause
of the 1st Amendment to take into account a person’s religious beliefs when determining
if their conduct was reasonable. IF the beliefs are taken into account, allowing a
judgement of the reasonableness of the religious belief would violate the Establishment
Clause of the First Amendment (Reason Friedman court only asked if the belief existed
and if P believed it)
 Eggshell P? courts reject taking this approach w/ religion as it would eliminate P’s
obligation to make reasonable efforts to mitigate damages

2. Breach of Duty?
Fact based analysis. Compare the facts of the hypo to the standard of care that was owed, how
did the conduct breach that duty?

a. How did they breach the standard of care?

b. Analyze foreseeable risks, what precautions could have been taken
c. Hand formula can help analyze it, risk/utility information goes more to the nature of the
breach. ANALYZE UNDER BOTH DUTY AND BREACH.
d. Ex: not undertaking reasonable care to stop foreseeable risk of. . .
e. Duty of care is relevant to analyzing if there’s breach because it tells you what D should
have done in exercising care

Hand Formula
 To avoid liability B>PL
o P= probability of loss
o L= magnitude of loss
o B=burden of adequate precautions or burden if activity has to be stopped
Hardly ever applied this way but the factors are good to look at. It’s an aggregate utility test.
Problem: encourages parties to choose the least efficient option rather than the most efficient
when courts examine the P and D conduct separately
o Must consider all expected costs, benefits, to all possible combos of parties in order to
know what’s the most efficient

3. Actual causation
D’s negligent conduct was a factual cause of the P’s injury.

o The injury must come from the tortious aspect of the D’s conduct
o Kernan controversy: was the statute meant to help with visibility or prevent fire?
o the tortious aspect of a person's conduct or activity is a cause of an injury only if
each of its necessary constituents (act, omission, condition or circumstance)
contributed to the occurrence of the injury.

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 o harm should be "within” or “result from” a foreseeable risk that made the actor’s
conduct tortious
o if an unlicensed driver causes an automobile accident or an unlicensed medical
practitioner causes a medical mishap, the harm is the sort which the legislature
meant to prevent through its licensing requirements

Tests for Causation

1. But for Test
o R3d § 26: but for the D’s conduct, the P’s injury would not have occurred
o R2d §432(1): The actor’s negligent conduct is not a substantial factor in bringing about
harm to another if the harm would have been sustained even if the actor had not been
negligent.
o Can also work for multiple tortfeasors
o Ex: A + B = Injury (both A and B are but for as both were necessary and the only
people involved)
2. Substantial Factor?
o Independent sufficient causes
o Anderson
o R2d §432(2): If two forces are actively operating, one because of the actor’s
negligence, the other not because of any misconduct on his part, and each of itself
is sufficient to bring about harm to another, the actor’s negligence may be found
to be a substantial factor in bringing it about.
o R3d § 27 Multiple Sufficient Causes
If multiple acts occur, each of which under “but for” alone would have been a
factual cause of the physical harm at the same time in the absence of the other
act(s), each act is regarded as a factual cause of the harm.
o NESS necessary element to a casual set
o Warren, Major, Pushing Car Hypo (Any two of the three is enough)

Problems with Causation

Indivisible injury
 Maddux
o Policy issue: saying P must prove which impact caused which injury suggests it’s
better for a P to go uncompensated than for a tortfeasor to pay more than his
theoretical share. No reason a D should escape liability just because the injury
they caused is too complex.
o Where P has suffered an injury which cannot be divided, it’s unrealistic to insist
on P doing so in order to recover
o where the division of a single indivisible injury cannot reasonably be made
the persons are jointly and severally liable
 But See R2d §§ 433A & 881 would allow tortious defendants who
contribute to a single injury to be liable for only a portion of the resulting
damages if there is a reasonable basis for apportionment or division
according to the (relative) contribution of each. (ex: pollution case

34
 o shifts the burden of proof on apportionment to a defendant only after the plaintiff
has established that the defendant tortiously contributed to at least a portion of the
plaintiff’s injury, or at least directly affected the plaintiff’s person or property

Alternative liability
Joins Ds when we don’t know which one caused the single injury and burden of proof is shifter
to D to show which one caused the injury. Policy reason: Ds have more knowledge than P about
what happened
 Summers
o if it is impossible to tell which one caused the plaintiff's injuries, the burden of
proof of causation will shift to the defendants to either absolve themselves of
liability or apportion the damages between them.
o Limited to situations where (1) it’s known that one of a few negligent defendants
caused the plaintiff’s injury, but (2) it’s practically impossible for the plaintiff to
prove which defendant’s negligence caused the injury, and (3) all the negligent
defendants who possibly caused the injury are before the court (3 isn’t always
necessary)
o When there’s a single injury but multiple defendants are possibly liable for the
one injury, the burden shifts to Ds to show they didn’t cause it or to decide on
their share of damages
 Ds would bring contribution actions against each other
o Where a group of persons are engaged in the use of firearms and 2 are negligent
in firing in the direction of a 3rd party who is then injured, both are liable
 Acting in concert: both liable
 Holding otherwise means even though both acted negligently and one
cause the injury, both are excused from liability because we can’t know
for sure
Market Share Liability
 Smith
o Holds each liable defendant only proportionally liable, based on the probability
that her negligence caused the plaintiff’s injury
o Policy reason for allowing this when identification is usually so important in tort
law:
 Side effects of drugs taken during pregnancy don’t usually manifest until
after puberty
 Records between that time have been lost or destroyed, memories of
people involved have faded
 Sindell
o Market share should be applied where science/tech creates good which harm
consumers and cannot be traced to any specific producer
 More just for manufacturers not innocent consumers to bear the cost
 Manufacturer is in a better position to bear the cost

35
  Manufacturer is in best position to recognize product defects and guard
against them
o P joins D manufacturers of a substantial share of DES and prove every element on
a prima facie case except identity of the tortfeasor
o Once joined, burden of proof shifts to Ds to show they could not have
manufactured the specific DES that caused P’s injury. If they cannot, the court
fashions a market share apportionment of damages
 Holds each D liable for their % share in the specific market
 Several and proportionate liability limited to the D’s market share
 Martin
o P must prove (1) mom took DES (2) DES caused injury (3) D produced or
manufactured the type of DES taken by P’s mom (4) production and marketing of
the DES breached a legally rezognized duty to the P
o Burden then shifts to D to prove by a preponderance of the evidence that it
didn’t produce or market the type of DES taken by the mother, didn’t produce or
market in that area, or at the time the mom was taking it.
o Ds are presumed to have equal market shares- rebuttable w/ proof of actual
market shares
o P recovery is limited to the % of the market represented
Toxic Torts: circumstantial evidence

 P must show with expert testimony that the toxin more than doubled likelihood of the
injury. A two- fold increased risk is important in order to infer a (statistical) probability
of causation in a specific case because it is the equivalent of the required legal burden of
proof—a showing of causation by the preponderance of the evidence or in other words, a
probability of greater than 50%.”
 About half of courts decline that 2x approach because:
1. the average risk reflected in a study may not accurately reflect the risk for
any exposed individual;
2. an increase in risk is relevant and therefore admissible, even if
insufficient; and
3. a risk less than 2.0 may reflect a more-likely-than-not acceleration of the
onset of disease in cases in which exposed individuals would have
contracted the disease at some later time without exposure.
 Daubert
o Expert must be able to
1. Say the toxin did cause the injury; OR
2. Say that D’s toxin more than doubled the likelihood of the injury/defect
o R3d criticizes the lax approach of causation here
 Modern “toxic tort” cases such as Daubert often involve complex and poorly understood
biological and chemical processes, so that the issue of general causal capacity is
contested and must be proved through expert scientific evidence
o Test of admissible and sufficient evidence to establish possible causal
capacity
1. “generally accepted in the scientific community” test (Frye Test)

36
 2. Daubert established the “expert testimony is admissible if it will assist
the jury in comprehending the evidence and determining issues of
fact” rule
 To determine if it would help the jury, the court must first decide if the reasoning behind
the testimony is scientifically valid and can be applied to the facts of the case.
o Done by taking into account a number of factors, including, but not limited to the
following:
1. the testability of the theory/methodology; whether the theory has been
published and subject to peer review; any potential rate of error; and
finally, whether the knowledge has reached general acceptance (the test
laid out in Frye). (Daubert)
 Federal Evidence Rule 702 was amended after consideration of the case law following
Daubert. It now states:
 A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and methods; and
d. the expert has reliably applied the principles and methods to the facts of the
case.

Possible but Unprovable Causation

 Rapid Transit: Bare statistical probability is not enough to prove causation

o P did not prove by a preponderance of the evidence that D was the cause of her
injury
 Wal-Mart

Medical Lost Chance

 Kramer
o No liability where negligent treatment decreased a patient’s chance of avoiding
death or other medical conditions where the adverse result would have occurred
anyways
o P must prove by a preponderance of the evidence that D’s negligent act/omission
was a substantial factor in bringing about the harm and w/o which the harm would
not have occurred
 Three Variations of Lost Chance (proportional recovery for a less than even chance)
o Relaxed Causation Approach
 Allows case to go to jury on the idea that the D negligently deprived the
patient of a substantial or appreciable possibility of survival or recovery;
OR
 Based on R3d §323 (a)- case can be submitted on evidence that D’s
negligence increased the risk of the ultimate harm (but error, this goes to
duty- liability in nonfeasance when you’ve made someon worse after
undertaking care of them)

37
  Court decides if the increased risk of harm or loss of substantial chance
was a substantial factor in bringing about the ultimate harm (concurrent
cause)
 Ultimate death or injury is the harm, not loss of chance
o Loss of chance of survival/recovery=distinct compensable injury
 Creates a separate cause of action
 Ex: Patient who is misdiagnosed and dies but would have had a
40% chance of survival can recover because even if Dr. didn’t
cause the death, he caused the loss chance
 Damages are limited of the value of the lost chance
 Medical malpractice more likely than not decreased a chance of
survival = causation
o Hybrid: relaxed causation approach w/ damages limited to value of lost chance
 Some jurisdictions: require fact finder to decide total damages and % of
lost chance
 Other jurisdictions: allow jury to value to lost chance directly with more
open analysis
 There’s a trend in allowing some form of recovery for medical lost chance since the
Kramer decision

Particulars of evidence
 Preponderance of the evidence: still a hard issue with juries, and people most often need
to make a beyond a reasonable doubt argument (p. 512)
 50+% statistical probability interpretation of the preponderance of the evidence burden

General Statistics
 Basic Cases: Smith, insufficient alone to show causation
 Toxic Tort
o Daubert- more than 2x risk based on expert testimony
o Other courts: don’t infer from 2x risk, need evidence of scientif proof of causation
 Medical Loss Chance
o Distinct injury= substantial lost chance (damages = % of loss)
o Relaxed Causation= entire damages are recoverable
 Traditional approach: recoverable if chances were > 50% at the start
 Lost Chance: any % lost is recoverable

Proximate Causation
The D’s negligent conduct must have been a cause of the injury and must not be subject to any
limitation on attributable responsibility

Three Common Limitations

1. No worse off (damages limitation): relieves a person of legal responsibility for the
harmful consequences of her negligent or otherwise tortious conduct because the plaintiff
would have suffered the same harm anyway as a result of one or more non-liability-
generating conditions.

38
 2. Superseding Cause (sometimes a defense)
3. Foreseeable Risk

Superseding Cause Limitation

(same analysis applies in P cont. negligence)

Relieves a person of legal responsibility for the harmful consequences of her negligent or
otherwise tortious conduct when those consequences would not have occurred if not for the
highly unexpected intervention of some condition or event:

A superseding cause is:

(1) a necessary (“but for”) cause of the plaintiff’s injury that
(2) intervened between the defendant’s tortious conduct (or the plaintiff’s negligence)
and the plaintiff’s injury and
(3) was so extraordinary as to be highly unexpected. (p. 588)

 The analysis of unexpectedness focuses on the expectations regarding the occurrence of

the intervening cause, rather than the occurrence of the final result (the plaintiff’s injury).
 Ask whether it was a natural, normal, ordinary, or probable result of D’s tortious conduct
 Human or animal conduct generally is treated as an intervening cause whether it is
causally independent of or dependent on the risky situation that was tortiously created by
the defendant.
 Natural physical events, such as the sequence of physical events that was triggered by the
dropping of the plank in the Polemis, usually are not treated as intervening causes unless
their occurrence is causally independent (occurred completely independent of the
tortiously created risky situation by the D)
 Also applies to intentional torts except conversion and dominion over people/property

Direct Consequences Rule

D is liable for all direct consequence of his negligence which occur without any intervening
causes (Polemis)
 Polemis completelty rejects the foreseeable consequences limitation on proximate
causation and discusses eggshell P as an exception to the same rule BUT
o Eggshell P only applies to unforeseeable extension of a foreseeable legal injury

Intervening Causes
 All conditions existing at the time of the defendant’s tortious conduct, whether or not
known or foreseeable at that time, “set the stage” upon which the defendant’s tortious
conduct plays itself out, unless
o The force did not become operative until after the D’s conduct and D did not
know or have reason to know of its existence at the time of his negligence
conduct
 For a cause to be intervening: it must intervene temporarily after the D’s tortious conduct
has occurred

Non-ameliorative Intervening Causes

39
DIFFERING AUTHORITIES
 Watson: A criminal act of a third party that causes harm in concurrence with a negligent
act is generally not a reasonably foreseeable consequence of the negligent act.
 Many courts say a criminal act alone is not a superseding cause
 If the intervening human conduct is the hazard, or one of the hazards, the foreseeability
of which made the defendant’s conduct negligent in the first place, its occurrence
obviously will not be treated as a superseding cause, even if it is deliberate or criminal in
nature
o Ex: Trude, it was foreseeable that someone might sit outside the bar and bar fights
are common
 Animal struck by a car who then attacks a P= not superseding, it’s a normal response of
an injured animal

Ameliorative Intervening Causes

 Rescuer injured (danger invites rescue)- use a hindsight analysis for ameliorative
dependent intervening causes (one which occurs as a response or reaction to situation
created by D’s negligent conduct) (Lynch)
o RESCUERS ARE ALMOST NEVER CONTRIBUTORILY NEGLIGENT
OR A SUPERSEDING CAUSE
 Intervention of a third person
o Not a superseding cause unless the person had a duty to intervene and such duty
relieved the D’s originally duty

Foreseeable Risk Limitation

First Restatement and Palsgraf contributed largely to broadly applying this limitation in torts.
Denies liability when there’s no realization of the risk which made the D’s conduct tortious. Two
Formulas:
 “harm matches the risk”: requires the actual consequences match the consequences
foreseeable at the time of D’s tortious conduct and that made the D’s conduct tortious
o Doesn’t require the P’s injury occur as part of the operation of the foreseeable
risks, just that it match
o May be better for deterrence but would be very costly
o Extent of the harm doesn’t have to be foreseeable (R2d§435)
 “harm results from the risk”: requires the actual consequences result from the actual or
anticipated realization and working out of the foreseeable risks that made the D’s conduct
tortious (R3d §29)
o Requires P injury to occur as part of the operation of the foreseeable risks before
the risk has terminated or dissipated but does not require the injury itself to be
foreseeable
o Ex: in Gorris sheep case, the injury would have been recognized

4. Damages
If D confers a benefit on P and offset’s their harm, that can be reflected in damages. “No
worse off” can limit damages

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Lump Sum v. Periodic
 Usually lump sum
Economic damages
 Past medical expenses + prediction of future expenses
 Lost income (working years left x income w/o injury)
o Less work history to go off the more speculative
 Future economic damages are discounted to present cash value
o Accounts for investment
 IRS usually won’t tax so they’re getting gross income instead of net
 Collateral Source Rule- common law
o Tort awards are not reduced by any amount of non-tort sources (insurance)
o Subrogation rights: insurance can recover from P- not all will do this but they can
o P award categories can be manipulated to allocate them so insurance abrogation
rights won’t apply
o May unjustly overcompensate the P
 Judicial review: 7th Amendment issue. Judges cannot reduce or raise P awards because
of this.
o Remittitur: verdict is set aside and new trial ordered o9n damages or liability
unless P agrees to a lower amount
 Very frequently used
o Additur: jury verdict is set aside and new trial ordered unless D agrees to increase
the award
 Very rarely used
 Noneconomic Damages
o Not discounted to present day value
o Compensates emotional/mental suffering
o Two methods are refused
 Jury/judge cannot base it on how much each of them would be willing to
accept for the injury
 Judge/jury cannot assess an amount/day of suffering then multiply that
amount by total # of days P will endure the suffering
o Happiness theory: aggregate harm isn’t as bad as usually expected because
humans adapt to their situations
o Often not reviewed by judges
 Few high awards actually get collected in full, most are reduced on remittitur or settled
to avoid appeal
 Legislative Caps on damages
o Usually on noneconomic damages, sometimes on economic
 Punitive damages are rarely awarded
 Low damages may prevent an attorney from even taking a case
 Constitutional limits forbid “grossly excessive” awards. Excessiveness determined by:
o Reprehensibility of the conduct
o Whether the award bears a reasonable relationship to the actual and potential
harm by D to P

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 o Difference between award and sanctions authorized or imposed in comparable
cases
Excessive punitive damages
 Morris procedural limits
o Due Process Clause forbids punitive damages based on non-party victims
 D has not opp. to defend himself against them
 Makes punitive awards arbitrary if there’s no standard
 No authority suggest punitive damages are to serves this purpose
 Awards cannot be excessive
 Mathias, motel case $5 compensatory, $180k punitive
 Usually 4x compensatory damages max.
 Factors of excessiveness (BMW)
o Reprehensibility of D’s conduct
o Whether the award bears reasonable relationship between actual and
protentional harm
o Difference between award and sanctions authorized or imposed in
comparable cases

Defenses:
Contributory negligence (but see: insanity w/o forewarning (Breunig, not accepted by most
courts; age of minors), comparative negligence, actual consent,

When P is not aware of the specific risks, the only possible defense is contributory negligence
When P is aware of the specific risks, D may argue contributory negligence or actual consent.

No Worse Off Limitation on damages

Injury would have occurred anyways from a non-responsible Act of God or P’s own negilgence.
D’s conduct must not be a necessary condition for the injury to occur.

 Kingston: When two or more human entities both proximately cause injury to a plaintiff,
and only one is identified, the plaintiff may recover the full amount of damages suffered
from the one known wrongdoer BUT the tortious conduct of the D will not be treated as
the legal cause of the P’s injuries if it is proven that the loss would have occurred
anyways as a result of one or more non-liability generating conditions (Act of God)

 Dillon: little boy playing on bridge and electrocuted by wired

o Usually won’t be a defense but will limit damages
o Ct brings up need to compare consequences of P’s own negligence w/
consequences of D’s
o Death=death; no recovery

Act of God
 Must be a natural force
 D must provide very clear evidence that the P’s harm would have occurred anyways

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Trivial Contribution Limitation
R3d §36: Excludes liability for trivial contribution, contribution must be trivial. If a trivial
contribution is nonetheless a necessary condition for the result to occur, liability is not absolved
 Decided by comparing w/ other contributors
 BUT independent sufficient causes are not trivial nor as NESS contributors
 Ex: Kingston, had 1 fire been much greater than the other

Contributory Negligence
Complete defense which bars P recovery. Cont. neg. is where P’s conduct falls below the
standard of care required of him for his own protection and which is a legally contributing cause
cooperating with the D’s negligence to bring about the P’s harm (R2d §463)
 Examine: what P knew about the risks, to himself or others, posed by his own conduct
and whether P’s conduct was unreasonable in the light of the foreseeable risks.
1. P’s conduct was negligent
2. Negligent aspect of P’s conduct actually caused their injury
3. There’s no limitation on P’s proximate causation
o First used in Butterfield: P rode horse while intoxicated into a pole D had put up. Ct
decided if P had used ordinary care he would have seen the pole as it was visible 100
yards away. Plaintiff must also use common and ordinary caution.
Infant P: only has to exercise the care he is capable of
Religious P
Mentally ill P: only required to take as much care as they can
Limitations:
o P is not required to have exercised great care or act in a timid way. Mere indiscretion,
momentary distraction, or error of judgement are not contributory negligence.
o Not available where the D acts willful and wantonly or recklessly unless P acted in the
same manner.
o Not available for D who is negligent per se
o Some jurisdictions will not allow this defense if P contribution is passive or slight and
D’s negligence is active or gross.
o P can recover IF:
o under the last clear chance doctrine: a contributorily negligent P can show D had
the last clear chance to avoid the injury.
o If P was helpless, D is liable despite P’s contributory negligence if the D was
aware or should have been aware of the P’s situation and peril, had an opportunity
to avoid the injury to the P, and unreasonably failed to take advantage of that
opportunity
o If P was merely inattentive: D is only liable if D (1) was actually aware of P’s
situation, (2) was aware or should have been aware that P was inattentive and
unlikely to discover the his peril in time to avoid it, (3) had an opportunity to
avoid the injury to the P, and (4) unreasonable failed to take advantage of that
opportunity.
Argument for: impossible to truly determine a percentage of fault for each part
Argument against: unjust to leave a P uncompensated when D is partially at fault, completely
barring recovery doesn’t distribute responsibility in proportion to fault, juries often
43
 allowed some recovery anyways, shows the public the law is capable of remedying an
issue in a just and consistent way.

Rescue Cases

No matter how much the risk to the would-be rescuer may seem to exceed the expected benefit
to the potential rescue, the would-be rescuer’s conduct is morally praiseworthy, rather than
morally blameworthy or unreasonable, unless it was “foolhardy,” “wanton,” “rash,” or
“reckless.” (p. 390)

Restatements Aggregate Risk-Utility analysis:

The reasonableness of a given risk may depend upon the following five factors:
(1) The magnitude of the risk [the probability of harm]. . . .
(2) The value or importance of that which is exposed to the risk, which . . . may be called
the principal object. . . .
(3) A person who takes a risk of injuring the principal object usually does so because he
has some reason of his own for such conduct,—is pursuing some object of his own. This
may be called the collateral object. In some cases, at least, the value or importance of the
collateral object is properly to be considered in deciding upon the reasonableness of the
risk.
(4) The probability that the collateral object will be attained by the conduct which
involves risk to the principal [object]; the utility of the risk. (5) The probability that the
collateral object would not have been attained without taking the risk; the necessity of the
risk.

The Eckert (killed by train to save child) case will serve as an illustration:
(1) The magnitude of the risk was the probability that he would be killed or hurt. That was very
great.
(2) The principal object was his own life, which was very valuable.
(3) The collateral object was the child’s life, which was also very valuable.
(4) The utility of the risk was the probability that he could save the child. That must have been
fairly great, since he in fact succeeded. Had there been no fair chance of saving the child, the
conduct would have been unreasonable and negligent.
(5) The necessity of the risk was the probability that the child would not have saved himself by
getting off of the track in time.
Person under moral compulsion to rescue someone negligently endangered by D who puts
themselves in serious risk of harm, is not deemed to have consented or assumed the risk of the
consequences.

Comparative Negligence (only not accepted in 4 states)

Treats P’s contributory negligence as a partial defense which then reduces the amount the P can
recover in direct proportion to fault

Pure comparative responsibility: P can recover for whatever percentage the D is at fault. Not a
great approach
 Someone more at fault can recover more money if they receive a larger injury

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 o Ex: Taylor v. Beyonce hypo
 Taylor 60% at fault; expensive car gets $1000 in damages
 Beyonce 40% at fault, large SUV only get $100 in damages
 Taylor owes Beyonce (.60 x 100) $60
 Beyonce owes Taylor (.40 x 1000) $400
Modified comparative responsibility:
 50% modified rule: if P>50% liable they cannot recover
 49% modified rule: 50/50 case is barred from recovery
 Taylor in above hypo would not be able to recover and it would be unfair if she could,
she caused the accident but ends up paying less than Beyonce

Yellow Cab Co.:

1. More just and logical
a. All or nothing contributory negligence rule is too harsh
2. Supports pure comparative negligence: P can still recover even if equally or more at fault
than the D
a. Extent of fault should govern liability

Actual Consent
 Apparent consent and consent implied by law are not defenses to negligence.
 D must prove P’s actual consent by a preponderance of the evidence
 Not a defense if D’s conduct is breaking a safety statute (R2d §496)

Steeplechase: “To the willing no wrong is done”

R2d: A P assumes the risk only when he actually consents to the risk, and such consent exists
only if the conditions specified for actual consent are satisfied:
1. P had full knowledge, understanding and appreciation of the specific risk created by the
D’s negligent conduct;
2. P knowingly exposed himself to the risk
3. P (reasonably or unreasonably) assented or agreed to being exposed to the risk
negligently created by the D
Steeplechase Amusement Co.
 P saw the risk of the rise was falling and went on anyways. P fell and was injured. P
consented to the risk of falling which naturally could be accompanied by any injuries in
line with a sudden fall.

Remedies/Liability for multiple responsible parties:

Contributive Negligence w/o Comparative fault

 Ds would be joint and severally liable
 P could recover full amount from one of the Ds or split it evenly amongst any Ds. Ds
would then be responsible for indemnity/contribution actions.
 Traditional approach splits it by # of defendants

Joint and Several Liability Under Comparative Fault

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  Only applies where Ds are liable for the same injury
 P can recover full amount from any D and then Ds can use indemnity/contribution actions
to recover certain percentages from each defendant.
o Not unfair, even in a comparative fault jurisdiction, because each plaintiff is still
100% liable for the same injury
Joint and several liability
 Makes the most sense for an innocent plaintiff
 Only applies where Ds are all actual and proximate causes of the entire injury
(indivisible injury)
 Multiple parties are joined in the same lawsuit and each is liable to P for the full amount
of damages for P’s injury
 P can recover the full amount from any one or combo of the D’s and the D’s would then
have to deal with each other to try and balance out the expenses
 Used in all pollution/toxic substance negligence claims.
 Argument for: better for P as it gives the highest probability of full recovery
 Argument against: unfairly puts burden on “deep pocket” defendants to bear the costs of
other’s misconduct

Proportionate Several Liability

 Makes the most sense when P is comparatively responsible
 P can only recover full compensation if they can locate, sue, and collect from all
contributory parties
 Disfavored by R3d
 High risk P will be left uncompensated
 Highly disfavored approach

Threshold approach
 Releases D from joint and several liability if her percentage of comparative fault is less
than a certain percentage
 Risk of insolvency when all defendants are below the specific threshold

California approach
 Employs joint and several liability for economic damages and proportionate several
liability for noneconomic damages
 R3d: unjust to those who are not wage earners and suffer more noneconomic losses,
imposes risk of insolvency on an innocent plaintiff, and is inefficient administratively

Without joinder rules

 P has to bring actions against each D who can also bring other Ds into the suit. D who has
paid part of P’s damages can bering contribution or indemnity actions against other
parties
o Indemnity action: full reimbursement from another D who was primarily liable
 Ex: employer paid for damages and files and indemnity action against
responsible employee

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 o Contribution action: partial reimbursement from another D. Allowed in
comparative responsibility jurisdictions
 If 1/3 liable D pays for all damages and the other two may be pursued for
1/3 of what she paid
 Several liability rule: D is liable to the P only for the portion determined by their own
comparative responsibility.
o Strongly supported by many states

Negligence per se (goes to duty and breach)

1. There is a safety statute which imposes a duty on the D to take the care required by
the statute
2. D violated the statute by failing to perform the duty
a. Violation of the statute allows a court to infer negligent conduct but other
elements must be proved normally.
b. Negligence can be inferred, even when the rule is ignored by many others w/o
being sanctioned UNLESS the lack of enforcement is so longstanding and
universal that it indicates the statute is no longer enforced
c. Negligence should not be inferred where an officer w/ property authority
expressly orders or authorized noncompliance
3. P was in the class of people the statute was designed to protect
4. P sustained the type of injury the statute was designed to prevent
5. D’s violation of the statute was the actual cause of P’s harm
6. D’s violation of the statute was the proximate cause of the P’s harm

If the 5 elements are met

 In majority of jurisdictions: D is negligent as a matter of law= irrebuttable presumption
o Prevents courts from contradicting legislature
o But modern view says that when statute itself doesn’t provide for private action, it
is against the will of the legislature to allow it anyways
 In minority: This creates a rebuttable presumption that D was negligent or is just
considered a factor of negligence e
Why does the statute matter?
 Court is not enforcing the statute, it is recognition that statutes provide what society finds
to be appropriate safety precautions
Violation of a statute can be excused when:
 An emergency means complying would result in greater risk of harm than not complying
 OR someone is incapacitated and unable to comply (heart attack while driving)
Failure to have a license: in some jurisdictions this is evidence of negligence and that evidence
can:
a. Create a rebuttable presumption of negligence; or
b. Be sufficient to permit an inference of negligence
But usually a mere failure to have the piece of paper which constitutes a license has no effect on
the risks and doesn’t justify a conclusive presumption of negligent conduct (you have a
license but you don’t have it with you)

Defenses: necessity, infancy, statute is inapplicable to the situation

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Hypo: ignition cases (D would argue not the injury meant to be protected against, P would argue
it’s a foreseeable risk of leaving the car running – but that’s a better negligence claim)

Negligence - Customs

Custom: a voluntary established, general practice

 If the practice isn’t followed by all or almost all of those engaging in the relevant activity,
or although generally followed is eroding, it is not a custom
 Compliance with a custom can be a part of determining if D used reasonable care but
does not conclusively prove no negligence (R2d §295)
 Failure to comply with a custom though is strong evidence of negligence and sometimes
is even a rebuttable presumption of negligence
A company’s own safety policies
 Compliance is not evidence of reasonable care
 Failure to comply with one’s own safety rules is evidence of negligence even when the
company’s precautions are higher than the required standard because it shows what the
company believed was necessary in light of the risks
o Policy argument: disincentivizes companies from having higher safety standards
than necessary even when it might be a good idea
o Company can argue against this by saying the rules required more care than
required or were not implemented for safety reasons
TJ Hooper: “common prudence is never a strict measure of reasonable prudence, nor general
practice the standard of due diligence.
 The radios weren’t a custom, some had them, and some did not
 Had the tug been properly equipped with the radios, the injury would have been avoided
 The radios were easily available, and the general disregard of their usefulness does not
excuse omitting to use them

Medical Negligence Cases

o Determining the standard of care usually requires expert testimony, but is not necessary
when the situation doesn’t require expert knowledge
o See superior knowledge/skill
o P has duty to cooperate in diagnosis by giving an accurate medical history unless
cooperation is impossible (Jackson)
o But ordinary P’s failure to report the origin of pain will be no evidence of
negligence in most cases
o Dr. who is a patient should use his superior knowledge/skill when being treated to
assist the Dr.

Brune v. Belinkoff
o The appropriate standard of care is the degree of care and skill of the average
qualified practitioner, taking into account the advances of the profession.

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  Medical resources available to the physician and local limitations on
medical technology can be taken into consideration as a circumstance for a
general practitioner but is not an absolute limit on the skill required
(allows some consideration for locality of the physician)
 A physician advertising himself as a specialist should be held to the
national standard of an average member of the profession practicing in
that specialty
 Decline of the locality rule
o This was previously the standard of care for physicians but this encouraged a
“conspiracy of silence.” It was almost impossible to get a physician from the same
locality to testify against another Dr.
o New expanded locality rule allows expert testimony from physicians in the same
locality, similar community, and sometimes a national standard.
Helling v. Carey
o Where a test is inexpensive, harmless, and definitive it should be given even if it
is not custom or required. Sometimes what is usually done may be evidence of
what ought to be done, but what to be done is fixed by a standard of reasonable
prudence (similar reasoning to TJ Hooper)

 Most jurisdictions:
o compliance with a professional custom or practice is conclusive evidence of
reasonable medical treatment
o failure to comply is evidence of negligence but is not conclusive
o custom/practice doesn’t have to be universal, just needs to be appropriate or
acceptable to a significant number
 Minority of jurisdictions:
o Don’t treat medical custom or practice as conclusive even when they generally
require expert testimony on what constitutes reasonable medical treatment
 Helling is an exception to treating compliance as conclusive evidence of reasonable
medical treatment because of its unique features- when a P’s condition indicates the
necessity of further examination, reasonable prudence requires such examination
especially where the disease is serious and the tests to discover it are so minimal.
o Not well received by the medical community
o May have been inappropriate as courts can only consider the two sides presented
to them unlike a legislature
 Standard of conclusively being found non-negligent if they conform with medical custom
or accepted practice is not generally applied to other professions
 Only medical malpractice gets locality analysis- prevents Ds from getting too subjective
of a standard of care.

Res Ipsa Loquitur Negligence

Elements:
1. Accident was of a kind which ordinarily wouldn’t occur w/o some type of negligence

49
 2. The accident resulting in harm was caused by and agent or instrumentality within
D’s exclusive control
a. Lax standard
i. Ybarra: no idea what the instrument was
ii. Coke and McGonigal: includes when the instrument has left the D but says
D had exclusive control of it at the time of the negligence OR at the time
of the accident
iii. Actual or constructive control
3. The accident resulting in harm was not due to any action on the part of the P
a. Wright- still okay to apply res ipsa when P has contributed as long as the accident
would not have occurred w/o the D’s negligence

 Satisfies duty, breach, and actual causation

 Doesn’t presume proximate causation
 Shifts burden of evidence to the D
 Goes to breach of duty when there is no direct evidence of how the D exactly breached
their duty of reasonable care, “the thing speaks for itself”
o P cannot, despite reasonable effort, identify the specific conduct by the D that
allegedly cause the P’s injury, SO P must establish the following two inferences
with circumstantial evidence:
 Someone’s negligence caused the P’s injury
 The D was that someone
 Allows P to avoid a directed verdict for the D for lack of evidence
 Creates a rebuttable presumption of negligence
o D is then responsible to show no negligence
o If D does rebut the presumption, but their evidence is not conclusive, P has the
burden of persuading the trier of fact.
 Policy decision to allow a D to be held liable when it is more likely than not that the D
was the negligent cause of the P’s injury, but (by no fault of the P) it’s practically
impossible for the P to prove the D’s causal negligence.
 Limitations:
o Some say the rationale behind res ipsa is the D’s access to information the P
doesn’t have and that it should be limited to those situations only
o Some courts limit the doctrine to cases where there is no specific evidence of
negligence
o Other courts permit the doctrine to be used along with specific evidence of
negligence, unless the theory of causation supported by the specific evidence is
accepted and undermines the res ipsa inferrence

Cases: Byrne – Flour case, McGonigal, Ybarra, Coca Cola

Premises Liability – Is there a duty?

Occupier: owner or tenant, if no occupant the person who has the right to occupy it, if neither-
whoever last occupied the property (R3d §49)
o Common areas = owner/landlord

50
 o Leased areas= tenant
o Unless landlord knowingly leases out the property in a dangerous condition and
the tenant is unaware of the condition or if the lease/ordinance/regulation requires
the owner to repair certain conditions
o Common law: No duty remove snow/ice but if owner undertakes to do so he has a duty to
remove it safely so as not to cause injury
o IL law: immunity for owners who try to clear ice and snow so long as they don’t then
create a risky condition
o General duty to maintain premises in a non-negligent way

Trespasser: enters/remains on land w/o privilege to do so

Licensee: a person who has been given permission to enter or remain on the land but is not an
invitee. Usually a social guest
o Also includes people an occupier just tolerates being on the land: children playing in your
front yars
Invitee: business visitor invited to enter or remain on the land for a purpose directly or indirectly
connected with business between the two parties
 Most jurisdictions also recognize public invitees: members of the public invited to land
open to the public

Traditional Law Duties

 Licensee and Trespassers: owner only had duty not willfully or wantonly injure them
unless:
o Children/attractive nuisances
 Invitee: reasonable care to resolve foreseeable risks on the premises, make it safe

General Application
Trespasser: parties take the premises as they find them regarding any dangerous conditions.
Land owner only owed duty to refrain from injuring them willfully, wantonly,
intentionally, or through reckless disregard of a substantial possibility of them being
injured (R2d §333)
 Duty to warn about active operation, concealed traps if highly dangerous
 Limited duty to trespassers if:
o Trespassers on the edges of your land which border a public way: must take
reasonable care to avoid foreseeable injury to travelers on a public way who, in
the ordinary course of their travel on that way may foreseeably wander from the
public way onto the edges of your land bordering it (R2d §368 & 369)
o Known trespassers who the occupier is aware of or has reason to be aware of;
frequent or constant trespassers on a limited area whom the occupier is aware of
or has reason to be aware of: must take reasonable care to protect them against
risks created by active operations or by concealed artificial conditions which the
occupier knows are highly dangerous.
 Reasonable care= warning, unless there’s insufficient time for an
effective warning or the occupier knows the trespasser is unaware of or
intends to disregard the warnings.

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  Subjective, focuses on what the D actually knows/is aware of or has reason to know
o Child trespassers: land occupier must take reasonable care to protect children
from artificial conditions which the occupier knows or has reason to know will
involve significant risk of death or SBH to children in places the occupier knows
or has reason to know children are likely to trespass, if the children because of
their youth do not discover the danger of the condition or realize the risk
involved, and if the utility to the possessor of maintain the condition and the
burden of eliminating the danger are slight compared with the risk to the children.
Attractive nuisance doctrine
 Balances land owner utility w/ the inability of children to foresee some
risks

Licensees: Land occupier must take reasonable care to protect a licensee from on-premises risks
of dangerous activities or (natural or artificial) conditions on the land which the occupier but not
the licensee knows or has reason to know.
 Warned of dangerous conditions
 Reasonable care: simply warning the licensee, unless
o there is insufficient time for an effective warning or the possessor is aware the
licensee in unaware of or intends to ignore the warning in which case moderate
precautions may be required, taking into account the D’s resources (R2d §341-42)
 Child licensees get same attractive nuisance approach as in trespassing

Business and public invitees: Land occupier owes the broadest, general duty of care to invitees.
Occupier must not only warn invitees of dangers which the occupier knows of or has reason to
know of, but must also inspect the premises for and warn of unknown foreseeable dangers and
exercise reasonable care to make the premises safe if a warning would foreseeably be insufficient
to protect the invitee from physical harm (R2d §341, 343)

Modern view (minority of jurisdictions): did the D in managing his property, act as a reasonable
man would in view of the probability of injury? The P’s status under the TL can be
considered when deciding on reasonableness. (Rowland)
o Status as invitee, licensee, trespasser is not conclusive evidence of the duty owed, it is
instead useful in determining if the land owner was reasonable under the circumstances
o Trespassers still generally get limited duty of care

Off-Premises Risks:
The general duty of reasonable care applies to such off-premises risks. Except with respect to
trees, land owners and occupiers generally do not have a duty to protect persons or things
off their premises from risks created by natural conditions on their property—for
example, landslides from uphill properties in a natural (not man-made) condition.
Trees must be inspected and maintained to prevent developments of risks
Land owners do owe a duty of care to invitees for artificial conditions arising from their premises

Obligation of non-occupants
Non-occupier defendants, including trespassers, may be held liable to other non-occupier
entrants on the same land, including other trespassers, under the general duty of

52
 reasonable care. They are not subject to the special rules applicable to occupiers, unless
they “stand in the shoes” of the occupier, as, for example, a contractor may be considered
when working on the occupier’s premises.

Product Liability

Implied Warranties
 UCC §2-314 Merchantability: that goods are merchantable is implied in a contract for
their sale if the seller is a merchant with respect to goods of that kind. Other implied
warranties can arise from course of dealing or usage of trade. Goods to be merchantable
must at least:
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the
description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality
and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require;
and
(f) conform to the promise or affirmations of fact made on the container or label if
any.
 McPherson v. BMW removed privity of contract requirement in order to claim defective
product
o Limited liability for physical injuries caused by defective products. Abandoned in
favor of strict liability. UCC 2-318 extended warranty protections to any
person “who may reasonably be expected to use, consumer, or be affected by the
goods and is injured in person by breach of the warranty”
o UCC 2-719(3): limitation of damages for injury to the person in the case of
consumer goods is unconscionable
 UCC §2-315 Fitness for proposed use: where seller has reason to know any particular
purpose for which the buyer requires the goods and the buyer is relying on seller’s skill or
judgement to select or furnish suitable goods, there is – unless excluded or modified- and
implied warranty that the goods shall be fit for such purpose
 Modern Sales Warranty: liability for physical injuries to person or property as an element
of consequential damages, unless the defect that caused the injury was discovered or
should have been discovered by inspection prior to use of the product (UCC 2-715(2)(b)
comment 5)

Breach of implied or express warranties= strict liability

 Under merchantability action: P would need to show some defect or deviation from the
norm that prevents the goods from being merchantable
 Doesn’t apply to small defects. Ex: fish chowder can have small bones and not be liable
 Implied warranty is inapplicable IF P had sufficient time to inspect the good prior to
the injuring use (UCC 2-316,2-715). Usually requires P to:
o Provide detrimental reliance on D’s warranty

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 o Provide D w/ prompt notice of the injury
o Foreseeability limitation on consequential damages in K law is more strict
than attributable responsibility limitation in torts
 Even w/o privity of K, tort law recovery for consequential damages under warranty
provisions is limited significantly
o Hard to extend recovery beyond purchases and initial users to more distant users
and bystanders
 R2d§402A: allows strict liability w/o the limitations of sales law.

Defenses:
 fully informed freely negotiated bargain for an adequate consideration by consumers with
sufficient bargaining power (R3d)
 product user is contributorily negligent only when she behaves unreasonably in light of
the risks posed to her by a defect in the product of which she is aware OR due to its
obvious nature she should have been aware
o user has no obligation to inspect for defects and is entitled to assume the product
is fit for ordinary purposes for which it’s made
o in almost all jurisdictions, contributory negligence is a partial and not a complete
defense, subject to pure or modified comparative responsibility.
 Proof of compliance with state-of-the-art is not an affirmative defense to defective design

Defective Design
1. Proper P
a. R3d: any person injured (purchaser, user, bystander)
b. R2d: leaves issue of bystanders and nonparticipatory Ps open but case law shows
they are included
c. UCC extends warranty to bystanders
2. Proper D
a. Manufacturer
i. Some jurisdictions limit strict liability to manufacturers and many subject
non-manufacturers to strict liability only if the manufacturer is insolvent
b. Commercial distributor
c. Commercial seller
3. Product Design was Defective
a. R2d §402A: Consumer expectations test (strict liability). Defective condition was
unreasonably dangerous – MAJORITY VIEW
i. Unreasonably dangerous= beyond what is ordinarily contemplated by a
consumer with ordinary knowledge
1. Avoids liability for unavoidably dangerous items like
knives/alcohol
ii. even if D exercised reasonable care, still negligent
b. Hybrids:
i. CA 2 prong test: starts with consumer expectations then looks at
risk/utility- burden of risk/utility is on the D (most popular)
1. Consider likelihood of danger, gravity of danger, precautions
possible

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 2. Even if a product meets the consumer test, a product can still be
defective if its danger is excessive and preventable
ii. IL start with consumer expectation, if product is complex then go to
risk/utility
c. R3d §2b: Risk/utility and reasonable alternative design (more negligence based)
i. Requires alternative design to prove negligence- MINORITY VIEW
ii. Would allow recovery where danger is open and obvious (knives) and
where consumer doesn’t know the safety expectations
4. Defect when product was distributed by the D and reached consumer without
substantial change
a. Similar to res ipsa loquitur
i. R3d §3: may infer that a product is defective w/o proof IF:
1. injury of the kind you would expect; and
2. injury was not solely the result of causes other than the defect
existing at the time of sale or distribution, don’t have to prove
specific defect
5. Defect was a factual cause of the physical injury to the P or other property and a
proximate cause
a. Injury may not be pure economic loss
b. Damage to the defective product alone is not an injury (it’s a K implied warranty
issue)
c. Superseding cause: product misuse

Three types of defects

1. Construction- faulty item
a. Almost all states agree on strict liability. Negligence action can also be brought
but isn’t necessary
b. Applies through the chain of distribution
2. Design- all of the products are bad
3. Warning- must warn of risks which an objective consumer would find material or
significant in deciding to use the product (was the risk foreseeable, did the D warn, was
the warning adequate)
a. Some jurisdictions consider strict liability here using hindsight analysis
i. Hindsight: product warning or lack thereof is defective if, assuming
contrary to fact that the product seller knew at the time he sold the product
what is known at the time of trial about the risks of a product, a better
warning about the risks should have been provided
b. Most jurisdictions use negligence rules. SL approach is not common and hardly
ever used. Puts too much burden on D.
i. R3d §2 comment j: product seller is not subject to liability for failing to
warn or instruct regarding risks and risk avoidance measures that should
be obvious or are generally known by foreseeable users.
ii. R3d §2(b): a product is defective when the foreseeable risks of harm posed
could have been reduced or avoided by the provision of reasonable
instructions or warning by the seller or other distributor and the omissions
of the instructions or warning renders the product not reasonably safe

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 c. Post-sale warnings: very burdensome on D, only required where the risk of harm
is sufficiently great to justify undertaking a post-sale warning program even for a
substantial risk R3d §10 comment j
i. “risk of harm is sufficiently great to justify the burden of providing a
warning”

Adulterated food = 100% strict liability for statute violation

Allergies: warning must be placed on any product which contains an ingredient that a substantial
number of persons are allergic to

Strict Liability for Defective Designs Which Cause Injury

 See Coca Cola
 Public policy reasons: manufacturer is better equipped to bear costs of injuries compared
to the average consumer. In better position to find and remedy defects than retailer
o Retailers can be held liable under implied warranties of fitness for proposed use
and merchantability but if consumer could only sue retailer, they likely couldn’t
fully recover

Factors for risk/utility analysis

 Usefulness, danger, likelihood of danger, avoidability, state of the art, manufacturer’s
ability to reduce the risk, feasibility of spreading the loss w/ insurance or higher prices
 Risk/utility puts high burden on the consumer

Reasonable alternative design R3d §2b

 “Product is defective when the foreseeable harm could have been avoided or reduced by a
reasonable alternative design and the omission of that render the product not reasonable
safe”
o P is to prove an alternative is technologically feasible, practical, and reasonable
 Required in some jurisdictions
 Pretty unreasonable
 Expert witness may be required unless it’s simple suggestions
o Expert doesn’t have to design a prototype
 Many states reject this

Most common approach: consumer focused risk-utility analyses

Categorically unsafe products

 R3d §2 comment e-d: permits liability for products that can only be made safe by not
existing w/o P having to provide an alternative design if the extremely high risk of danger
outweighs its utility so much that no rational, reasonable person, fully aware of the
relevant facts would choose to use or allow others to use the product
Defective design by Negligence Per Se/Res Ipsa
 Noncompliance w/ a safety statute = negligence per se(R3d §4)
 Res ipsa if product fails to perform its manifestly intended purpose R3d §2 comment b

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In product liability cases, the tortious aspect of the defendant’s conduct or activity is the defect in
the particular product, and it is clear that the defect must be a cause of the injury. R3d §15

Cases: Conair (heating pad)

Defective Warning
1. Duty
a. Based on the foreseeable risks at the time of creating the product
b. Must warn of risks which an objective consumer would find material or
significant in deciding to use the product (was the risk foreseeable, did the D
warn, was the warning adequate?)
c. Except for:
i. Learned intermediaries: usually in medicine cases, no duty when
intermediary should know the danger because it is common fact of the
field, intermediary is then the proximate cause
ii. Sophisticated users: no duty to warn ultimate user if supplier has reason
to believe the user will realize the danger includes common knowledge of
the field
1. Must be evidence the end user had reason to know
iii. Sophisticated intermediaries: where it’s highly impracticable for
supplier to directly warn the end user, there is an assumption the end
user’s employer will act in the best interest of its employees
1. No duty where either
a. End user’s employer has equal knowledge of supplier
regarding the dangers; OR
b. Supplier makes the employer knowledgeable by
provided adequate warning and safety instructions to
the employer; AND
c. D must show it used reasonable care in relying on the
intermediary to warn the end user
i. R3d §388 comment N: consideration of purpose for
which product is to be used, magnitude of the risk,
burden of providing direct warnings to end users
and the reliability of the intermediary as a conduit
iv. Bulk suppliers: duty is discharged by warning the buyer because of the
difficulty of reaching the end user with bulk items
1. Warning must still be adequate
v. Raw material/component suppliers: R3d §5: suppliers of a raw material
should not be liable when its product is integrated as a component into a
finished product if the component itself isn’t dangerous
1. In badger mining, sand isn’t a dangerous material but becomes
dangerous when used for foundry purpose and that was the reason
D supplied sand. The sand and not the finished product was the
danger + wasn’t used in the final product, just used to make it.
2. D must still provide adequate warning to the intermediary
purchaser

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 2. Breach
3. Factual Cause (causation is harder to prove w/ warning cases)
a. Heeding presumption- rebuttable
i. Factual cause is hardest part of failure to warn. This presumption allows
fact finder to assume P would have heeded an adequate warning
b. No presumption (Morris)
i. Subjective standard that asks whether specific P would have heeded the
warning
ii. Not helpful for Ps who are seeking damages for someone who has died
4. Proximate Cause
5. Defense
a. Comparative fault: how careless/negligent was the P
i. Percentage based liability
b. Product misuse, split:
i. If misuse is unforeseeable it’s a complete defense (Campbell)
1. Superseding cause
ii. Product misuse is just part of comparative fault

Potter (power tool), Badger Mining (lung silicosis)

Question of whether warning was adequate is a jury Q

Ask whether employer was actuall relying on supplier warning to provide its safety
recommendations

Common Law
General duty to warn: supplier has duty to warn end user of a dangerous product if it’s
reasonably foreseeabl that its use could result in injury
 Legally adequate warning
o Attracts attention of those the product could harm
o Explains the mechanism and the mode of injury; and
o Provides instructions on how to safely use the product to avoid injury
R3d §388
 Supplier through a third party or directly for another to us is subject to liability to those
whom supplier should expect to use the chattel with consent of the other or to be in the
vicinity of its use, for bodily harm cause by the use of the chattel in the manner for which
and by a person for whose its use is supplied, IF the supplier
o Knows or should have known the chattel is likely to be dangerous for the use it is
supplied
o And has no reason to believe those for whose use the chattel is supplied will
realize it’s dangerous condition
o And fails to exercise reasonable care to inform them of its dangerous condition or
of the facts which make it likely to be so
Federal Regulation
 Suppliers of hazardous product must provide a MSOS that includes precautions for safe
handling known by the manufacturer and control measures known by the manufacturer
(controls, work practices, personal protective equipment)

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 o May be negligence per se if breached
o Conforming may not satisfy duty to warn required by the state

Private Nuisance
Protects landowner’s interest in use and enjoyment of their land against intangible invasions
(gas, odor, smoke, dust, noise, fumes, etc. NOT radio waves, light, view obstruction). Prevents
others from using their land in a way that interferes with others.

1. D’s conduct was a legal cause of an invasion of P’s interests in the private use and
enjoyment of land
a. Act/Omission: may be negligent and give rise to a private nuisance or may be
created without negligence
2. Invasion was
a. Intentional
i. Knowledge or purpose
ii. Knowledge is usually met by asking to stop before seeking legal help
iii. If intentional, D is liable for the injury regardless of degree of care
exercised to avoid the injury
b. Unreasonable
i. Significant harm to an ordinary person in the community of ordinary
sensibilities
1. Once this is met, D is also liable for any extra-sensitivities beyond
that
ii. Legal injury:
1. R2d §821D: nontresspassery invasion of another’s interst in the
private use and enjoyment of their land
a. R2d §821F: To be liable, invasion must cause a significant
interference, of a kind that would be suffered by a normal
person in the community or by a property in normal
condition and used for a normal purpose
2. High Penn Oil: harm must be significant to a person of ordinary
sensibilits in the community
a. Location of the nuisance matters
3. UNLESS: D maliciously caused significant interference w/ P’s use
and enjoyment. Only applies if D is acting 100% maliciously
4. Live and let live: location matters
a. Cannot file private nuisance for noises which are ordinary
and reasonable for the location
5. D may have a prescriptive easement if they’ve been conducting the
same activity for a long period w/o complaints
iii. Utility balance: invasion is unreasonable regardless of utility if the harm it
causes is more than one should have to bear w/o compensation (R2d §829)
1. R2d §828
a. Social value the law attaches to the primary purpose of the
conduct

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 b. Suitability for the character of the conduct to the locality
c. Impracticability of preventing or avoiding the invasion
If unintentional: actionable under negligence or dangerous conditions/activities

Nuisance per se: an act, occupation, or structure which is a nuisance at all times regardless of
location or surroundings
 Lawful operations cannot be nuisances per se
Nuisance per accidens: becomes a nuisance by reason of the location OR by reason of the
manner in which they are constructed, maintained, or operated

Public nuisance: unreasonable interference with a right of the general public. Doesn’t involve
interference with land, only actionable by gov. officials
Ex: blocking a highway, illegal prostitution house

Extrasensitive P: cannot initiate a claim because of this but can recover more if it’s significant
to a person of ordinary sensibilities and also you suffer more because of your sensitives (R2d
§821)
 UNLESS D is acting w/ malic to target the extrasensitvities in which case that is
actionable (R2d §829)
P who moves near the nuisance
 Cannot recover if they moved simply to be able to file the suit OR
 P has moved to an area generally used in the way D is and isn’t shifting towards more
compatibly uses of the P
Remedies
1. Injunction available for abatable nuisances when there is a risk of an irreparable harm or
the nuisance will continue after trial: equity analysis
a. Purchased injunction: when private and public nuisances overlap
i. Sun City- Purchased D’s farmland to prevent smell for benefit of the
community
b. Temporary injunction (Boomer cement): can resume operation once damages
have been paid
i. May be very effective because it incentives D to find a solution
2. Actionable nuisance: legally recoverable
a. If nuisance cannot be abated for policy reason, P will get permanent damages
instead
i. Court looks at market values and contract theory- very objective
ii. Not super fair

Ds liable for a private nuisance are enjoined and liable for damages unless:
1. There’s an important public benefit from the D’s activity rather than merely a private one
2. Continuation of the nuisance would not constitute a significant threat to P’s life/health
3. Public benefit greatly outweighs P’s burden
4. Injunctions would result in a loss of or substantial reduction in the public benefit because
it’s not technologically or economically feasible for D to avoid damaging P w/o
discontinuing or substantially reducing activity; and
5. The Ps are fully compensated

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 Strict Liability
D is liable for the consequences of any foreseeable risks, even though we can’t say an ordinary
person could and should have behaved differently in the particular circumstances- might even
say the D acted in a reasonable way but still needs to pay for damages. Liable despite an
objectively reasonable, good-faith mistake and involves no moral or even legal fault. R §519
 Adultered food
 Products which make it to the market without inspection and prove to be defective and
harm someone
 Wild animals (Behren)

Dangerous Activities – Strict Liability

1. D engaged in some abnormally dangerous activity

a. Koos- harm of exceptional magnitude or exceptional probability
i. Common usage limitation
b. R2d §520 (6 factors)
i. Inappropriate location
ii. Value of activity to the community outweighed by dangerous activity
2. Abnormally dangerous characteristic of the activity caused the harm to the P
a. Injuries: actual realization of the risk or anticipated realization of the risk
(ex: heart attack from seeing a tiger)
b. D is not strictly liable to P who voluntarily and directly benefited from the risk. P
would have to recover through negligence or an intentional tort
i. Ex: spectators, employees, customers
3. Defenses to the strict Liability
a. Comparative fault or contributive negligence
i. If P knew of the abnormally dangerous characteristic and unreasonably
exposed themselves or their property to the risk
b. Consent
i. If escape was caused by P, may help the defense
ii. Exists only if P actually consented to being exposed to the risk and was
aware of the specific risks created by the D’s conduct and freely and
voluntarily agreed to be exposed to it- not just knowingly being exposed
(R2d§523)
c. Superseding Cause
i. Not superseding if intervening element causes the escape or loss of control
of an abnormally dangerous force
Dangerous item on property
 Rylands: A person who disrupts the natural state of real property by lawfully bringing
something onto his land (doesn’t include natural features) that, if it escapes, is capable of
doing harm, is strictly liable for any harm occurring as a natural consequence of the
escape.
o Large water holding tanks which burst and flooded neighbor is his responsibility
o Wouldn’t be if the collection of water naturally occurred

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  UNLESS there was negligent maintenance of the land which made it
dangerous
 True Rule
o R1 §519: one who carries on ultrahazardous activities is liable to another whose
land or chattels the actor should recognize as likely to be harmed by the
unpreventable miscarriage of the activity for harm resulting from that which
makes the activity ultrahazardous, even when the utmost care has been taken
 NOT strict liability if harm doesn’t come from the dangerous aspect (ex:
Mink cases, died from sound of explosives)
o R1 §520: Activity is ultrahazardous IF
 Necessarily involves a risk of serious harm to the person, land, or chattels
of others which cannot be eliminated by the exercise of the utmost care;
and
 Is not a matter of common usage
o Strict liability if the thing is likely to cause serious injury should it escape from
D’s control
 R2d
o §519: Causation and Proximate causation
 One who carries on an abnormally dangerous activity is subject to liability
for harm to the person, land, or chattels of another resulting from the
activity, although he has used the utmost care to prevent the harm;
 This strict liability is limited to the kind of harm the possibility of which
makes the activity abnormally dangerous

Factors of abnormally dangerous

 R2d §520: high degree of risk of harm, likelihood the harm will be great, inability to
eliminate the risk by exercise of reasonable care, extent to which the activity is not a
matter of common usage, inappropriateness of the activity to the place where it is carried
on, extent to which it’s value to the community outweighs its dangerous attributes
 Usually requires multiple factors
o Most courts follow the R1 explanation/true rule

Dangerous Animals- Strict Liability

 D is liable for the escape of the animal and all resulting damages unless there is a
superseding cause which occurs after the escape
o Duty:
 Ferae naturae = wild animals presumed to be dangerous
 Domesticated animals are not presumed to be dangerous uless they have demonstrated
viciousness
 R3d: limits liability to injuries which result from the dangerous characteristic of the
animal
o Size alone can be a dangerous characteristic
o But: kid bumps into bear without seeing it and falls off bike is not recoverable
 No strict liability if animal is in its natural habitat

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Social Factors of Ultrahazardous Activities
 Koos, farmer burned field using reasonable care
 Resolving of strict liability depends on probability and magnitude of the harm
o if possible harm is lethal or highly destructive, a slight probability is enough for
SL
o If probability is extremely high but threat is moderately low damage OR can be
carried out only w/ a substantially uncontrollable likelihood something would
occur= SL
 A dangerous activity may not abnormally hazardous, even if it’s intrinsically dangerous,
if it is a common usage or is in an appropriate location
o Fire is not SL: use of it must be abnormally dangerous (field burning)
 If an activity is subject to strict safety regulations it’s likely abnormally dangerous

Common Usage: an activity widely carried out by many persons and accepted as a natural or
necessary by inhabitants of the locality.
 R2d §520 comment i
o It it’s customarily carried out by the great mass of mankind or many people
o Doesn’t cease to be a common usage because it’s carried out for a purpose
peculiar to the individual who engages in it
o Certain obviously dangerous activities are customary regardless because they are
so commonly done and serve such a public service
 Ex: cars
o Usual dangers resulting from common usages are not regarded as abnormally
dangerous even though a serious risk of harm cannot be eliminated with due care
o Danger can depend on manner of use
 High tension power line=dangerous
 Home electrical lines=not dangerous
 Specific industries do not sent the standard of being “common” for themselves
 Location may be appropriate if the dangerous activity is useful or necessary and
sometimes because it is less likely to cause harm because of its location

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