Torts I Outline – LeCesne Page 1 of 35

I. Intentional Interference With Person or Property (Intentional Torts)

A. INTENT
1. Only necessary to prove that the person intended to perform the action; not necessary to
prove that ∆ intended to cause injury
2. Intent doesn’t require showing of malice, but must be volitional and there must be a chance
of harm or bodily contact; reckless
3. Types:
a. General
i. Δ may not consciously desire the physical result, but knows that result is
substantially certain to follow
b. Specific
i. Δ consciously desires physical results of his act; acts with the purpose that
the consequences will follow
c. Transferred
i. when an intent to cause harm to one person results in harm to another
person instead of the intended target, the law transfers intent to the
actual harm caused
 Only applies to 5 torts:
 battery,
 assault,
 false imprisonment,
 trespass to property/land and
 trespass to chattels (chattel- a movable, tangible
property)
o (i.e., shoot at a dog)
 Doesn’t apply to conversion, transfer of…
 Occurs in case of same tort, different target; or in case of different
tort, same target; or in case of different tort, different target
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4. Neither good faith nor insanity excuse liability as long as the person possesses the required
intent to perform the action
5. **With every tort case, must first determine: was there intent? If so, what type of intent is
it-specific, general or transferred?
6. The tort law standards differ from the criminal law standards for holding the mentally ill
responsible for their actions.
a. i.e., Δ liable for battery of Π’s decedent even though he was found not guilty by
reason of insanity in criminal case arising out of same incident.
7. Even if a mentally ill person lacks the ability to form the intent to commit a tort, an action
may lie against persons responsible for caring for the mentally ill person, based on negligent
supervision.
a. i.e., parents liable for negligent supervision when 22 yr. old son attacked his
therapist.
8. Cases:
a. Garratt v. Dailey (liability of infant for alleged battery –pulled a chair out from lady)
i. Rule: Intent to perform the act is all that is necessary, not intent to do
harm
b. Spivey v. Battaglia (unsolicited hug by fellow employee)
i. Rule: ∆ liable for reasonably foreseeable consequences, though exact
results and damages were not contemplated. Enough that ∆ had intent to
do act which would cause harm—embarrass
c. Ranson v. Kitner (dog killed because looked like wolf) (Tort = trespass of chattel)
i. Rule: Only need general intent (i.e., lifting the gun and shooting and killing
someone’s personal property) to perform an act, not intent to harm, to be
held liable. Mistake and good faith do not negate intent
d. McGuire v. Almy (insane person batters nurse)
i. Rule: An insane person is liable for intentional damage to a person or
property of another just as a normal person would be. Mental illness or
voluntary intoxication doesn’t negate intent.
ii. While in criminal law an insane person can negate intent.
iii. In this case, she would only have to know with substantial certainty that
the harm would occur.
iv. A volitional act is always required. i.e., if you have a heart attack and run
into another car, you are not liable.
e. Talmage v. Smith (boys on shed)
i. Rule: ∆ is liable for committing battery, even if he intended to cause the
harm to one person, but instead harmed another (the doctrine of
transferred intent).
ii. On the other hand, when either the tort intended or the one accomplished
does not fall within the trespass action, the doctrine of transferred intent
does not apply.
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iii. Anyone who is in harms way can make a claim. The Π could make a claim
even if the stick did not hit either of the children.
B. BATTERY
1. The intentional infliction of harmful or offensive contact upon the person of another
(intentional striking of someone, with intent to harm, or in a rude manner even if injury is
slight)
a. A battery is the knowing or intentional touching of one person by another in a rude,
insolent, or angry manner
2. Elements:
a. Intent
b. To cause
c. Harmful or offensive (physical) contact
d. With the person of another
3. A victim does not need to be aware of battery at the time it is committed, a battery can be
committed when someone is unconscious
4. Can be committed if a person’s actions cause mental suffering in another; invasion of a
person’s dignity
5. Doesn’t require anger
6. Any touching, however slight, may constitute an assault and battery.
7. The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire
to do any harm. Rather it is intent to bring about a result, which will invade the interests of
another in a way that the law forbids.
8. Restatement (Second) of Torts (1965)
a. §13. Battery: Harmful Contact
i. An actor is subject to liability to another for battery if:
 He acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent
apprehension of such a contact (scaring them), and
 A harmful contact with the person of the other directly or
indirectly results
b. §18. Battery: Offensive Contact
i. (1) An actor is subject to liability to another for battery if:
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 He acts intending to cause a harmful or offensive contact with the

person of another or a third person, or an imminent apprehension
of such a contact, and
 An offensive contact with the person of the other directly or
indirectly results
ii. (2) An act which is not done with the intention stated in Subsection (1,a)
does not make the actor liable to the other for a mere offensive contact
with the other’s person although the act involves an unreasonable risk of
inflicting it and, therefore, would be negligent or reckless if the risk
threatened bodily harm
9. Notes from book:
a. Grabbing the breast of someone’s coat, spitting in their face, forcibly removing their
hat, etc. are all offensive touching, therefore a battery.
b. Tapping someone on the shoulder—not offensive, not all unwanted touching is a
battery.
c. Even if someone is trying to help, after they have been asked to stop, any
subsequent touching after that is a battery.
d. Knowing someone is allergic to smoke and still blowing it into his or her face is a
battery.
e. You must be conscious for an assault (you must be aware of the imminent
harmful/offensive danger), but you do not have to be conscious for a battery to
occur. (sleeping beauty would have a cause of action for battery but not for assault)
f. Security guard operating under the “Shopkeeper’s Privilege” can search or pat
down someone reasonably suspected of stealing  this wouldn’t be a battery
g. If it is “unreasonable” to assume the person is stealing and you snatch a package,
then that is a battery.
10. Cases:
a. Cole v. Turner (old case—trespass)
i. Rule: The evolution of the definition of battery—touching in anger is
battery; brushing past someone is not; however if force or struggle is
caused while brushing past, then a battery.
b. Fisher v. Carrousel Motor Hotel, Inc. (refused to serve black man; slapped plate out
of his hand. This is an offensive invasion of his person)
i. Rule: “To constitute an assault and battery, it is not necessary to touch the
Π’s body or even his clothing; knocking or snatching anything from Π’s had
or touching any thing connected with his person, when dome in an
offensive manner, is sufficient.”
ii. Only have to intend to touch something immediately related to another’s
person, not the actual body for a battery to exist.
c. Wallace v. Rosen
i. Contact is offensive if a reasonable person would determine the contact
was offensive. This is an objective standard used.

C. ASSAULT
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1. Intentionally causing apprehension of imminent harmful or offensive bodily contact to the

person of another.
2. Elements:
a. Intentional act
b. Causing
c. Apprehension
i. Imminent bodily contact
ii. Apparent ability to affect the act
d. Harmful or offensive contact
3. Π must have reasonable apprehension of assault, therefore Δ must have the apparent (not
actual) ability to carry out the act; battery is imminent
4. However lewd or crude, absent a movement toward the Π, an assault has not occurred.
Preparation of an assault is not enough; some overt act must accompany it.
5. If A finds out after the fact that while his back was turned that B had pointed a gun at him,
there is no assault
6. Doesn’t have to have an attempted battery component in tort law
7. Fear is not required, only apprehension
8. Awareness of the act can be achieved through any of the senses; must be aware of the
assault
9. While every battery includes an assault (in criminal law), an assault does not necessarily
require a battery to complete it.
10. A major distinction between a criminal assault and an assault in tort is that for criminal
assault, a victim need not have an apprehension of contact.
a. A criminal assault occurs if the Δ intends to injure the victim and has the ability to
do so.
b. For the tort of assault, the victim must have an apprehension/worry of contact, and
it is not necessary that the Δ have the actual ability to carry out the threatened
contact.
c. Depending on the jurisdiction, a Δ could be subject to either criminal prosecution or
civil damages, or both.
i. Words alone cannot constitute assault, there must also be an act that a
reasonable person would find as an imminent apprehension of bodily
contact.
11. Cases:
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a. I de S et ux. v. W de S (hatchet at window, woman scared)

i. Rule: Doctrine of transferred intent (from trespass to property to assault)
allows an attempted battery on a house to be transferred to an assault of a
woman looking out its window.
ii. Assault in tort law is NOT an attempted battery, you can intend just to
persuade someone
b. Western Union Telegraph Co. v. Hill (clock; woman verbally assaulted)
i. Rule: Only threat of harm is necessary to constitute assault. Don’t have to
fear the contact, but feel that it is imminent.
ii. Assault requires only apprehension or anticipation of fear because it
intrudes on your emotional security
iii. Δ claimed he lack the apparent ability

D. FALSE IMPRISONMENT
1. Unlawful restraint through force or threat of force to confine someone to an area
2. Elements:
a. Intent
b. To cause
c. Confinement (actual or apparent barriers)
d. To a bounded area
3. Don’t have to ask to leave, can be an implied threat that one can’t leave; have to have actual
or physical barriers; one has to be aware that they are confined
4. There are several ways that confinement can occur:
a. Actual or apparent physical barriers
b. Overpowering physical force or submission to physical force
c. Submission by threat of physical force
d. Submission by threat of harm to another
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e. False Arrest
5. A false imprisonment claim is not taken away if the only means of escape would cause bodily
harm
6. In N.Y., awareness is a requirement, everywhere else it’s just harm.
7. Cases:
a. Big Town Nursing Home, Inc. v. Newman (∏ not allowed to leave nursing home)
i. Rule: False imprisonment exists when there is a direct restraint of one’s
physical liberty/or threat of without adequate legal justification.
ii. ∏ may request punitive damages if the act causing actual damages is a
wrongful act done in violation of their rights.
b. Parvi v. City of Kinston (drunk taken to golf course to dry out)
i. Rule: No liability for intentionally confining another unless the person
physically restrained knows of the confinement or is harmed by it.
c. Hardy v. Labelle’s Distributing Co. (employee coerced to office, then accused of
theft)
i. Rule: Moral persuasion is not enough to constitute false
imprisonment(force or threat of force), ∏ wanted to stay to clear name.
Restraint must be compelled.
d. Enright v. Groves (∏ taken to jail for not showing license; violation of leash law)
i. Rule: Conviction of a crime which one is specifically arrested for is a
complete defense to a subsequent claim of false arrest or imprisonment.
e. Whittaker v. Sandford (cult; boat ride back to America)
i. Rule: ∆ is guilty of false imprisonment if out of duty, promise to provide
transportation to America, he fails to provide a means to leave ship.

E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. One who, without privilege to do so, intentionally causes severe emotional distress to
another; liable for both emotional distress and any bodily harm resulting from it
2. Compensation is given because the assault to the person is the emotional harm
3. Intent exists when act is done with the purpose of causing distress or one has knowledge
that distress is substantially certain to follow
4. Elements:
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a. Intentional or reckless conduct

b. Extreme or outrageous conduct that is beyond bounds of human decency, atrocious
and utterly intolerable in a civilized society (∏’s sensitivities may be a factor in
determining this)
c. Causal connection between conduct and distress
d. Distress must be severe
e. Must show actual damages, not necessarily physical
f. What constitutes extreme and outrageous conduct is a function of the times
5. Notes from book:
a. States vary on the extent of emotional distress that needs to be present.
b. Intent to cause emotional distress can be intentional or reckless.
c. Many courts require the presence of the person claiming the emotional distress
during the act that caused the harm.
6. Cases:
a. State Rubbish Collectors Ass’n v. Siliznoff (trash collector; signed notes; threat of
beating)
i. Rule: One intentionally subjected another to mental distress without
intending to cause bodily harm, is nevertheless liable for the resulting
bodily harm if he should’ve foreseen that the mental distress may have
caused such harm.
b. Slocum v. Food Fair Stores of Florida (employee told customer they stunk)
i. Rule: Emotional distress must be severe to recover.
c. Harris v. Jones (stuttering GM employee teased by boss)
i. Rule: Action must be extreme or outrageous compared to the normal
surroundings and standards of society to recover. The vulnerabilities of
the ∏ must also be taken into effect.
d. Taylor v. Vallelunga (girl sees dad get beat up)
i. Rule: In order for 3rd party to recover from witnessing physical harm of
another, must prove that there was intent to cause distress to 3 rd party and
that distress to 3rd party was certain to follow from witnessing the physical
harm of another.

F. TRESPASS TO LAND
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1. Intentionally causing physical invasion (by person or thing) of another’s immovable property.
2. Don’t need actual damages
3. Trespass must be the result of a voluntary act (if someone trips and falls onto another’s land,
it is not a trespass)
4. A mistake is not a defense to trespass to land (if you do not know it’s there land, but
voluntarily enter)
5. Elements:
a. Intent
b. Physical invasion
c. Real property
6. Don’t need to show damages for a trespass to land claim; consequential damages can also
be recovered
7. Notes from book:
a. A privileged entry onto the land of another may be limited not on in time and space,
but also by purpose.
b. Damages from a trespasser need not be foreseeable to be compensable.
8. Cases:
a. Dougherty v. Stepp (∆ enters ∏’s unenclosed land to survey; property unharmed)
i. Rule: Actual damages aren’t required to be found liable for trespass (allows
∏ to protect his right to control land—action belongs to possessor).
b. Bradley v. American Smelting and Refining Co. (microscopic airborne particles)
i. Rule: When particulate matter, to recover for trespass on land must show
actual damages. Only type of trespass to land case where damages must
be proven (exception to intentional trespass when substantial damages are
required).
c. Herrin v. Sutherland (guy shoots duck across ∏’s land)
i. Rule: One’s property is considered to extend above and below the earth.
d. Rogers v. Board of Road Com’rs for Kent County (county fails to remove stake,
husband hits with tractor and dies)
i. Rule: Permission to trespass can be limited by scope and/or duration. After
consent is taken away, either verbally or by the completion or a consented
act, a trespass occurs if either ∆ or his things stay on the land.
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G. TRESPASS TO CHATTELS
1. The intentional interference with the right to use of personal property
2. Elements:
a. Intentional act
b. Causation
c. Interference with right to possess chattel
d. Actual damages
3. In order to prove trespass to chattels, must show that: (only need to prove one of three)
a. Chattel is impaired (condition, quality, or value)
b. Owner is denied use of chattel for a significant amount of time (ex: borrow
someone’s car and keep it for a week)
c. Bodily harm is caused to the possessor or harm is caused to the person or thing that
the possessor has a legally protected interest (ex: steal someone’s car)
4. MUST show actual damages to recover, either harm, dispossession for significant time or
complete dispossession
a. Can only recover for the damages suffered; actionable even if property is returned
b. Good faith and reasonable mistake do not relieve someone from responsibility or
act as a defense
5. Cases:
a. Glidden v. Szybiak (dog bites kid’s nose)
i. Rule: Must have actual damages to chattel to recover.
b. Compuserve v. Cyber Promotions, Inc.
i. Rule: Electronic signals sent via a computer are sufficiently tangible to form
the basis of a cause of action for trespass to chattels, and interference
therewith can be actionable.
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H. CONVERSION
1. Nature of the Tort
a. Restatement of Torts
i. §222A. What Constitutes Conversion
 Conversion is an intentional exercise of dominion or control over a
chattel which so seriously interferes with the right of another to
control it that the actor may justly be required to pay the other
for the full value of the chattel
 In determining the seriousness of the interference and the justice
of requiring the actor to pay the full value the following factors
are important:
1. the extent and duration of the actor’s exercise of
dominion or control;
2. the actor’s intent to assert a right in fact inconsistent
with the other’s right of control;
3. the actor’s good faith;
4. the extent and duration of the resulting interference with
the other’s right to control;
5. the harm done to the chattel;
6. the inconvenience and expense caused to the other
b. The ways in which an actor may convert a chattel include the following:
i. Acquiring possession of it (stealing the chattel)
ii. Damaging or altering it (intentionally running over an animal and killing it)
iii. Using it (a bailee seriously violates the terms of bailment)
iv. Receiving it (obtaining possession after a purchase from a thief)
v. Disposing of it (a bailee wrongfully sells the chattel)
vi. Misdelivering it (delivery to the wrong person so that chattel is lost)
vii. Refusing to surrender it (bailee refuses to return the chattel)
c. Exists only when damages to movable property are serious enough (significant
deprivation) to effect a forced sale to converter for entire value of property (can
recover for full value of property)
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d. It is more substantial and physical interference with a chattel than tort of trespass
to chattels
e. Hypos:
i. If A mistakenly takes B’s chattel and shortly thereafter returns it. Not
conversion because no harm is done
ii. Same facts, but A destroys the chattel. The deprivation is permanent
iii. If you purchase stolen property in good faith, this is acts of conversion on
both the buyer and seller because of the deprivation of the chattel
f. Cases:
i. Pearson v. Dodd (took papers from senators office; published articles with
info from papers)
 Rule: In order to recover for conversion must be deprived of use
of chattel or it must be subject to protection from conversion, i.e.,
literary property, scientific invention, secret plans for the conduct
of commerce, or instruments of commercial competition.
2. Effect of Good Faith
a. Good faith is not excuse or defense to conversion
b. An individual may be subject to liability for conversion although he was not
subjectively at fault. This can occur in at least 2 ways:
i. When Δ intends to affect the chattel in a manner inconsistent with the Π’s
right of control, the fact that he acted in good faith, and under a mistake,
does not prevent liability for conversion
ii. An innocent purchaser cannot obtain title from a thief. The purchaser acts
at her peril and may be sued for conversion by the true owner
iii. Because a bona fide purchase cuts off equitable rights, this right to rescind
for fraud it terminated when a bona fide purchaser acquires both title and
possession from the defrauding party
3. Necessity of Demand; Return of Chattel
a. Demand
i. In some states, possession by a bona fide purchaser or other innocent
converter is not in itself a sufficiently serious defiance of the owner’s
rights, and the possessor is liable only if refuses to return the goods on
demand. In most states, however, a conversion occurs as soon as the Δ
takes dominion and control over the goods in the manner inconsistent
with Π’s ownership. In these states, there may be a separate act of
conversion for an initial taking of possession and for a later refusal to
return on demand, and the owner can elect between them
b. Return
i. When a converter offers to return the converted goods and the owner
accepts, the return does not bar the action for conversion, but it must be
taken into account to reduce the damages recovered. If the chattel is in
the same condition as when it was taken, has not changed in value and the
Π has suffered no special damage through being deprived of possession,
the effect may be to reduce his recovery to nominal damages
4. Damages
a. The measure of damages for conversion is the value of the property converted
(market value—what the property could have been sold for in the open market by a
willing seller to a willing buyer)
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b. Market value is determined at the time and place of conversion

c. If there is no market value, other method may be used, such as manufacturing cost
less depreciation
d. Sometimes the property destroyed or damaged has little market worth, but has a
particular value to the owner. Damages cannot be recovered for sentiment alone,
but if a Δ’s conduct is outrageous, Π may be able to recover damages for emotional
harm suffered from the loss
e. Punitive damages may be allowed when the conversion was malicious but not when
it was done innocently
5. What may be converted
a. Anything that is capable of being lost and found (not land)
b. Therefore trees, minerals, crops or fixtures attached to land can not be converted.
However once there is a severance from the land, the goods become chattels and
they can be converted
c. There is permit to recover for conversion of intangible rights of a kind customarily
merged with a special instrument, such as those of a stockholder, without any
conversion of the stock itself
6. Who may maintain the action
a. Anyone in possession of the chattel at time of a conversion can maintain an action
for it, thus a finder can recover for conversion
b. Recovery is permitted even when possession is wrongful, and in defiance of the true
owner (one converter may recover from another)
c. One can recover without possession if they had the immediate right to the chattel

II. Privileges (Defenses to Intentional Torts)

A. CONSENT
1. If ∏ consents to ∆’s actions, even if unlawful, then ∆ acts under privilege.
2. Determined by outward manifestations of feelings (objective theory)
3. If there is no battery, then no liability and there is NO CONSENT
4. Elements of Implied consent:
a. Patient is unable to give consent (unconscious, intoxicated, mentally ill or
incompetent)
b. Risk of serious bodily harm if treatment is delayed
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c. A reasonable person would consent to treatment under the circumstances

d. Patient would consent to treatment under the circumstances if not incapacitated
5. Have to have consent to medically treat a person, even if it is to save their lives; if there is
time to get consent, then consent isn’t implied and will have a cause of action for battery
6. Consent can be nullified by fraud, duress, when goes beyond scope or an illegal activity.
7. Consent can be waived in situations that are dangerous or harmful.
8. Notes from book:
a. If during a sporting event, a player gets hurt, he can recover if it is shown that the
act was intentional and the conduct was outside the rules of the game.
b. If a person is tapped on the shoulder, no consent is necessary because there was no
battery. This is not a harmful or offensive contact under the reasonable person
standard.
c. A medical care provider may act in the absence of express consent if consent is
implied because treatment is necessary to prevent great bodily harm or death and
there is no time to get consent; if not, it is a battery.
d. Must seek parent’s consent for a child’s treatment if there is time.
e. Adults are entitled to bodily integrity, they can limit the extent of a surgery and any
attempt to go beyond this point without consent is battery by the surgeon.
f. A competent patient of sound mind can refuse medical treatment that would save
their life.
i. Every adult has bodily integrity
g. In a state where there are criminal penalties for having sex with a minor, consent of
the minor to sex is held to be ineffective.
h. Fraudulent concealment of fertility status or an STD can negate consent and the Π
can win in a battery action if Π can show the Δ knew of the condition. It would be a
negligence action if the Δ should have known
i. Consent can be implied by local custom
j. In the case of a minor child, consent of the parent is necessary for any medical
procedure, except in an emergency
k. Courts are likely to grant a hospital’s application to overrule the parent if the
treatment is for a life threatening condition, but not if it only will improve the
child’s comfort or appearance.
l. Depending on the jurisdiction:
i. The minority view is that consent to illegal activity is valid consent.
Restatement’s view- [Louisiana’s view]
 Exception: consent can be nullified if there is a statute to protect
certain classes of people (i.e, prize fighters, statutory rape victims)
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ii. The majority view is that consent to illegal activity is NOT valid consent
 If you choose to engage is an illegal activity and you hurt
someone, they could sue and you would be held liable
9. Cases:
a. O’Brien v. Cunard S.S. Co. (lady vaccinated against will)
i. Rule: Consent can be implied by conduct, doesn’t have to be expressed.
b. Hackbart v. Cincinnati Bengals, Inc. (severely injured football player)
i. Rule: With contact sports, when injury happens because of actions outside
the rules of game, consent isn’t considered to be implied.
c. Mohr v. Williams (doctor operated on left ear even though consent was for right
ear)
i. Rule: Consent can be waived if matter is life threatening or time sensitive.
Consent can be nullified when goes beyond scope of the consent. The fact
that the touching was beneficial does not negate the battery
ii. If the condition threatens seriously bodily harm or death, and there is no
time to get the consent from the patient, then there is an implied consent
d. DeMay v. Roberts (“assistant” brought into birthing room)
i. Rule: The misinterpretation or omission of a material fact negates any
consent given, even if the fact is found out after the event.

B. SELF DEFENSE** LeCesne said this will be on the exam

1. Very infrequent in tort law; therefore when occurs, criminal law rules are carried over and
applied without much variation
2. Existence of Privilege
a. Anyone is privileged to use reasonable force to defend himself against a threatened
battery on the part of another
b. Courts determine if warranted by the facts of the case
3. Retaliation
a. The privilege is one of defense against threatened battery, and not retaliation
b. When the battery is no longer threatened, the privilege terminates; and thereafter
the original victim himself becomes liable for battery
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c. Even if a person initially was an aggressor, once he has retreated, he has a right to
self-defense against the person he initially threatened
4. Reasonable Belief
a. The privilege exists when the Δ reasonably believes that force is necessary to
protect himself against the battery, even though there is in fact no necessity
5. Provocation
a. Insults, verbal threats or opprobrious language do not justify the exercise of self
defense
b. If the abusive words are accompanied by an actual threat of physical violence
reasonably warranting an apprehension of imminent bodily harm, one may be
privileged to defend
c. One does not have to wait for the first blow to fall before acting; when
accompanied by an overt hostile act, oral abuse may amount to a challenge to fight
and constitute consent
6. Amount of Force
a. The privilege is limited to the use of force that is or reasonably appears to be
necessary for protection against a threatened battery.
b. Differences in age, size and relative strength are proper considerations
c. To justify resistance with a deadly weapon, Δ must have a reasonable apprehension
of loss of life or great bodily injury
d. Generally, Δ has the burden of proving that the use of force was reasonable under
the circumstances, although some jurisdictions shift the burden to the Π if the Δ is a
police officer
7. Retreat
a. Δ may stand his ground and use any force short of that likely to cause serious injury
(minority rule). Majority rule says one may stand his ground even to death.
b. Rather than kill assailant or seriously wound him, Δ must retreat “to the wall”
c. A victim may use deadly force if there is the slightest doubt, if reasonable, that the
retreat can be safely made, and in determining whether his doubt is reasonable
every allowance must be made for the predicament in which his assailant has
placed him
8. Injury to Third Party
a. Ex: Δ, defending himself against A, unintentionally shoots B instead.
b. In this case the privilege of self defense is carried over, and the Δ is not held to be
liable to B in the absence of some negligence toward him
c. In determining whether there is negligence, the emergency and the necessity of
defense against A, are still to be considered
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C. DEFENSE OF OTHERS
1. Nature of Privilege
a. Privilege similar to that of self defense is recognized for the defense of third
persons
b. Early common law recognized privilege for a master of the household to defend
members of his family and servants against attack
i. Issue here is whether D used reasonable force in the circumstances
2. Reasonable Mistake
a. Some courts hold that the intervener steps into the shoes of the person he is
defending; and is privileged only when that person would be privileged to defend
himself;
i. if it turns out that he has intervened to help the aggressor, he is liable
b. Other courts hold that the Δ is privileged to use reasonable force to defend another
even when he is mistaken in his belief that intervention is necessary, so long as his
mistake is reasonable

D. DEFENSE OF PROPERTY
1. Can use reasonable force necessary under the circumstances as it appears to the Δ to defend
property
2. Can’t use excessive force—deadly force can never be used (however can use if safety of
person or family is threatened, ex: burglary at night)
3. In the case of a peaceful invasion, can use force after first asking trespasser to leave,
however the request does not need to be made if there is no time
4. Notes from book:
a. A person acts at his own peril in defending his property and will be liable if the
invader is on the land as a matter of right.
5. Cases:
a. Katko v. Briney (shot gun in farm house)
i. Rule: Deadly force can never be used to defend property, unless the
intrusion threatens death or serious bodily harm to the users or occupiers
of the premises. Mistake is no excuse. Human life outweighs property
rights
 You can use force that is reasonably necessary under the
circumstance, which is determined by the jury
Torts I Outline – LeCesne Page 18 of 35

E. RECOVERY OF PROPERTY
1. Can use reasonable force according to the circumstances to recover property immediately
after it is taken (fresh pursuit); any lapse of time destroys the privilege and then must resort
to law.
2. Cannot use force that inflicts serious bodily harm; limited to reasonable force under the
circumstances.
3. Shopkeepers are given privilege to conduct an investigation if they have reasonable belief of
a theft (must be for a reasonable amount of time and in a reasonable manner, privilege only
extends to false arrest, not slander)
4. “Unless otherwise agreed a secured party has on default the right to take possession of the
collateral. In taking possession a secured party may proceed without judicial process if this
can be done without breach of peace.” – UCC § 9-503
5. Cases:
a. Hodgeden v. Hubbard (fresh pursuit - stove bought on bad credit)
i. Rule: A person has the right to take back their property within a certain
amount of time and to use a reasonable amount of force after requesting
the possession be returned.
ii. This is an example of the “fresh pursuit” doctrine. A person has the right to
use force to recapture chattel in fresh pursuit. One is not entitled to use
deadly force or create a breach of the peace, however.
iii. Privilege is limited to reasonable force under the circumstances
b. Bonkowski v. Arlan’s Department Store (police stopped suspected shoplifter)
i. Rule: If store has reason to believe that shoplifting has occurred, there is
reasonable privilege to detain them for a reasonable investigation of the
facts; shopkeeper’s privilege.

F. NECESSITY
1. Public necessity provides privilege to abridge private rights if there is imminent danger;
relieves liability. Some jurisdictions may allow for compensation for damages caused by that
public necessity.
2. Private necessity does not relieve trespasser of liability.
3. Cases:
a. Surocco v. Geary (∏’s house blown up to save burning neighborhood)
i. Rule: There is no duty to provide compensation to a person whose
property was destroyed as a result of privilege of public necessity.
ii. As long as the city acted reasonably to protect the public, they will not be
held liable for damages
b. Vincent v. Lake Erie Transp. Co. (∆’s boat docked on someone else’s property during
storm)
Torts I Outline – LeCesne Page 19 of 35

i. Rule: One is allowed to take actions necessary to survive (private necessity)

however they are liable for damages.

G. JUSTIFICATION
1. A person in a position of authority can use reasonable restraint or detention of those in
one’s lawful custody to prevent harm or damage to others or to property.
2. Circumstances may arise where one’s otherwise illegal acts are legally justified.
3. Case:
a. Sindle v. New York Transit Authority (kid on school bus that was vandalized)
i. Rule: ∆’s actions to restrain others were justified since they were
reasonable to protect others or property from injury; not liable.
IV. Negligence
A. History
1. Negligence is an unintentional tort
B. Elements of Cause of Action (determined by a preponderance of the evidence)
1. Negligence is a breach of duty to use reasonable care causing damage to another.
a. Elements (must meet all to be held liable):
i. Duty
 have a duty to act as a reasonably prudent person under average
circumstances; duty to use reasonable care (statute can define
what duty is)
ii. Breach
 breach of that duty; must act with the parameters of the standard
of care with in the circumstances; a failure to conform to the
required standards (see factors below)
iii. Causation
 a reasonably close causal connection between the conduct and
the resulting injury
 In fact
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o whether the Δ’s negligent conduct is the factual

cause of the Π’s injury (but for Δ’s breach of
duty, Π would not have been injured)
 Proximate cause
o Δ had a reasonably foreseeable risk of the
action; must decide whether or not to impose
liability on Δ who it is proven through a
negligent act caused the Π’s injury
iv. Damage
 actual loss or damage resulting have to the interest of another;
proof of damage is essential to Π’s case; can’t recover if there are
no actual damages; however if Δ’s risk-creating negligent conduct
threatens but doesn’t harm Π, he may be able to obtain an
injunction and stop the activity as a nuisance
C. A Negligence Formula
1. There are a range of possible risks associated with any conduct; juries will look at this to
determine negligence in a certain circumstance
2. Factors of Negligence (within breach, next look to factors)
a. Likelihood of harm
i. How likely is it that harm will occur? (H/L)
b. Gravity of harm
i. How bad will harm be if it happens? (H/L)
c. Social utility of Δ’s conduct
i. Benefit of action or object to society (H/L)
d. Burden prevention
i. What would it take to minimize or reduce the harm? (H/L)
3. A court or jury will balance the 4 factors to determine what a reasonable person could do or
should have done under the circumstances presented
4. A Δ may assert the affirmative defense of contributory negligence, claiming the Π’s conduct
was negligent and that the Π’s negligent conduct also contributed to the cause of Π’s injuries
a. In Louisiana comparative fault reduces the amount of the award to the Π based on
the percentage of harm attributed to the Π
5. The standard of reasonable care applies to all parties in a particular case (both Π and Δ)
6. Notes from book:
Torts I Outline – LeCesne Page 21 of 35

a. With the operation of machinery, such as planes, trains, automobiles and

snowmobiles, containing risks, juries will decide whether the risk is a reasonable
one under the circumstances.
7. Cases:
a. Lubitz v. Wells (kid hits another with golf club)
i. Rule: In order to be liable, object left on ground must be intrinsically
dangerous that it is unreasonable and negligent to leave it lying around;
golf club is not unreasonable to leave lying around.
b. Blyth v. Birmingham Waterworks Co. (busted pipes from freeze)
i. Rule: Cannot be negligent for actions resulting in extreme circumstances
that a reasonable person would not have foreseen.
c. Gulf Refining Co. v. Williams (faulty gas cap container)
i. Rule: Each person has the duty of care to reasonably anticipate
consequences of their actions.
d. Chicago, B. & Q.R. Co. v. Krayenbuhl (no lock on railroad turntable)
i. Rule: If danger outweighs the cost and inconvenience of making something
safe, precautions should then be taken to minimize risk of harm.
e. Davison v. Snohomish County (driver lost control of car and broke through bridge
railing, falling to ground)
i. Rule: If burden of prevention is too high with respect to the likelihood of
harm, action does not need to be taken to minimize harm—cost/benefit
analysis.
f. United States v. Carroll Towing Co. (tug hits tanker; flour leaks out, then sinks)
i. Rule: The test for negligence is the same whether applied to the ∏ or ∆. ∏
also has a standard of care, if found to not have used care, will also be
responsible for part of damages.
8. Restatement of Torts
a. §291. Unreasonableness; How Determined; Magnitude of Risk and Utility of
Conduct
i. When an act is one which a reasonable man would recognize as involving a
risk of harm to another, the risk is unreasonable and the act is negligent if
the risk is of such a magnitude as to outweigh what the law regards as the
utility of the act or of the particular manner in which it is done
b. §292. Factors Considered in Determining Utility of Actor’s Conduct
i. In determining what the law regards as the utility of the actor’s conduct for
the purpose of determining whether the actor is negligent, the following
factors are important:
 the social value which the law attaches to the interest which is to
be advanced or protected by the conduct;
 the extent of the chance that this interest will be advanced or
protected by the particular course of conduct;
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 the extent of the chance that such interest can be adequately

advanced or protected by another and less dangerous course of
conduct
c. §293. Factors Considered in Determining Magnitude of Risk
i. In determining the magnitude of the risk for the purpose of determining
whether the actor is negligent, the following factors are important:
 the social value which the law attaches to the interests which are
imperiled;
 the extent of the chance that the actor’s conduct will cause an
invasion of any interest of the other or of one of a class of which
the other is a member;
 the extent of the harm likely to be caused to the interests
imperiled;
 the number of persons whose interests are likely to be invaded if
the risk takes effect in harm

D. The Standard of Care

1. The Reasonable Prudent Person
a. This is a question of fact for the jury to decide; custom can be a starting point
b. Notes from book:
i. While custom is evidence of what can be done, it is not conclusive of what
should be done.
ii. There are certain circumstances where one is required to anticipate an
emergency such as when driving past a school and a child comes darting
out into the street.
iii. More may be required of a child of superior intelligence; some courts set
arbitrary age limits.
iv. In most jurisdictions, the general rule is that mentally-able adults are held
liable for their actions regardless of their ability to comprehend.
v. A person under the influence of drugs are alcohol is held to a reasonable
person standard with no exceptions.
c. Cases:
i. Vaughan v. Menlove (hayrick exploded, caused neighbor’s house to burn)
 Rule: Acting in good faith doesn’t relieve one of negligence if not
acting as a reasonably prudent person; test is what a reasonable
person would do in the circumstance, not what ∆ would have
done.
ii. Delair v. McAdoo (bald tires caused accident)
Torts I Outline – LeCesne Page 23 of 35

 Rule: A reasonably prudent person operating a vehicle should

know of all physical defects and will be held liable for proceeding
to drive with a defect that causes harm to another.
iii. Trimarco v. Klein (glass shower door breaks)
 Rule: A custom can be evidence of what a reasonable person
would do under the circumstance, but not conclusive. Custom
can give the jury a point of reference to make decision.
iv. Cordas v. Peerless Transportation Co. (lady hit by hijacked cab)
 Rule: The standard of care in an emergency is determined by
whether the action is proportionate to circumstances involved. If
under normal circumstances an act would be considered
negligent, if may not be considered so if the person is acting
under an emergency, not of his own making, where he is suddenly
faced with patent danger with very little time to react. However,
if you create an emergency, you are liable for the accident you
caused.
v. Roberts v. State of Louisiana (blind man trips man at post office)
 Rule: A person with a physical disability is measured by the
standard of care for a reasonable prudent person with the same
disability.
vi. Robinson v. Lindsay (kid driving snowmobile; passenger gets hurt)
 Rule: The standard of care for a minor is evaluated by the
reasonable standard of a minor of like age, intelligence and
experience unless they are engaging in adult or dangerous
activity, then standard is that of an adult.
vii. Breunig v. American Family Ins. Co. (lady thought she could fly; drove car
into another)
 Rule: Mental disability is not an excuse for negligence. Some
states make exceptions if person did not know they were crazy by
showing that the insanity affected their: (1) ability to understand
and appreciate the duty or (2) ability to control car in a prudent
manner.
2. The Professional
a. Notes from book:
i. The standard of care for specialists in a profession holding themselves out
to have higher skills is modified; they are held to a higher standard.
ii. The standard of care is not modified for professionals providing their
services pro-bono; they are held to the same duty of care whether being
paid or not.
iii. Disclosure by physicians to patients for procedures: reasonable physician
test, a physician must disclose those risks which a reasonable prudent
physician would disclose under the circumstances; and reasonable patient
test, information that a reasonably prudent patient would need to know in
order to make a determination on consent.
b. Cases:
i. Heath v. Swift Wings, Inc. (pilot crashes plane; kills family)
 Rule: Standard of care is not affected by the training a person has.
Professional standard of care is objective according to the
knowledge, training and skill of an ordinary member of the
profession in good standing.
ii. Hodges v. Carter (attorney failed to personal serve company; acted
according to custom)
Torts I Outline – LeCesne Page 24 of 35

 Rule: An attorney engaging in practice implies that he has the

requisite degree of learning, skill and ability necessary to practice
his profession. If he acts in good faith and in the honest belief
that his advice and acts are well founded and in the best interest
of his client, he is not negligent for a mere error in judgment or
for a mistake in point of law not settled by the highest court of the
state.
iii. Boyce v. Brown (doctor failed to x-ray fractured ankle)
 Rule: A licensed medical practitioner is presumed to possess the
degree of medical skill and practice that is possessed by the
average member of the medical profession in good standing with
the community in which he practices, and to apply that skill and
learning with ordinary and reasonable care to cases which come
to him for treatment, and if he does not possess that skill and
learning, or does not apply it, he is guilty of malpractice. Evidence
of malpractice must be established by expert testimony unless it is
obvious even to a lay person.
iv. Morrison v. MacNamara (UTI test done by lab while patient was standing)
 Rule: 3 standards of care: strict locality, standards in locality or
community; geographical boundary, standards in similar
communities in similar circumstances; and national, according to
national standards. If a lab/doctor is nationally certified, must use
national standard of care.
v. Scott v. Bradford (doctor didn’t inform of material risks, therefore gained
consent through fraud)
 Rule: Oklahoma uses patient-focused test for informed consent
malpractice—what would a reasonable person want to know
before consenting to test? Other states use physician-focused
test or reasonable person test—what a reasonable physician
would do when disclosing information.
vi. Moore v. The Regents of the University of CA (doctor failed to tell patient
he was using cells from spleen for research)
 Rule: A physician must disclose personal interests, economic or
research-related, unrelated to the patient’s health that may affect
the physician’s judgment; failure to disclose the interests may give
rise to cause of action for lack of informed consent or breach of
fiduciary duty.

E. Rules of Law (may determine what a person should do)

1. An applicable statute satisfies 2 of the 4 negligence elements(duty & breach)
2. With a statute, based on the facts of the case:
a. Determine the class of persons the statute is trying to protect—is the injured
person a member of that class?
b. Were they injured by a hazard that the legislature was trying to protect against?
3. A statute doesn’t have to be used in place of the reasonable person test; if a statute doesn’t
apply, use the reasonable person test
4. Statutes are unenforceable because of technical or procedural deficiencies
5. Case:
a. Pokora v. Wabash Ry. Co. (∏ approached railway, didn’t hear/see anything, crossed
and was hit)
I. Rule: Rules of law shouldn’t be mechanically applied to every situation;
different situations require different levels of precaution; level is for jury to
decide.
Torts I Outline – LeCesne Page 25 of 35

F. Violation of the Statute

1. Violation of a statute is negligence per se—as a matter of law, you had a duty and you
breached it
2. With negligence per se, skip duty & breach (b/c already established by statute) and go on to
causation & damages
3. Notes from book:
a. There are times when the rule of law does not apply because of exceptional
circumstances—consistent with Cordozo’s view.
4. Case:
a. Osborne v. McMasters (unlabeled bottle of poison sold, consumed by ∏, who died)
i. Rule: An applicable statute establishes what the standard of care is; used
over reasonable person standard. If statute is violated, standard is not met
and negligence exists.
5. Applicability of the Statute
a. Cases:
i. Stachniewicz v. Mar-Cam Corp. (barroom brawl in state where there is a
statute against serving intoxicated persons)
 Rule: To determine whether statute is applicable must prove that
(1) party seeking to prove violation is a member of the class of
persons that the statute is trying to protect; and (2) the hazard
that occurred was one that the legislature intended to prevent
with the statute. If successful in proving, court must then decide
whether it is appropriate to impose liability for violation of the
statute.
ii. Ney v. Yellow Cab Co. (thief stole cab and crashed into another car, statute
says can’t get out of car and leave running)
 Rule: As long as part of statute is to protect this class of persons
from this type of act then that part of statute can be applied and
rest can be disregarded.
iii. Perry v. S.N. and S.N. (daycare owner sexually assaulted kids; ∆’s knew of
acts and did not report; statue says you must report child abuse)
 Rule: As a matter of law, there is no preexisting duty to warn
someone about criminal acts or intentions of a 3rd party on
another.
6. Effect of Statute
a. In a rebuttable jurisdiction, violation of a statute is prime facie evidence of
negligence, but it can be rebutted or overcome by presenting evidence sufficient
(unequivocal, strong & credible) to rebut the presumption
b. Notes from book:
i. Violation of a statute is excused when: it is reasonable because of the
actor’s incapacity; he neither knows or should have known of the occasion
for compliance; he is unable after reasonable diligence or care to comply;
he is confronted by an emergency not due to his own misconduct;
compliance would involve a greater risk of harm to the actor or others.
ii. Compliance with a statute is never reasonable care per se.
c. Cases:
Torts I Outline – LeCesne Page 26 of 35

i. Martin v. Herzog (couple in buggy without lights are hit by car)

 Rule: There must be a causal connection between the violation of
the statute and the accident to find negligence. Majority rule—
when a statute applies to the facts, an unexpected violation is
negligence per se which must be declared by the court and not
left to the jury. Minority rule—a violation is only evidence of
negligence which the jury may reject or accept as they see fit.
ii. Zeni v. Anderson (woman hit on snowy day when walking on path, instead
of sidewalk)
 Rule: When the court adopts a penal statute as the standard of
care in an action for negligence, violation of that statute
establishes a prime facie case of negligence it can be rebutted or
overcome by presenting sufficient evidence. If it is determined
that a sufficient excuse exists, the appropriate standard then
becomes that established by the common law.

G. Proof of Negligence
There are 3 types of evidence: direct, circumstantial and res ipsa loquitur (none)
1. Court and Jury: Circumstantial Evidence
a. Cases:
i. Goddard v. Boston & Maine R.R. Co. (fell on banana; no proof of
how long it had been there)
 Rule: There must be evidence of sufficient notice of a
dangerous condition so that the operator can have a
reasonable amount of time to fix the dangerous
condition; here no direct evidence.
ii. Anjou v. Boston Elevated Railway Co. (lady tripped on banana
peel, peel was black and flat, indicating it had been there for a
while)
 Rule: There was circumstantial evidence(which is
nothing more than one or more inferences which may
be said to arise reasonably from a series of proven
facts) to prove that a dangerous condition existed for
some time and should have been attended to before
someone was injured.
iii. Joye v. Great Atlantic and Pacific Tea Co. (slipped on banana peel
in grocery store)
 Rule: Must be evidence of sufficient notice of a
dangerous condition; was circumstantial evidence but
not sufficient.
 If by exercise of reasonable care, the owner would have
discovered the condition, he is liable for failing to correct
it.
iv. Jasko v. F.W. Woolworth Co. (slipped on pizza; pizza served on
waxed paper where people stood around to eat it)
 Rule: When the operating methods of a proprietor are
such that dangerous conditions are continuous or easily
foreseeable, the basis for the notice requirement
disappears; actual or constructive notice of the
dangerous condition need not be proved.
v. H.E. Butt Groc. Co. v. Resendez (slipped on grapes around a
sampling display)
Torts I Outline – LeCesne Page 27 of 35

 Rule: To recover, Π must prove

1. Δ had actual or constructive knowledge of a
condition on the premises
2. the condition posed an unreasonable risk of
harm
3. Δ did not exercise reasonable care to reduce or
to eliminate the risk, and
4. Δ’s failure to use such care proximately caused
Π’s injuries
2. Res Ipsa Loquitur (“the thing speaks for itself”)(no evidence)
a. It provides the injured ∏ with a common-sense inference of negligence
where direct proof of negligence is wanting, providing certain elements
consistent with negligent behavior are present, rarely used
b. 2-fold requirement to meet res ipsa:
i. Whatever agency caused harm, Δ was in exclusive control of it
ii. Event doesn’t happen in the absence of negligence
c. If requirements are met, procedural effects must be analyzed. Procedural
effects res ipsa has on a case (3 treatments, vary by state):
i. Warrants an inference of negligence
ii. Raises a presumption of negligence which Δ must rebut or lose
iii. Not only raises a presumption, but shifts burden of proof to the
Δ
d. Doesn’t apply to multiple Δ’s (Ybarra is the exception)
e. With res ipsa, Π doesn’t have to eliminate or rebut speculative possibilities,
but it is Δ’s job to raise these possibilities.
f. Cases:
i. Byrne v. Boadle (barrel of flour fell on Π’s head when walking
underneath shop window)
 Rule: To prove res ipsa loquitur, must prove: (1) Δ was in
exclusive control of agency that caused harm; and (2) the
accident was one that would not ordinarily happen in the
course of ordinary events except in the case of
negligence by the Δ.
ii. McDougald v. Perry (car harmed when spare tire fell from moving
truck—wayward wheel case)
 Rule: To prove res ipsa loquitur, must prove: (1) Δ was in
exclusive control of agency that caused harm; and (2) the
accident was one that would not ordinarily happen in the
course of ordinary events except in the case of
negligence by the Δ. It is Π’s job to prove res ipsa.
iii. Larson v. St. Francis Hotel (struck by arm chair thrown out of hotel
window)
 Rule: Res ipsa doesn’t apply because hotels cannot be
held in control over their guest to be sure that they do
not harm 3rd parties through their actions.
Torts I Outline – LeCesne Page 28 of 35

iv. Ybarra v. Spangard (Π operated for appendicitis, came out with

pain in arm and lost use of it; sued all involved in surgery)
 Rule: Only applies where there is exclusivity of control.
Where a Π receives unusual injuries while unconscious
and in the course of medical treatment, all those ∆’s who
had any control over his body or instrumentalities which
might have caused the injuries may be called upon to
meet the inference of negligence by giving an
explanation of their conduct. Where there is more than
one Δ, the burden of proof shifts to the Δ’s to exculpate
themselves.
v. Sullivan v. Crabtree (passenger in truck dies in accident where
vehicle left the road and overturned)
 Rule: There are 3 different procedural effects from res
ipsa: (1) warrants an inference of negligence which jury
may draw from; (2) raises presumption of negligence
which requires jury to find negligence if Δ does not
produce evidence sufficient to rebut the presumption; (3)
raises presumption, but also shifts the ultimate burden of
proof to the Δ to rebut the presumption sufficiently with
the preponderance of the evidence.
 The only generalization that can be safely made is that, in
the words of the definition of res ipsa loquitor, it affords
“reasonable evidence,” in the absence of a explanation
by Δ, that the accident arose from this negligence.

IV. Causation in Fact

A. Sine Qua Non (“without which not”)
1. “But for” causation—but for Δ’s action, Π wouldn’t have been harmed
2. For non-concurrent causation
3. Case:
a. Perkins v. Texas and New Orleans Ry. Co. (man hit by train because of
obstruction at stop sign; train going 12 miles over speed limit)
i. Rule: Negligent conduct must be what directly caused the injury;
but/for doesn’t apply here. Π must prove the Δ did not act as a
reasonably prudent person, and that the injury was directly
caused by the Δ’s negligence.
ii. The railroad had a duty, and breached it by goin 12 mph over the
speed limit
iii. The Π didn’t win bc even if the train was going the speed limit,
there was not enough time to prevent the collision
B. Proof of Causation
1. Cases:
a. Gentry v. Douglas Hereford Ranch, Inc. (man shot and killed wife’s friend
after tripping on step)
i. Rule: Negligence must be proven to be the direct cause of the
accident by a preponderance of the evidence.
b. Reynolds v. Texas & Pac. Ry. Co. (woman slipped and fell down unlit stairs
without a handrail)
i. Rule: Where Δ’s negligent conduct increases the likelihood of
harm, the fact that the accident might have happened even in the
absence of negligent conduct, is not enough to break the cause
and effect sequence.
Torts I Outline – LeCesne Page 29 of 35

c. Kramer Service, Inc. v. Wilkins (man cut head when broken glass from
transom; later developed cancer on spot of injury)
i. Rule: It is not enough that the negligence of one person and the
injury to another co-existed, the injury must have been more
likely than not caused by the negligence. Where issue goes
beyond the knowledge of laymen, courts and juries must depend
on the undisputed testimony of reputable specialists.
d. Wilder v. Eberhart (∏ developed problems after surgeon stapled her
stomach)
i. Rule: ∏ must prove causation that injury more likely than not was
caused by ∆’s negligence. ∆, in order to avoid liability, must
produce credible evidence that which discredits or rebuts the ∏’s
evidence. He need not prove another cause only convince the
jury that the alleged negligence was not the legal cause of the
injury. He may produce other possible causes that don’t have to
be right, only probable
e. Herskovits v. Group Health Cooperative of Puget Sound(Π claimed
reduction in chance of survival b/c of delayed diagnosis
i. Exception when under 51%: some states allow Π’s to recover for
loss of “chance of survival” – it is very difficult to put a value on
lost chance, this is a problem many courts face.
ii. Rule: under certain circumstances the Π may be able to recover
for the lost chance of survival if the loss is significant enough
C. Concurrent Causes
1. Conduct combines to cause injury where neither cause alone would have been
sufficient, or either alone would have been sufficient. (see Hill v. Edmonds)
2. To prove cause in fact (*most important):
a. *But/for causation
i. when separate acts of negligence combine, each tortfeasor is
liable even if injury wouldn’t have happened without the action;
or
b. *Substantial factor
i. when but/for fails, both sources are liable as long as either was a
substantial factor to the injury—was ∆’s action a substantial factor
in causing Π’s harm? (see Anderson v. Minneapolis); or
c. *Alternative theory of liability
i. each ∆ has more probably than not to be but/for cause of the
injury, shifts burden to ∆’s to show that his individual act could
not have caused the injury; all ∆’s must be before the court (see
Summers v. Tice)
d. Enterprise liability theory
i. when there is no way of knowing which company made the
product, 2 requirements: (1) small number of ∆’s that make up
entire industry and are named in suit, and (2) all conspired
together to make identification difficult (see Hall in Sindell
opinion)
e. Market share liability
i. ∆ is held liable for the % of market share held as long as the
named ∆’s control a majority of the market share (DES in Sindell)
f. ON AN EXAM:
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i. Start w/ but/for causation

ii. Then move to substantial factor test when but/for does not
work
iii. Then say why using c,d,e
3. Cases:
a. Hill v. Edmonds (guy leaves tractor in middle of road, although lady sees it,
she still runs into it)
i. Rule: Where separate acts of negligence combine to produce
directly a single injury each tortfeasor is responsible for the entire
result, even though his act alone might not have caused it.
b. Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. (forest fire caused by ∆
merged with another fire and burned down ∏’s house)
i. Rule: Substantial factor test is used to determine whether both
∆’s actions were a substantial in causing the harm; both parties
are liable as long as both were a substantial factor. Can’t say
but/for b/c either could have caused the house to burn down.
D. Problems in Determining Which Party Caused the Harm
1. Cases:
a. Summers v. Tice (both ∆’s shot at deer and accidentally shot ∏; impossible
to tell which bullet hit ∏)
i. Rule: where both Δ’s acted negligently but only one caused injury,
in order to relieve the ∏ of choosing one of the ∆’s, burden shifts
to the ∆’s to prove they are not the guilty party, and if neither can
prove they weren’t negligent, then both are liable to the Π.
ii. Δ’s are not join tortfeasors because only one caused the harm
iii. Δ must prove that his negligence did not cause the Π’s injury
iv. Compare to Ybarra, wher court thought the Δ’s knew which one
was negligent and just weren’t talking. However in Summers,
where there are 2 persons, and you cannot determine, which was
the cause…the are each as probable of a cause 50/50
v. When there is more than 2 Δ’s they are not equally probably liable
33.3%
b. Sindell v. Abbott Laboratories (woman wanted to sue all labs that made
DES since she got cancer from her mother taking it when pregnant)
i. Rule: In order to apply Summers, all ∆’s must be before the court.
Burden shifts to ∆’s, if they can’t prove their innocence, each is
liable for their share of the damages relative to their share of the
market—market share theory. Where there is a relatively small
industry and all adhere to an industry wide standard and jointly
control the risk to which ∏ was exposed (like Hall), all can be held
liable—enterprise theory.
VI. Proximate or Legal Cause
A. Proximate cause is any cause which in the natural and continuous sequence, unbroken by an
efficient intervening cause, produces the result complained of and without which the result
would not have occurred.
1. Legal doctrine used by courts to decide whether or not to cut off liability to Δ whose
negligent act caused Π’s harm—would it be fair and just to make this Δ pay for the
harm that his negligent act caused?
Torts I Outline – LeCesne Page 31 of 35

a. A court will cut off liability if the harm of the negligent act was
unforeseeable and it would be unfair to hold the Δ liable for the
subsequent harms
b. A court will cut off liability if an intervening cause is found to have actually
caused the harm, therefore the Δ is not held liable
2. There may be more than one proximate cause of an injury.
3. Cause in fact v. Proximate Cause
a. Cause in fact
i. The Δ’s conduct is a cause of the event if the event would not
have occurred but for that conduct
b. Proximate Cause
i. Concerns a determination of whether legal liability should be
imposed where cause in fact has been established
B. Unforeseeable Consequences
1. Unforeseeability focuses on whether the ∆ could have reasonably foreseen the
result or the type of harm. The precise manor in which the harm occurs does not
have to be foreseeable and there can’t be any superseding intervening act.
2. A negligent actor is legally responsible for that harm, and only that harm, of which
the negligent aspect of his conduct is a cause in fact.
3. There are 4 major approaches to proximate cause (*must go through all 4):
a. Direct/Indirect Injury Distinction
i. ∆ is responsible (proximate cause) for all direct injury caused by
the negligent act as long as the harm is foreseeable, it can be
traced to the negligent act, and there was no intervening or
superseding causes (see Polemis).
 Type of harm is not important, as long as some kind of
harm can be foreseen.
b. Reasonable Foreseeability of Type of Harm
i. No proximate cause unless the ∆ can foresee the type of damage
from his action, not just that some damage would occur (see
Wagon Mound #1) – must foresee that type of damage
 A reasonable man would foresee type of harm and
prevented the risk therefore one is liable for foreseeing
the type of harm and not preventing the risks.
 Elements (like Learned Hand with breach of duty):
1. Burden of precautions
2. Probability of event happening
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3. Gravity of the injury or Loss

a. Liability depends on whether B < PL
 If B < PL, liability
 If B > PL, no liability
c. Cardozo Approach
i. Proximate cause extends liability to those whose conduct harms
persons within the zone of the reasonably foreseeable ∏ (see
Paslgraf opinion).
 Elements:
1. reasonably foreseeable ∏
2. reasonably foreseeable harm
3. ∏ is in the zone of danger
d. Andrews Approach
i. Extends liability (proximate cause) to all persons who are harmed
from an unbroken sequence of events caused by ∆ with no
intervening or superseding acts (see Palsgraf dissent).
ii. Factors: (pg. 314)
 Was there a natural and continuous sequence between
cause and effect?
 Was the one a substantial factor in producing the other?
 Was there a direct connection between them, without
too many intervening causes?
 Is the effect of cause on result not too attenuated?
 Is the cause likely, in usual judgment, to produce the
result?
 By exercise of prudent foresight, could the result be
foreseen?
 Is the result too remote from the cause?
iii. Cases:
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 Ryan v. New York Central R.R. Co. (railroad caused fire to

a woodshed and it spread to house 130 feet away)
1. Rule: ∆’s are not liable for unforeseeable
damages caused by their conduct, but this varies
by jurisdiction.
 Bartolone v. Jeckovich (man in wreck; got whiplash;
suffered mental breakdown because he couldn’t work)
1. Rule: ∆ is liable for all the consequences flowing
from a physical injury, caused by the negligent
conduct, whether or not foreseeable; “take your
victim as you find them.” It is foreseeable that
you may injure someone with a pre-existing
condition and you are responsible for those
damages. (Thin Skull Doctrine—responsible for
the unforeseen consequences of an physical
injury to the Π; some courts apply it only to pre-
existing physical conditions. Ie. Not for mental
illness or religious belief).
2. APPROACHES TO ESTABLISHING PROXIMATE
CAUSE:
3. In Re Arbitration Between Polemis and Furness
Withy & Co., Ltd. (plank dropped on ship caused
spark that set ship on fire)
a. Rule: Case of direct/indirect injury
distinction. ∆ liable because it was
reasonably foreseeable that some kind
of damage would directly occur from
his negligent act of dropping a plank as
long as some harm is forseeable, does
not matter that fire damage wasn’t
foreseen.
4. Overseas Tankership Ltd. v. Morts Dock &
Engineering Co., Ltd. (Wagon Mound #1) (dock
set on fire from oil from tanker workers and
molten iron from dock workers; for dock
damages)
a. Rule: Found direct/indirect injury
distinction lacking—overruled Polemis
because deals with type of harm, but
not Thin Skull Doctrine, which deals
with consequences of harm still applies.
It is not enough for ∆ to anticipate
some damage, as in Polemis. ∆ must
foresee the type of harm caused to
have proximate cause (Reasonable
Foreseeability Test), which is an
objective test. While ∆ could foresee
some damage, not the type that
happened, fire.
5. Overseas Tankership Ltd. v. Miller Steamship Co.
(Wagon Mound #2) (dock set on fire from oil
from tanker workers and molten iron from dock
workers; for damages to 2 boats)
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a. Rule: Reasonable forseeability test

requires that the ∆ must foresee the
type of harm caused by the act for
proximate cause to attach. ∏’s were
able to emphasize the foreseeability of
the type of damage that might occur
(fire). In #1, ∏’s couldn’t focus
attention on type of damage because it
would draw attention to their own
negligent behavior.
6. Palsgraf v. Long Island R.R. Co. (man getting into
train is helped up; drops package with fireworks;
explosion causes scale to fall and hit woman)
a. Rule: Cordozo approach says that a ∆ is
liable to the reasonably foreseeable ∏
within the zone of danger whose harm
can be reasonably foreseen as a result
of the ∆’s conduct. Type of harm was
not reasonably foreseeable because ∏
was not in the zone of danger; too
remote to have been proximate cause
of injury.
7. Yun v. Ford Motor Co. (man gets hit by car while
trying to pick up spare tire from side of highway)
a. Rule: Sometimes the issue of proximate
cause is held to be so intertwined with
issues of policy that it is treated as a
matter or law for the court to decide
rather than a question of fact for the
jury. The court acted as a gatekeeper
since it was obvious that the harm was
not foreseeable because of the 2
superseding and intervening causes,
not fixing the spare tire and going into
traffic to get the spare.
C. Intervening Causes
1. Whether the act of a third person intervenes and supersedes the original negligence
depends on whether the injury was of a standard foreseeable consequence or
something completely unforeseeable and independent related to the original
negligence.
2. Cases:
a. Derdiarian v. Felix Contracting Corp. (car drives into an unprotected
construction site; man burned)
i. Rule: Contractor’s failure to secure site caused injury, not why
someone entered into the site.
ii. Proximate cause doesn’t exist if there are intervening causes that
actually cause the harm to happen. The test to determine if the
act is superseding or intervening
iii. If the result of the act is a normal, foreseeable consequence of
the situation created by the ∆’s negligence, then the act is not
intervening or superseding and does not break the causal link.
Torts I Outline – LeCesne Page 35 of 35

iv. If the result of the act is extraordinary, not foreseeable in the

normal course of events or independent of or far removed from
the ∆’s conduct, then the act is intervening or superseding and
does break the causal link.
b. Watson v. Kentucky & Indiana Bridge & R.R. Co. (train leaked gas, man lit
match igniting gas)
i. Rule: The intentional criminal act of a third party is generally not
something that the ∆ is responsible for or must anticipate because
it is extraordinary (intervening/superseding). Exceptions to this
rule where ∆ is responsible for intervening criminal acts of a third
party include: when ∆ has a contract duty to protect; ∆’s
affirmative act destroys or defeats protection that ∏ has placed
around his person or property; ∆ brings ∏ into association with a
person he knows to be a criminal; where ∆ fails to restrain a
dangerous criminal that he has taken custody of; and with minors
committing intentional acts that ∆ should foresee as causing
danger.
ii. It is a question of fact for the jury whether the action of the third
party was negligent/inadvertent or malicious/wanton. If third
party negligently lit match, then ∆ is liable; if the third party
maliciously lit the match, ∆ is not liable because an intervening
criminal act in not foreseeable.
c. McCoy v. American Suzuki Motor Corp. (rescuer asked to put out flares,
instead directs traffic and gets hit by car)
i. Rule: The Rescue Doctrine—allows an injured rescuer to sue the
party which caused the danger requiring the rescue in the first
place; applies to product liability cases. Doctrine serves: to give
notice to tortfeasors that they are liable to not only the person
they are harming but also their rescuer and to negate the
assumption of risk on the part of the rescuer as long as they were
not rash. There is a 4-part test to achieve the rescuer status: 1) ∆
was negligence to the person rescued and the negligence caused
peril; 2) the peril or its appearance was imminent; 3) a
reasonable person would have thought that peril existed; and 4)
rescuer acted with reasonable care in the rescue. To recover, the
rescuer must show that the ∆’s negligence proximately caused the
injuries, not just danger that subsequently caused the injuries.
ii. At present, defect of car did not cause ∏’s injury.