TORT OUTLINE

The three policy goals of torts are (1) to compensate victims of accidents; (2) to allocate liability fairly
among the responsible parties; and (3) to minimize the cost of accidents, of avoiding accidents, and of
administering the tort system.

I. Intentional Interference with Person or Property

1. Intent: a) Knowledge or substantial certainty that harm will occur
 Substantial Certainty or desire to cause effect
 Doctrine of Mistake: generally a tortfeasor IS liable when their reasons for acting
were based on a mistake. (Ranson v Kittner-wolf hunter shot dog).
 Transferred Intent: intent transfers to a person not the target
 Recklessness is no excuse (Garret v Dailey)
 The insane are liable for their actions (McGuire v Almy).
 The torts to which transferred intent can be applied are:
Assault
Battery
False imprisonment
Trespass to chattels
Trespass to land

2. Battery
 harmful or offensive contact of a person by another without consent.
A, Intent
1) Knowledge or substantial certainty that a harmful or offensive contact will occur.
a) Commit a voluntary act with knowledge or substantial certainty that the act will cause
direct or indirect contact.
2) External manifestation of the actor’s will
3) Transferred intent- meant to hit A but ended up hitting B- still liable
B. Contact
1) There must be actual direct or indirect contact with the person
2) Fisher v. Carrousel Motor hotel, Inc- Plaintiff was in the food about to make a
plate when the employee of defendant snatched his plate from him.-
a) The forceful disposition of the plate in an offensive manner a battery.
You don’t have to necessarily touch the person to commit battery, it is enough to invade one’s
person. (indirect conduct such as touching something the plaintiff is holding.)
b) extended personality: anything touching your body
C. Harmful or offensive
1. Harmful: Plaintiff if physically impaired
2. Offensive: The reasonable person in the place of the victim would feel offended by the contact

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Assault: intentionally placing someone in apprehension of harmful or offensive contact with the present ability
to carry it out; must be imminent fear and the victim must reasonably be placed in fear.
A. Intent
1. Knowledge or substantial certain to put one in apprehension of imminent harm.
2. Voluntary act
B. Causes Reasonable Apprehension of an Imminent Battery
1. Putting someone in fear or causing someone to anticipate that they are in immediate harm.
2. The person must see the harm coming and know that it is intended towards them
a. if the person doesn’t see it coming it is not assault
C. Must have the present and apparent ability to carry out the battery
1. Must have the actual ability to follow through with the immediate contact
2. Western union Telegraph Co.-The employee did not have the ability to carry out
out the contact because of the height and length of the counter even though he placed the plaintiff in
apprehension of the contact so it was not an assault.
D. Not an assault if:
i) There is no knowledge of the act. Like if ball goes by ear but the defendant never saw it
ii) Defendant is not actually capable of the act.
iii) Just words—not imminent intent
iv) Conditional threat—not imminent intent unless it’s a bully move
3.
 (in criminal and tort) the threat or use of force on another that causes that person to have a
reasonable apprehension of imminent harmful or offensive contact; the act of putting another
person in reasonable fear or apprehension of an immediate battery by means of an act
amounting to an attempt or threat to commit battery.
 Putting another in the apprehension of an immediate battery.
 Does not require physical contact. (I deS v W de s).
 To be actionable-there must be apparent ability to carry out threat. (Western Un. v Hill).
 Fear and apprehension can be highly contextual.

4. False Imprisonment Intent to physically confine someone without their consent or legal justification
A. Intent
1) Act with intent to confine
B. Confinement actually occurs
C. Person is aware of the confinement at the time it occurs or is harmed by the confinement.
D. Not false imprisonment:
1) If you have a reasonable means of escape

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 a. unless you have to be heroic, causes harm to your property, causes you to ourself, and you
have to be aware of the means of escape.
E. Defenses:
Privileges:
(1) Shopkeepers privilege
(a) Shopkeeper must reasonably believe there has been a theft
(b) Detainment must be reasonable
(c) Detainment must be for a reasonable amount of time.

5. IIED
 What do you need for a claim of IIED (all must be met not just some)
 Behavior must be extreme and outrageous, beyond all bounds of decency.
 Substantially certain that behavior will result in distress, intentional or
recklessness.
 Must be a causal relationship between the conduct and the harm.
 Emotional distress must be severe.
 Physical damage not required (State Rubbish v Siliznoff).
 Respondeat Superior: employers may be held to a higher standard in their treatment of
underlings.
 A preexisting condition doesn’t rule out recovery but the condition must be shown to
have been exacerbated.
 The defendant must have known that the plaintiff was present for IIED to stand
(otherwise shows a lack of intent). (Taylor v Vallelunga).
E. Third party IIED pg 69
i) There’s no way that a person can be a victim just because they are in the presence of a tort. The third
person has no claim for IIED because he overheard it was not intended for him.
(1) Present.
(2) Know you are there.
(3) Family relationship.
(4) Have to be conscience tortor and victim.

6. Trespass to Land :an intentional invasion of someone’s right to exclusive possession of land
A. Intent
B. Deprive someone of their exclusive right to the possession of land\

 Unlawful entry onto someone’s real property.

 Interference with owner’s exclusive possession to the land.
 Does not require actual damages.
 Environmental trespass may require actual damages (POLICY!) (Bradley v American
Smelting).
 Projectiles in the immediate reaches of land may be tps (Herrin v Sutherland).

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  Privilege and Permission-tps may be established when invitation exceeded or purpose
given privilege expires (Rogers v Kent County Road Comm.)
 Ejectment may also be a cause to which p has action.

7. Trespass to Chattels
 Damage to property
 Or deprivation of possession of the property .
 No damage=no tps to chattels (Glidden v Syzbiak-petting dog not tps to cht).
 No damage but interference w/ exclusive use of property=tps to cht (CompuServe
v Cyber Productions).
 Electronic traffic has been held to be physically tangible to support tps.

8. Conversion
 the wrongful possession or disposition of another’s property as if it were one’s own.
 Willful interference.
 Usually done by wrongly taking, depriving or disposing of the chattel.
 Damages=value of the thing converted.

 In determining the seriousness of the interference and the justice of requiring the actor to pay
the full value the following factors are important:

o The extent and duration of the actor’s exercise of dominion or control

o The actor’s intent to assert a right in fact inconsistent with the other’s right of control
o The actor’s good faith
o The extent and duration of the resulting interference with the other’s right of control
o The harm done to the chattel
o The inconvenience and expense caused to the other

How may an actor convert a chattel:

 Acquiring (i.e. stealing)
 Damaging or altering
 Using it
 Receiving it (i.e. buying something hot)
 Disposing of it
 Misdelivering
 Refusing to surrender it

(a) Nature of the tort:

Physical damages. Permanent not temporary conversion.
(b) Effect of Good Faith
Individual may be subject to liability for conversion even when not subjectively at fault:

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 (c) Necessity of Demand
(d) Damages
(e) What may be converted
(f) who may maintain the action

II. Privileges (defenses to intentional torts)

a. Consent
 Actual consent isn’t necessarily required (implied consent in OBrien v Cunnard).
 RPP in dr.’s position would have done the same.
 Consent in sports. Player consented to play by the rules. Must consider rules of the game and
CONTEXT. (Hackbart v Bengals).
 Doctor privilege: they have some latitude but not free license (Mohr v Williams).
o consent implied when patient unconscious and needing emergency treatment.
o finding an unanticipated condition during surgery that is an immediate threat to patient
may be addressed.
 Awareness of battery not required at the time it is occurring. (consent based on false pretenses in
DeMays v Roberts).
 When a battery is beneficial you are still liable although the benefit may be considered when
formulating damages.
 Consent to fighting and assumption of risk.
o Majority rule: in angry combat consented to-both parties are civilly liable to the other.
o Minority rule: the act of each is unlawful and thus will be denied relief at least where
there is an absence of excessive force and malicious intent.
b. Self defense
III.
i. Anyone is privileged to use REASONABLE force to defend himself against a threatened
battery on the part of another.
ii. Retaliation: when the battery is no longer threatening the privilege of self defense
terminates. Original victim may become liable for tort now. A retreating violator has the
right to defend himself against the person he initially threatened.
iii. Reasonable Belief: privilege of self d exists when someone reasonably believes there is
going to be a battery when really the fact doesn’t exist

b. Defense of others
i. Same rules apply as in defense of self. No deadly force to repel a nondeadly attack.

c. Defense of property
i. You cannot use deadly or excessive force to defend property (Katko v Briney).
ii. Reasonable force may be used and generally a jury will decide if it is so.

d. Recovery of property
i. Force not acceptable unless owner is shown force (Hodgeden v Hubbard).
ii. Privilege of merchants varies by state (most have limited area where you can be detained
and a time limit, i.e. 1 hour). Must have reasonable belief that items were taken and
detainment must be reasonable.
Fresh pursuit (must for stuff back)

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e. Necessity
i. Public: Higher law of impending necessity can override property rights (Surroco v
Geary).
ii. Immediacy and degree of potential damage must be considered.
iii. What officials say is necessary goes.
iv. As a private party, you have the right to protect your property (necessity a complete
defense) but you are responsible for the damages caused by your necessary action.
Because the person making the decision to incur damages was not an official there may
be opportunity to receive compensation. This is not the case when officials are involved.
There should have no other less harmful means of avoidance.
v. Often actions are made for economic efficiency.
vi. Damages usually limited to compensatory-not punitive.

f. Authority of law
If the D is duly commanded or authorized by law to do what he does, he is of course not
liable for doing it. The problem is to discover how far the legal sanction extends.

 Arrest (example of authority of law)

 Arrest under warrant
 Arrest w/o warrant
o Either an officer or civilian may arrest to prevent a felony or a breach of
peace that is being committed or reasonably appears about to be
committed in his presence.
 An officer may make an arrest if he has information that affords reasonable
grounds for thinking that a felony has been committed and that he has the right
criminal.
 The citizen may arrest without a warrant if a felony has in fact been committed
and he has reasonable grounds to suspect the man he arrests; but his authority
depends upon the fact of the crime and he must take the full risk if none has been
committed.

g. Discipline
 Parental immunity is being abandoned in some courts
 Teachers’ use of discipline is unclear. Does it extend beyond the school grounds
to activities that are only remotely tied to educational program? What if it is done
out of anger and not just a desire to control the classroom?
 Other examples: discipline in the military, discipline by a ship captain on crew
and passengers, etc.

h. Justification
 Generally, “restraint and detention, reasonable under the circumstances and in
time and manner, imposed for the purpose of preventing another from inflicting
personal injuries or interfering with or damaging real or personal property in
one’s lawful possession or custody in not unlawful.”

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  Actions by state officials or private individuals, which under the circumstances,
are needed to protect something and this doesn’t fit into any other privilege.
(Sindle v NY Transit)
 You don’t need necessity to have justification just someone who is acting
reasonably in an emergency type situation when there is great damage being done
to person or property.
 A catchall defense.
End of intentional torts.

Π MUST SHOW THAT Δ WAS NEGLIGENT AND THEN SHOW THAT THE NEGLIGENCE WAS THE
CAUSE IN FACT AND THE PROXIMATE CAUSE OF THE INJURIES…..
IV. Negligence
Elements of Cause of Action for Negligence:
1. Duty: a duty to use reasonable care. This is an obligation recognized by law requiring
the actor to conform to a certain standard of conduct for the protection of others against
unreasonable risks.
2. Breach of Duty: a failure to conform to the required standard.
3. Causation: a reasonably close causal connection between the conduct and the resulting
injury.
4. Damages: actual loss or damages (although what constitutes damages is becoming
ambiguous today.)

DUTY: The standard of care is what a reasonable/prudent person would have done under the totality of the
circumstances.
When placed on notice you have a duty
Foreseeability of harm is central to the issue of whether a person’s conduct fell below the standard of care
BREACH FORUMLA: The probability of harm and severity of harm are greater than the burden of the
precautions. (PxS>B=NEGLICENCE). B(burden)< L(likelihood)S(Severity)

Causation
All elements needed for neg claim to stand.

 Factors considered by court:

 Forseeability of contact
 Probability of injury
 Precautions (their practicality versus degree of foreseeable harm)
 Purpose of the item (i.e. public utility)
 Relation of item to purpose of premises

 Precautions not feasible when the financial burden would be large.

 Hand Rule: B<LP arbitrary means of weighing factors
 B=burden of precaution, L=gravity of injury, P=probability
 Risk was high enough that not taking precautions can be negligence.

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  It would be unreasonable to take precautions against unforeseeable risks. (Blythe v
Birmingham Waterworks).
 It’s not that you could foresee the specific harm but when you recognize any harm could
occur then precaution may be taken. (Gulf Refining Co. v Williams bunghole).
 The danger anticipated outweighs the expense of precaution. (Chicago B & QR v
Krayenbuhl, unlocked turntable).

Standard of Care:
 The RPP
 Objective RPP test should be used to determine whether actions were reasonable
(Vaughan v Menlove hayrick).
 Rule of actions may sometimes be rigid (blown tire Delair v McAdoo).
 Proof of Custom and Usage
o The c and u is informative, it tells us about what reasonable people are
doing but it is never dispositive.
o Negligence is always relevant to circumstances!
o i.e. blind man bumps into someone because he is w/o cane (Roberts v LA).
Someone with a physical disability should act like another RPP with that
disability.
o Children and Neg: POLICY! children usually held to a more flexible
standard except in the case of use of heavy machinery and other such
ADULT ACTIVITIES (Robinson v Lindsay, snowmobile).
o Insanity and Neg: usually prior notice of insanity not a defense to
liability. No notice of illness is sometimes a defense.

 Professionals and Neg:

 One who engages in a business, occupation, or profession must exercise the
requisite degree of learning, skill, and ability of that calling with reasonable and
ordinary care.
 Cannot rely on custom as defense (lawyers in Hodgkins v Carter).
 Expert witness may be necessary for Π to prove point to jury.
 Prof should follow highest standard of care-be it local custom or national
standard (UTI test Morrison v McNamara).
What do other professions in the nation do
 Duty of Informed Consent
o INFORMED CONSENT is a doctrine imposed on a physician or surgeon
to inform a patient of his options and the attendant risks. If this duty is
breached, the patient’s consent is void and dr is liable. Part of the
doctrine’s design is to protect the patient’s right to autonomy.
o Action based on lack of informed consent entail the following three
elements:
 Duty to inform of any material risks not given (duty of care/breach
of duty)
 Causation by services rendered and Injury occurred

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  Also necessary in this claim: Patient would not have had
procedure had she had all information.
o The damage must be tied to the lack of information (if what was omitted
becomes the resulting injury).
o Consent to procedure is not valid until all information is given them.
o TEST for WHAT IS the information informed consent should convey:
 What would a reasonable doctor tell the patient?
 OR what would a reasonable patient want to know?
EXCEPTION: emergency situation, Lamen knowledge, Disclosure would be
determinantal
o . Consent is implied when there is an emergency.
o A RULE: a physician who is seeking a patient’s consent for a medical
procedure must, in order to satisfy his fiduciary duty and to obtain the
patient’s informed consent, disclose personal interests unrelated to the
patient’s health, whether research or economic, that may affect his medical
judgment.

Aggravated Negligence
Negligence per se-Violation of Statute
APPLICABILITY OF STATUTE
 The injury must be proximately caused by the negligence.
 Conclusive evidence of negligence is constituted when a statue is violated.
 In Neg Per Se: You have a duty to perform under a given statute and an injury
occurs that relates to the purpose of the statute and that the victim is in the class
that the statute intended to protect.
 A violation of statute implies negligence per se as a matter of law when:
o There is an injury to a person in the class the statute intended to protect.
o The nature of the injury is of the nature that the statute intended to deter.
 Statutes may be too broad so regulations can narrow down purpose of law.
 As to third party independent wrongful actions-the consequences of these acts are
not always attributable to the defendant BUT if a risk was foreseeable at the time
of the negligence the cause and effect chain are not necessarily broken
 Neg per se should not be used if it drags in too large a group.
Courts to use neg per se, the injury is the type the statute tries to prevent, and
party is the type the statue wants to protect. Whether the law is the sort app for civ
enforcement for tort

 Rules of Law: Sometimes laws are too rigid for the complex circumstances that
life presents. Pokora v Wabash-getting out of car to look for train is dangerous
and pointless-Jury should decide if actions were reasonable under the
circumstances.
 Just because the Δ followed the statute he may not be held not liable in all
situations if an RPP would have taken precautions beyond those outlined by the
statute.

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 EFFECT OF STATUTE
o Neg per se can apply to defendant as well.
o Three approaches to neg per se
 As rebuttable presumption (prima facie)
 As neg per se
 As evidence of neg

o Restatements exceptions to neg per se (not exclusive):

 Violation due to actor’s incapacity
 Neither knew or should have known about law
 Unable to comply after reasonable effort
 Due to emergency
 Compliance would have posed greater risk
 Etc.
Proof of Negligence
1. Circumstantial evidence
Banana peel cases
How long situation existed, should it have been corrected yet, etc.
2. Res Ipsa Loquitor

 Elements:
o No direct evidence of who did it
o There was exclusive control by the d, more probable it was due to their
control,
o The event is the sort of thing that, most of the time, doesn’t happen without
negligence.
o P must show that injury not due to her own negligence.
 This is not strict liability.
 A way of making proving the case easier for the p’s lawyer when there is no
direct evidence.
 There must be reasonable evidence if not direct evidence to infer neg.
 P not required to eliminate all other possible causes, just show that it was more
probable than not that injury caused by want of care (<50%).
 P’s burden is to show trier that it is more probable that the d’s neg caused event.
Must produce evidence negating other possibilities. Just saying that it was
possible won’t cut it.
 Common sense has much to do with RIL…
 Sometimes the fact that the event doesn’t occur without neg is within the general
experience of the jury and other times this requires expert testimony (med
malpractice).
 D may simply pose possibilities however, to persuade the jury.
 Groups of d’s: when there were multiples who had exclusive control you want to
name everybody!! Ybarra v Spangard-patient named everyone who took care of

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 him while he was under. They have exclusive control of the info about what
really happened.
 Contributory negligence by the p will sometimes knock out RIL.
 Neg( Duty/Breach)
 Causation
o Cause in fact
 But for cause
 Substantial Factor
o Proximate Cause
 Spacial/temporal
 Foreseeability
 Superseding causing act
o Damages

V. Causation in Fact
 Usually requires that BUT FOR the d’s act, the injury would not have happened.
 Sine Qua Non…Without which it is not.
 Burden of proof is on the p.
 Act doesn’t have to be the ONLY but-for cause just A but-for cause. Jury persuaded by
“preponderance factor”.
 When BUT FOR doesn’t quite cut it:
o Substantial factor test.
o Shift burden of proof to defendant (as in Summers v Tice, a 50/50 proposition of
liability).
 Double fault or alternative liability. (two hunters liable for 1 injury).
 Market share theory (Sindell v Abbott Labs).
 The defense should show rather specific possibilities that could have caused the injury…they
should not say it could have been anything.
VI. Proximate Cause
I. What is Proximate cause?
a. Cause in fact refers to the cause and effect relationship between the defendant’s tortious act and
the plaintiff’s injury or loss
b. Proximate or legal cause: legal principals used to get rid of vases that show cause in fact but
should not create liability]
c. Can’t get to proximate cause without cause in fact and you have to show both
d. Proximate cause
i. Spatial and temporal approach
1. How far in space and time is the breach from the cause
ii. Reasonable foreseeability
1. How foreseeable was injury from the breach of duty
2. Don’t have to know the complete chain of events

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 3. if something is close in terms of time and space it is almost always reasonable to
foresee
iii. Is there an intervening and superseding cause
1. Unforeseeable
2. Extraordinary
3. Independent of the Defendant’s negligence
II. Unforeseeable consequences
a. Bartolone v. Jeckovich: Plaintiff had a pre-existing condition that was aggravated by the
collision with the defendant. Later months after the accident he suffered a breakdown and
defendant was found liable.
i. There was evidence to show the accident contributed to the breakdown. He was able to
function as normal before the accident
ii. EGGSHELL SKULL RULE (take the plaintiff as you find them)
1. If you hit an egg shelled skull person in the head you can’t argue that I could not
foresee that he had an egg shell skull
2. RULE a defendant must take a plaintiff as he finds him and hence may be held
liable in damages for aggravation of a pre-existing illness
a. Requires expert testimony
b. Specific harm does not have to be foreseeable just the harm itself.
 Re: suicide. The majority rule is that suicide is not an SI cause. But for our exam follow the minority
rule: question whether the act followed the irresistible impulse test.
 public policy exceptions (e.g., social hosts and victims of their drunk-driving guests; Ps who had not
been conceived when the operative injury was inflicted) in which there might otherwise be PC but the
courts declare that there is not, as a matter of policy. Most of these cases can also be understood
alternatively as restricting not PC but duty.
a.
g. The Rescue Doctrine:
i. Allows an injured rescuer to sue the party that caused the danger requiring the rescue in
the first place.
ii. Two functions:
iii. Informs tortfeasor that it is foreseeable that a rescuer will respond to a person imperiled
by the d’s actions.
iv. It negates the presumption that rescuer assumed the risk so long as he doesn’t act rashly.
v. To get rescuer status you must show:
1. D was neg to person in peril and rescue from such peril was required
2. The peril or appearance of peril was imminent.
3. An RPP would have concluded that such peril or existence of existed
4. Rescuer acted with reasonable care.
b. Limitations of SI defense for reasons of public policy and because they are foreseeable:
Majority: act of sucide is a cause in which the person is responsible for
Unless you caused the reason they want to commit suicide
Only harm done to mom not the fetuses

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 h. Where neg per se and SI meet: with the key-in-ignition scenario, for example, because the
statute was for the protection of third party the act of the thief was not considered SI (but
all circumstances must be considered).

VII. Joint Tortfeasors

a. Plaintiff may proceed against both negligent parties as joint tortfeasors to the extent that each is a
legal cause of the harm.
b. A defendant will be held jointly and severally liable even if defendants are not acting
concurrently
c. Bierczynski v. Rogers - Drag racers hit innocent person on highway. The person who hit the
plaintiffs was in the wrong lane. The other driver Bierczynski, that did not hit the plaintiffs and
was driving in the correct lane, tried to escape liability. Participation in a motor vehicle race on a
public highway is an act of concurrent negligence imposing liability on each participant for any
injury to a non-participant resulting from the race
i. He is liable even though he did not hit the plaintiff.
VIII. Joint and several liability
a. Coney v. JLG Industries: Guy is killed and estate sues lift manufacturer and the manufacturer
says the plaintiff and employer are also negligent. Plaintiff is also negligent, as is defendant 1
and defendant 2.
i. If you have joint tortfeasors causing harm either defendant may be held liable for the
entire damaged caused by them
ii. Illinois rule: first defendant would be liable for 100% of the damages
IX. Satisfaction and Release
a. You cannot recover more than 100 %
b. Bundt v. Embro - If you draft it as a pure release you have released all defendants of the claim
i. If you settle with a party for only a percentage of the damage the other defendant can be
held liable for remaining percentage up to 100.
ii. If full satisfaction is paid other defendants are released from liability
c. Cox v. Pearl Investment: Plaintiff slipped and fell on property owned by defendant. Plaintiff was
previously paid by Goodwill in consideration of not filing suit
i. The damages will be reduced by what goodwill paid if plaintiff was not paid full
satisfaction.
X. Contribution and Indemnity
a. Failure to bring suit against all possible defendants does not bar a named defendant from
impleading a unnamed defendant for contribution
b. Knell v. Feltman- plaintiffs are driving in the car. Then there is an accident between friends.
Both are negligent but team up to sue a third person. Plaintiff does not sue his friend but sues
another who says that plaintiff’s friend is liable too. Therefore, the fact that a plaintiff does not
file a claim against a potential tortfeasor, does not bar a defendant from bringing in that party for
claim on contribution.

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 i. When a tort is committed by the concurrent negligence of two or more persons who are
not intentional wrongdoers, contribution should be enforced.
ii. The defendant brought in the other driver as a third party defendant and both partied were
found to have contributed to the accident so both were equally liable.
c. Yellow Cab co v. Dreslin:
i. Husband was found not contributory negligent to wife because of immunity
ii. In contribution cases when there is immunity between two of the parties the other
negligent defendant is responsible for all of the damages
d. Indemnity: arguing that someone else is entirely liable for the damages
i. Slocum v. Donahue: Donahue ran over their child and he says it was because of a defect
in the car. But he was drunk so he was also negligent. Ford settled with the family and
lent them their expert witness. Donahue claims it was collusion b/w them against him
1. When a party settles barring fraud or collusion the other liable party cannot
collect from settling party. The settlement is final.
XI. Apportionment of damages
a. The defendant is only liable for the damages that they cause
b. Bruckman v. Pena: Plaintiff got in two car accidents and blamed the defendants from the first
injury for both sets of injuries. The court says that you cannot sue where there is an intervening
cause. You can only go after the defendants for which the injuries that can be proven. The flip
of egg shell skull rule- the second defendant would be responsible for egg shell skull rule but
only for the amount left over from first accident.
i. No joint and several liability because it was separate accidents.
XII. Duty of Care
a. Privity of Contract
i. Nonfeasance: breach only by nonperformance=no tort
ii. Misfeasance: open to tort when t he performance negligent, reckless, etc.
iii. Election and gravamen
iv. Winterbottom, broken down post carriage, You are liable to the person you contracted
with.
v. McPherson, broken down Buick injures driver. Court felt this was misfeasance because:
1. that the car would go on to the use and possession of a third party was foreseeable
2. not inspecting the car was nonfeasance but passing it on to customer was
MISFEASANCE.
3. cars are a product that is INHERENTLY DANGEROUS
vi. professionals and privity: re attorneys, usually only liable to 3rd parties under privity
when the third party was an intended beneficiary of the K. In case we read, atty not liable
to the other side in a real estate sale.
vii. Exceptions
1. Specials relationship :
a. Present danger
b. forseeable
b. Failure to Act
i. Hegel v Langstrom, university owes duty to keep campus safe-no duty to act to intervene
with the personal lives of students, no duty to act on what goes on off campus.

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 ii. Ayres v Hicks, for operator in control of the instrumentality that is injuring another they
have a duty to act or else they may be responsible for the subsequent aggravation of the
injury.
iii. JS and MS v RTH, it was foreseeable that the wife should have known of her husband’s
proclivities and that there was a special public policy imposing a duty to act upon her.
iv. When is there a legal obligation to act? (from lecture)
1. control of premises
2. control of instrumentality (stop the escalator)
3. common carrier obligations
4. special and unusual public policy (sexual abuse of children for example: the wife
was in a special position to know of it and to act. Public interest in children’s
safety outweighs her interest in domestic harmony. Her failure to act was a
proximate cause.)
v. Liability may be imposed when you act to help and you have INDUCED RELIANCE.
vi. There may be statutory causes of action (where failure to act may be neg per se).
1. Ex. Doctors happening upon emergencies (protected by good sam law).
viii. When is there a legal obligation to act?
2. Operator of the instrument injuring another
3. Employer (if in the course of employment and employee unable to look after self)
4. Ship captain/man over board
5. Innkeeper and guest (fire escape)
6. School teacher/pupils
7. Common carrier/passenger
vii. Duty to take action when you have injured the person.
viii. Duty to act when you caused a risk (cow in the road).
ix. Liability may be imposed when you act to help and you have INDUCED RELIANCE.
x. Duty to act in controlling a third person::
1. when you are in a special relationship to p and have a duty to warn
2. when you are in a special relationship with d (may have special knowledge)
xi. Duty to warn (i.e. of a dangerous psych patient) Tarasoff v Regents of Univ. of Cali.
1. imminent danger AND
2. identifiable victim (may be trumped by extreme imminence in some
jurisdictions)
3. You can confine someone if you know they have the immediate means to act out.
c. Mental Disturbance and Resulting Injury
i. Daley v LaCroix
1. property damage can fulfill physical damage requirement.
2. physical impact to person not required for emotional distress compensation
3. there must be physical injury stemming from the severe emotional distress caused
by the incident (fright not enough).
ii. Thing v LaChusa
1. To recover for emotional distress for injury to a third person the majority states
apply a variation of the rule comprised of the following elements:
a. P must have contemporaneous sensory observation, proximate to scene.
b. P must be closely related to victim.

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 c. Emotional distress must be severe, beyond that which a disinterested
person would experience.
California no physical manifestation
Expectation to egg shell rule (takes how reasonable person would act)
d. Unborn Children
i. Endresz v Friedberg
1. Injury to a fetus that results in the stillbirth or miscarriage is not compensable
because it is not a person until it is born. Can recover for in utero damages if the
baby is born alive.
2. Parents can still sue for their emotional distress if the baby dies, but cannot sue on
behalf of the baby.
3. Cant sue for wrongful life but can for medical
4. Jurisdictions vary on this rule.
5. (is this still good law???)
ii. Procranik v Cillo
1. Special damages for doctor’s negligence that results in your missing a chance to
abort the pregnancy.
2. This is the minority rule (majority rule says there are no compensable damages).
3. Wrongful Life (claimed by baby) and Wrongful Birth (claimed by parents)
4. Dilemma: How do you determine compensation for non existence?
XIII. Owners and Occupiers of Land
a. Outside the premises
i. Landowners are generally held liable for conditions on their land that pose a risk to
persons not on the land.
ii. Exception: Natural Hazards
1. no duty to remove or guard against a natural hazard.
2. BUT with Trees: there is a duty to inspect and remove defective trees.
3. the care taken should be reasonable to prevent an unreasonable risk of harm.
4. Taylor v Olsen, the defective tree looked ok from the outside so reasonable
inspection would not have found problem.
iii. Artificial Hazards:
1. there is a general duty to prevent an unreasonable risk of harm to persons outside
the premises. This can include structures, shrubs, excavation work, etc.
2. Owner is generally liable for the actions of others whose behavior on their land
endangers those off the premises.
3. Salevan v. Wilmingotn Park Inc., a baseball park owner who had taken
precautions against balls flying onto street should have furthered his precautions
(such as by extending the fence upwards).
b. On the premises
i. Trespassers: Owner has no general duty to a trespasser to protect the trespasser, warn
them, cease dangerous activities on the land, make land safe, etc.
ii. Exceptions: when the owner has reason to know that an area is frequently trespassed
upon, the owner should warn, keep it safe, etc.
iii. Discovered trespassers: owner should exercise reasonable care once they know there are
trespassers. This may be satisfied simply by warning of danger unless it is obvious that

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 the warning is being ignored. The owner definitely should protect them against artificial
hazards but as to natural hazards it remains unclear.
iv. Trespassing Children: rules are more lenient for the p since children trespass more
frequently, have less sophisticated judgment...
1. attractive nuisance
2. modern view weighing the following: likelihood of child trespassers, danger-
owner knows of the unreasonable risk to kids, child must not have realized the
danger, utility-benefit must be slight when compared to the risk, lack of
reasonable care by the owner.
v. Licensees (not there for business or benefit)
1. no duty to inspect for unknown dangers
2. But there is a duty to warn of known dangers (including natural ones).
3. no duty to make it safe.
4. if conducting a dangerous activity on the land there is a duty to keep a lookout
and take precautions.
vi. Invitees
1. includes those invited to do business and those who come onto the land for the
purpose that it is held open.
2. In general, owner has a duty of reasonable inspection to protect the invitee and
they have a duty to remedy any bad conditions.
3. doesn’t have to be a transaction just a general business relationship.
4. Owner’s duty of care includes using reasonable care in duty to inspect, duty to
warn of obvious or known defects, duty does vary with the nature of the
property’s use (1 invitee or 100)…
5. Status change: once an invitee goes out of the area which the invitation covered,
or where the business is conducted, the status is shifted to licensee or trespasser
accordingly.
Treat them as the same
California, treat all three as the same unless criminal
c. Lessor and Lessee
i. Landlord has no liability in general but EXCEPTIONS are:
1. when the lessor knows (or should know) of and conceals or fails to warn of a
danger. Knows that the lessee will not discover the risk themselves.
2. lessor transfers the land in a condition that he knows poses a danger to persons off
the premises.
3. When the premises are leased for use by the public the lessor has the duty to
inspect and repair.
4. lessor has duty to inspect, repair, maintain COMMON AREAS. Hallways, stairs,
etc.
5. when the lessor contracts to make repairs and doesn’t
6. when lessor makes negligent repairs.
ii. Remember the case where the landlord is held liable after tenant mugged in hallway. Not
intervening superceding because it was foreseeable. Court said that the landlord had the
power to take reasonable precautions to improve safety.
iii. Warranty of habitability.
XIV. Damages

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 a. No nominal damages in neg cases without injury. Can have nominal in intentional.
b. Compensatory damages: closely approximate the actual damages.
c. Punitive: punish outrageous behavior, above and beyond compensation
XV. Wrongful Death and Survival
a. Wrongful death: for families: spouse, children, parents…
b. Losses: loss of victim’s income, companionship and guidance.
c. Love ones can recover if they prove neg
d. Only get wrongful life
XVI. Defenses
a. Contributory negligence(not on essay) 4 states only
i. At common law be contributorily neg made no recovery possible.
ii. Π neg must if been a cause in fact and proximate cause of their own injuries for con neg
to apply.
iii. It can be asserted against neg per se.
iv. LAST CLEAR CHANCE: may bar successful use of cont neg defense if the Δ had the
last clear chance to avoid the accident.
1. inattentive defendant: due to inattention the Δ did not realize the last chance to
avoid acident—court will still apply LCC doctrine.
2. antecedent negligence: Δ must have an actual chance to avoid accident. If they
try to avoid and cannot—court will not apply LCC.
v. Butterfield, Π had last clear chance to avoid the accident.
vi. Davies, fettered ass in road. Jury held for the Π.
b. Comparative Negligence(if says mod means 50/50)
i. Pure: Π collects any percentage of injury caused by Δ even if Π’s neg exceeds Δ.
ii. Modified: Π can recover IF
1. Π’s neg is 49% or less
2. Π neg is 50% but not more
iii. Multiple Δs: so long as Π’s neg is 49% or less OR 50% or less, she can still collect.
iv. Most states don’t apply J and S with Comp Neg but if they did—if any one Δ was solvent
they would still have to pay the whole thing and not just their %.
c. Assumption of Risk
i. Requires actual knowledge of the risk, appreciation of its magnitude and voluntarily
encountering it.
ii. Express:
1. signing a waiver for example
2. still if Δ conduct was grossly negligent or injury occured outside the scope of
what was consented to liability may still attach.
3. unfair bargaining power can also knock it down
4. courts will not uphold AOR if it is for something that violates public policy.
5. usually not applied in assuming risk of medical treatment.
iii. Implied:
1. Rush, because the Π had no other choice than to use the privy, this does not mean
that she impledly assumed the risk. (duress)
2. Δ must show that the Π KNEW of the risk (not should have known) and
voluntarily consented to the risk.
d. Statutes (for tort actions Stat of Limitations usually 2-3 years)

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 i. Discovery Rule: statute of limitation only starts to run when the injury is discovered or
should be discovered.
1. for injuries that are inherently unknowable
ii. Starts with the discovery, does not start after the full manifestation of the injury.
iii. Tolling: the running of the statute may be stopped due to such things as
1. concealment of injury or identity (by the Δ)
2. minor becomes adult
3. but if 3rd party conceals=no tolling
iv. Continuing Tort: statute does not begin to run until treatment complete.
v. Accrual: decided usually at court’s discretion, start the running at the time that injury
actually occurred.
e. Immunities
i. Family
1. husband/wife: but now over half the states don’t apply it.
a. Risk of collusion not enough
b. Harmony is already out the window
2. parent/child
a. except when parent not being parental (abuse…)
b. Ravitch says this is crap
c. Some states have abolished this immunity though some have just limited
it.
XVII. Vicarious Liability
a. Respondeat Superior
i. When an employee who commits a tort during the course of their employment
(intentional, neg, or strictL), their employer can be held responsible.
ii. Unlike an employee, an INDEPENDENT CONTRACTOR is not working under the
close control of another. Make the distinction.
iii. What is scope of employment:
1. not when commuting. But probably yes for a road trip, or traveling sales.
2. but courts are split if the job requires a long commute and mileage is being paid
and person doesn’t usually have to travel in from this far away.
3. when accident occurs during a required recreational pursuit while guy at
convention.
iv. Reasons for respondeat superior:
1. deep pockets
2. redistribution of damages
3. control theory: boss making them do it
4. enterprise theory: done for the boss’s fiscal benefit
b. Independent Contractors
i. Not under the hiring parties control.
ii. Generally, they do not create vicarious liability for the hiring party.
iii. Exceptions were hiring party may be liable for IC:
1. the duties were nondelegable (car maintenance, business premises kept safe…)
2. failed to warn, supply, stop the IC
3. negligently selected the IC
4. inherently dangerous activity

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 5. illegal activity
c. Joint Enterpises: may be liable for the group who is all equal and acting together to share a
benefit.
d. Bailments/Auto Consent
i. Bailment: when you have property and you let someone else use it, you may be
responsible for any harm to come from it.
ii. Family purpose: if any member of the household borrows the car and wrecks there is vic
l on the owner because the user was said to be furthering a family interest (kind of
pooping out).
iii. Consent: where someone gives consent for person to use their car they may be
vicariously liable for any wreck UNLESS the driver exceeded the scope of the consent.
(not always true with kids in family though)
iv. Hertz, car rental place liable because the agent (renter) had given consent to the guy to
drive the car. Also remember REDISTRIBUTION and that the rental agencies may be in
a better position from preventing this sort of thing from happening. Now their contracts
are more restrictive.
v. Courts are moving away from vic L for drivers but getting narrower on the issue of
loaning guns.
vi. Non-statutory bailment:
e. Imputed Contributory Negligence
i. For situations with three parties
ii. Old rule: husband actions imputed to wife, child’s actions imputed to parent.
iii. Modern Rule: a Π’s contributory negligence via imputation from another Π’s neg will
only be imputed if (as defendants) the first Π would be up for cont neg.
iv. Both ways test
v. Most courts don’t recognize this.
XVIII. Strict Liability
a. Animals
i. Strictly liable for damage done by trespassing animals
ii. Strictly liable for damage done by DANGEROUS non-trespassing animals
iii. Not strictly liable for non-trespassing non-dangerous animal
1. UNLESS owner knows or has reason to know the animal is dangerous (but you
may still get out of this if someone really provokes the animal)
b. Creating an artificial condition on your land (for your benefit and purposes) can make you sl for
any harm it may cause when it lets go, gets out and causes harm to others.
c. Abnormally dangerous activities
i. Six factors showing an activity is abnormally dangerous
1. there is a high degree of risk to others
2. the harm that results is likely to be serious
3. reasonable care cannot eliminate the risk (very important element)
4. the activity is not common
5. activity not appropriate to the place
6. and the danger outweighs the benefit to the community
ii. Examples: flammable liquids, explosives, crop dusting, pile driving, poisonous gasses,
rockets, fireworks, water escape, hazardous waste disposal…
iii. Limitations of SL

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 1. harm must have resulted that reflects the risk of the activity (hit by a truck
carrying live tigers does not have anything to do with the SL of tiger keeping)
2. abnormal sensitivity (mink eats babies) caused harm
3. Assumption of Risk can be a defense to SL.
4. act of god
XIX. Products Liability
a. Claim of Negligence
i. Generally the easier claim for the Π to prove (easier to show neg than prove defect)
ii. McPherson v Buick: duty to the end user whether you make part of the product or the
whole thing.
iii. Proving the case:
1. cause must be cause in fact
2. Cause must still be PROXIMATE!!!!
3. product must have been defective when it left defendants’ hands
iv. Old rule: must show privity
v. Even a bystander can recover if they can show they were a foreseeable plaintiff
vi. Defendants may be anyone in the chain of distribution
1. manufacturer
a. design defect
b. manufacturing defect
c. crappy inspection, ETC
2. retailer (though they may get manuf to indemnify)
b. Claim of Breach of Warranty
i. Court may require proof of reliance
ii. Baxter v Ford: no proof of neg but Π showed court the brochures with the safety
standards listed.
iii. No requirement of privity for express warranty.
iv. Implied Warranty: there is an implied warranty of merchantability IN THE LAW (UCC)
that says if a product is put into the stream of commerce it is suitable for the appropriate
purpose.
c. Strict Liability in Products Liability
i. Requirements the Π must show:
1. product was defective when sold
a. design defect OR
b. manufacturing defect OR
c. defect due to failure to warn
2. injury proximately caused!
ii. A product is open to SL IF
1. it is defective
2. it is unreasonably dangerous
iii. not SL if benefit outweighs danger (like vaccines)
iv. STATE OF THE ART DEFENSE: at the time of manufacturing, the maker followed the
state of the art advances even though those are now obsolete. Δ did not and could not
have known of the danger posed at the time.
1. NOT AN ABSOLUTE DEFENSE (industry collusion)

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 v. OBVIOUS DANGER defense—if the danger posed by the product is commonly known
no SL usually.
d. Manufacturing defect
i. Π must show that his product was different from the others in such a way that it was
unreasonably dangerous and injury.
ii. Don’t have to prove how it became different
e. Design defect
i. Manufacturing ok but the design is bad
ii. May show by illustrating other possible designs that are feasible and are cheaper than the
injury.
iii. May allege structural defect or lack of safety features, bad material, etc.
iv. Δ may have a duty to protect the Π for MISUSE that is forseeable
v. Proof of complying with governmental standards is not dispositive.
f. Duty to Warn
i. An “extra” since no warning will spare a customer if the product is defective.
ii. Generally courts want Π to show that the Δ knew or should have known of the risks.
iii. Duty to (adequately) warn of
1. non-obvious risks
2. correct usage
3. even obvious risks (cover your ass with this cheap step) though it may just reduce
Δ’s damage payout.
4. Learned intermediaries—drug company may only extend the warning to the
doctor.
iv. Sophisticated User defense
g. Plaintiffs: buyer, user, bystander if a foreseeable Π.
h. Defendants: manufacturers, retailers, sometimes lessors, builders
i. Risk/Utility analysis factors:
i.
j. DISTINCTION: even though you may have assumed the risk, if defect contributed to the injury
you should not be barred from recovery.
k. Comparative fault meets SL when you are not reasonably careful
l. Remember hospital case: they were not strictly liable for the services of a doctort who installed
a faulty pacemaker. A hospital is in the business of selling services and not things (although a
faulty product bought at the gift shop could imply SL).
m. LASTLY—if the damage is only to the product pursue a warranty claim (like if the stove burns
but causes no other damage).
XX. Nuisance
a. Public
i. Affecting the rights of the general public
ii. Interference with public’s access, enjoyment, etc
iii. Does not have to be a criminal activity anymore
b. Private
i. To an individual
ii. UNREASONABLE Interference with use or enjoyment of their property
iii. Doesn’t have to be trespass though trespass may be involved.

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iv. Building your house next to an existent factory does not mean the crap that falls in your
yard is an unreasonable interference. CONTEXT!!

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