Best Torts Outline

TORTS – OUTLINE Page 1 of 57
INTENTIONAL TORTS
INTENT (R2T-1)
A person acts with the intent to produce a consequence if:
1. The person acts with the purpose of producing that consequence; or
2. The person acts knowing that the consequence is substantially certain to result.
SUBSTANTIAL CERTAINTY
An actor knows with substantial certainty that an event will occur as a result of his action. If he is not
substantially certain, but merely highly likely or is aware of a grave risk, the act is not an intentional tort,
but may qualify for negligence.
TRANSFERRED INTENT
As long as D held the necessary intent with respect to one person, he will be held to have committed an
intentional tort against any other person who happens to be injured.
a. Transferred intent can apply to: battery, assault, false imprisonment, trespass to
land, and trespass to chattels
b. Not just the harm is transferred, but the tort is as well. If D intended to assault P,
but inadvertently performed a battery, D will be liable for battery even though he
only intended the assault.
WHO IS LIABLE FOR INTENTIONAL TORT?

1. Children can generally be held liable for tort
2. Parents are not generally held liable for their children's actions unless P can show fault on the
part of the parent
3. Mentally ill can be held liable for intentional tort if they have the intent to do the offensive act
a. Caretaker of mentally ill can be held liable for action of patient if it can be shown they
were the actual caretaker and their supervision was negligent
b. Some states have an exception that institutionalized mentally ill person cannot be held
responsible for tortious act if he cannot appreciate the consequences of his conduct
4. Intoxicated persons are liable for their tortious acts; intoxication does not negate intent
BATTERY
An actor is subject to liability to another for battery if:

1. D acts intending to cause a harmful or offensive contact, and
2. A harmful or offensive contact results.
Single Intent – D has the purpose or desire or knows with substantial certainty that a contact
will occur, and a harmful or offensive contact results
Dual Intent – D has the purpose or desire or knows with substantial certainty that a contact
will occur, and D has the purpose or desire or knows with substantial certainty
that P will be offended or harmed through the contact.
a. Knowledge of Act - Awareness of contact is NOT necessary for battery to occur (i.e.,
DR perform battery on patient during surgery)
b. Type of Contact - Unpermitted and intentional contacts with anything so connected

with the body as to be customarily regarded as part of the other’s person is a battery.
1. It is not necessary that he should bring any part of his own body in contact
with another's person. It is enough that he intentionally cause his clothing
or anything held or attached to him to come into such contact. All that is
necessary is that the actor intend to cause the other, directly or indirectly,
to come in contact with a foreign substance in a manner which the other
will reasonably regard as offensive.
c. Transferred intent applies to battery
d. No Requirement of Damages – Battery is complete upon contact. It is not necessary

for P to prove actual damages. P can recover nominal damages even though he
suffered no actual damage. Majority jurisdictions also allow for recovery of punitive
damages where D acted with malice.
WHAT CONSTITUTES OFFENSIVE CONTACT (R2T-19)

A bodily contact is offensive if it offends a reasonable sense of personal dignity. Contact is offensive if P
has not expressly or impliedly consented to it.
ASSAULT
An actor is subject to liability to another for assault if:

1. D intends to cause apprehension of an imminent harmful or offensive contact and
2. D has the present apparent ability to carry it out.
3. P must actually have a well-founded apprehension of the harmful or offensive contact.
a. Well-Founded Requirement (Majority) – Apprehension of harmful or offensive

contact must be reasonable. No protection against exaggerated fears of contact. The
courts will usually apply a reasonable person test to determine if apprehension is
reasonable.
b. Apparent Ability to Act is Sufficient – The apprehension of contact must be

reasonable to P. P must believe that D has the present apparent ability to make
contact. Subjective.
c. Apprehension DOES NOT equal Fear – Apprehension means expectation. Thus, one
may reasonably apprehend an immediate contact although he believes he can defend
himself or otherwise avoid it.
d. Knowledge of Act Required – For there to be an apprehension, P must be aware of

the threat from D.
e. Effect of Words – Words alone, however violent, generally do not constitute an

assault because they cannot create a reasonable apprehension of immediate harmful
or offensive contact. Some overt act is necessary.
f. Conditional Threat is Sufficient – If the words and act combine to form a conditional
threat, an assault will result. (give me all the money and I won’t shoot you)
i. If D has proper legal authority, then conditional threats are OK (Cop says stop or
I’ll shoot; property owner says get off my property or I’ll throw you off)
g. Immediacy Required – Threats of future contact aren’t sufficient. There is no assault

if D is too far away to do any harm or is merely preparing for a future harmful act.
h. Transferred intent applies to assault
i. Damages – It is not necessary for P to prove actual damages. P can recover nominal
damages even though he suffered no actual damage. Majority jurisdictions also allow
for recovery of punitive damages where D acted with malice.
FALSE IMPRISONMENT
An actor is subject to liability to another for false imprisonment if

1. He acts intending to confine the other or third person within boundaries fixed by the actor; and
2. His act directly or indirectly results in a such a confinement of P; and
3. P is aware of the confinement at the time of the confinement or is harmed by it.
a. Awareness – P must be aware of confinement at the time of the confinement.
b. Awareness of Ability to Escape – If another exit is available, but the victim is unaware
of it, D is liable for false imprisonment.
c. Reasonable Means of Escape – If escape route requires the victim to suffer

embarrassment or lose his dignity, D is liable for false imprisonment.
d. Transferred intent applies to false imprisonment.
e. Damages – No physical harm required to get damages.
CONFINEMENT / ESCAPE (R2T-36)
Must be complete. No false imprisonment if actor prevents another from going in a particular direction
or location in which he has a right or privilege to go
SUFFICIENT METHODS OF CONFINEMENT
1. PHYSICAL BARRIERS
D may falsely imprison P by confining him through the use of physical barriers.
2. PHYSICAL FORCE
False imprisonment will result where P is restrained by the use of physical force directed at
him or a member of his immediate family. May also occur if the force is directed against P’s
property.
3. DIRECT THREATS OF FORCE

Direct threats of force by D to P’s person or property or against persons of Ps immediate
family can constitute false imprisonment.
4. INDIRECT THREATS OF FORCE

False imprisonment can also arise from indirect threats of force (acts or words) that
reasonably imply that D will use force against P’s person or property or persons of P’s
immediate family.
5. FAILURE TO PROVIDE MEANS OF ESCAPE / OMISSION

Where P has lawfully come under D’s control and it would be impossible to leave without
D’s assistance (and it was understood btwn the parties that such assistance was
forthcoming) the withholding of such assistance with the intent to detain P will make D
liable. It must first be established that D owes such a duty to P.
6. INVALID USE OF LEGAL AUTHORITY

The invalid use of legal authority amounts to false imprisonment if it results in confinement
of P.
a) If D has legitimate legal authority to confine then NO false imprisonment
b) If D has no legal authority, but P believes he does, then its false imprisonment
c) Citizen can be liable for false imprisonment by deliberately procuring a false

arrest (Citizen points out person to be arrested knowing that person did nothing
wrong)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

D acts with extreme and outrageous conduct to intentionally or recklessly cause emotional harm to P
and P suffers severe emotional harm through D’s conduct
1. D must have the intent to cause several emotional distress

a. If P is not in the room and D did not intend for his actions to cause P severe
emotional distress, then D can’t be liable
i. Wife hiding in room while husband is killed
2. Conduct must be extreme and outrageous

a. Viewed from a reasonable person standard
b. Conduct exceeds bounds of decency and behavior tolerated by society
i. Repetitive abuse can meet standard

ii. Mere name calling isn’t sufficient
iii. Imbalance of power / Misuse of power
iv. Knowledge of vulnerability / known sensitivity
v. Length of time
vi. Environment (is it normal conduct?)
3. Must have a causal connection between conduct and harm
4. P must suffer severe emotional harm

a. Conduct so severe no reasonable person could be expected to endure it
b. Conduct is severe when a person of ordinary sensibilities in the same
circumstances would suffer severe harm
i. Transferred Intent does not apply to emotional distress (R2T)

1. R3T allows for transferred intent in very limited
circumstances; must have close, special relationship
ii. Actual Damages Required – Nominal damages will not suffice, but it is
not necessary to prove physical injuries to recover. Punitive damages
are allowable where D’s conduct was improperly motivated.
BYSTANDER’s PRESENCE (R2T-46(2))

Recovery is allowed if D knows of bystander’s presence AND
1) the conduct was directed at a member of bystander’s immediate family; OR
2) bystander suffers bodily harm as a result of her distress.
R3T – allows bystander to recover if he “contemporaneously perceives” the harm (hear, smell); parents
of minors who are sexually abused can also recover
*************************************************************************************
INTENTIONAL TORTS TO PROPERTY
TRESPASS TO LAND
1. Intent to enter; and
2. Actually enter
a. Mistake is Not a Defense – Mistake as to the lawfulness of the entry is not a

defense as long as D intended the entry upon that particular piece of land. Intent to
trespass is not required – just intent to enter onto the land. The fact that D’s
conduct was socially useful or even beneficial does not affect liability.
b. Who May Bring Action? – May be brought by anyone in actual possession of the
land (i.e., tenant, squatter).
c. D Need Not Enter Onto Land – It is not necessary that D personally come onto the
land (i.e., trespass exists where D shoots across land, floods land, trees overhang
land)
d. What Constitutes Land? – Trespass may occur on, above, or below the land. Courts
generally construe P’s land to include air space and subsurface space to the height
or depth P can make beneficial use of such space.
e. Lawful Right of Entry Expires – A trespass to land may also exist where D remains
on P’s land after an otherwise lawful right of entry has lapsed.
f. Transferred Intent applies to trespass to land.
g. Damages Not Required – Any trespass to land authorizes P to get at least nominal
damages regardless of whether there is actual harm done to the land.
TRESPASS TO CHATTEL
1. Intent to intermeddle or disposses
2. Actions result in intermeddling or dispossession
3. Actual damage occurs
a. Intermeddling Defined – contact with chattel (not harm)
b. Mistake is Not a Defense – Defendants are liable for trespass to chattels even if
acting in good faith.
c. Trespass to Chattels and Conversion Distinguished – Conversion grants relief for

interferences with a chattel so serious in nature, or so serious in consequences, as
to warrant requiring D to pay its full value in damages. For those interferences not
so serious in nature of consequences, trespass to chattels is the appropriate action.
d. Transferred Intent applies to trespass to chattels.
e. Damages Required – actual damage must be sustained for there to be a trespass to

chattel. Damages can be in the following forms:
i. Impaired condition, value
ii. Dispossession for a substantial time
iii. Deprived owner for a substantial time
iv. Bodily harm to possessor or to something P has a legally protected
interest in
CONVERSION
1. An intentional exercise of dominion or control over a chattel
2. Which so seriously interferes with the right of another to control it that
3. The actor may justly be required to pay the other the full value of the chattel.
a. Intent - Conversion requires that the defendant intend to interfere (but not
necessarily harm) the victim’s possessory interest.
b. Mistake – The fact that D acted in good faith and under a reasonable mistake does
not prevent liability for conversion.
c. Good Faith Purchasers
i. PROTECTED – If purchaser receives title and possession he is not a

converter (i.e., original converter received through fraud)
ii. NOT PROTECTED – If purchaser takes possession, but does not receive
title (i.e., original converter received through theft)
iii. EXCEPTION – Purchase w/o title from a merchant who deals in property
of the like kind (i.e., steals bike, sells to bike dealer, buys from bike dealer)
d. What Can be Converted? Courts tend to limit conversion to tangible property.
EXCEPTION – intangibles with scientific, literary, or artistic value; things

that are normally merged with an instrument of monetary value (i.e.,
stock certificate)
e. Ways to Convert Chattel – conversion is greater than trespass to chattel

1. Acquiring possession of it – stealing it
2. Damaging or altering it – killing an animal; destroying property
3. Using it – violating terms of bailment
4. Receiving it - purchase from thief
5. Disposing of it - wrongful sale
6. Misdelivering it – delivery to wrong person
7. Refusing to surrender it – refuse to return to true owner
f. Factors to Determine Seriousness of Interference – Conversion requires that the

intermeddling with the victim’s property be a substantial interference. The
following factors help prove seriousness of interference:
1. Extent and duration of dominion or control

2. Intent to assert a right inconsistent with that of the owner
3. The actor’s good faith
4. Extent and duration of interference
5. The harm done to the chattel
6. The inconvenience and expense caused to the owner
g. Damages – D is usually required to pay the full value of property at the time of
conversion.
CONSENT
If P has consented to an intentional interference with person or property, no liability is found
Expressed Consent Consent is a valid defense when P has expressly submitted to

the action
YES
Implied Consent Consent is a valid defense when P’s actions led D to reasonably
believe consent is conveyed. Objective theory – reasonable
YES
person would believe P’s silence is consent
Customary Consent Consent is a valid defense when P’s actions are customary and
YES part of his behavior (professional sports) so long as they do not
exceed that custom.
- Sports players impliedly consent to contacts that are an
ordinary part of the game, even if those contacts violate the
rules of the game. But a player will generally not be held to
have impliedly consented to actions by fellow competitors that
are “unrelated to the normal method of playing the game” and
are done without any competitive purpose.
Consent by Fraud Consent is NOT a defense where D knew or induced a mistaken

belief on the part of the victim as to the essential character of
NO
the act itself.
Consent IS a defense when it is obtained by fraud or a misrepresentation

YES of a collateral matter.
CONSENT TO ILLEGAL ACTIVITY
Majority View D cannot consent to an illegal action, and therefore consent is

ineffective
Minority View Consent is effective even when the act is illegal
All jurisdictions Consent is ineffective for a protected class of persons (i.e.,

statutory rape laws; minor cannot give consent)
MEDICAL CONSENT
Outside of emergency situations, a doctor requires the consent of his patient to perform any surgery
Emergency Doctrine Doctors may perform surgery absent consent if:

1. PT is unable to give consent
2. There is a serious risk of bodily harm or death if surgery is delayed
3. A reasonable person would consent to surgery
4. Dr. has no reason to believe this patient would refuse treatment under
the circumstances
Extension Doctrine Doctor may perform surgery for an unanticipated medical

condition found during surgery if
1. Operation is in the area
2. What is found wasn’t anticipated; if anticipated, consent needed
beforehand
3. Postponement of surgery would lead to risk of serious bodily injury or
death
4. A reasonable person would consent to the surgery
5. Does not involve the destruction of an important bodily function
Doctrine of Informed Consent Doctor must disclose all risks to PT. If doctor fails to do
so and injury occurs, doctor can be held liable. Failure to disclose risk is negligence.
Exceeding boundary of consent is battery.
SELF-DEFENSE
1. Must have reasonable belief that
2. There is a threat of imminent battery or confinement
3. Can use reasonable force necessary to prevent the battery or confinement
Reasonable Belief Justified self-defense requires that D reasonably believes (even

incorrectly) that the action is necessary to protect himself from the
battery or confinement (subjective)
Imminent Harm Justified self-defense requires that the threat be imminent; a

preemptive strike will result in liability
Reasonable Force Responsive force must be proportionate to the harm threatened; D has
a burden to prove that the force was reasonable. If D uses more force
than is necessary, she may be liable for damages caused by the excess.
1. Must look at what is reasonable based on the circumstances
and factors such as weight, size, strength of both parties
2. Deadly force is only justified if D reasonably believes he
would suffer serious injury or death
Deadly Force D may not use deadly force unless she herself is in danger of death or
serious bodily injury. Even where D is threatened by such serious bodily
injury or death, she may not use deadly force if a lesser degree of force
would suffice to dispel the danger.
Provocation Insults and verbal threats do not justify self-defense unless

accompanied by a physical apprehension of harm
Retaliation The privilege to self-defense ends when the threat ends. Any use of
force past preventing the threat, is no longer self-defense.
Mistake Reasonable mistake is a protection from liability
RETREAT - THREAT OF DEADLY FORCE
Majority No duty to retreat ever
Minority (Restatement) Duty to retreat unless it can’t be done safely, or in victim’s

dwelling
RETREAT – THREAT OF NON-DEADLY FORCE
ALL JURISDICTIONS No duty to retreat ever
DEFENSE OF OTHERS
1. Reasonable force to protect 3rd party
2. From threat of imminent unlawful physical harm
Reasonable Force Responsive force must be proportionate to the harm threatened. The
force used may not exceed the amount needed to prevent the harm. If
D uses more force than is necessary, she may be liable for damages
caused by the excess.
MISTAKE
Mistake is treated differently depending on the jurisdiction. Some courts say:
1. Mistake IS NOT a defense under majority approach. Place D in the same

shoes of the person being defended and then apply the same principles you
would otherwise apply in self-defense. If the 3rd party is justified in using the
force used by D, then D is justified in using that force.
2. (Restatement) Benefit of reasonable mistake is allowed. D can use force to

the extent such force reasonably appears to be justified in defense of 3 rd
party.
DEFENSE OF PROPERTY
Property owner can use reasonable force to protect his/her real or personal property.
Reasonable Force The property owner may use only as much force as appears necessary
to protect the property.
Deadly Force Deadly force can NEVER be used to protect property alone. However,
property owner may be privileged to use deadly force to prevent certain
felonies, namely those involving death, serious bodily injury, or the
breaking and entering of a dwelling place. Apply self-defense rules.
Verbal Demand REQUIRED to make a verbal demand to stop before using force, unless it
reasonably appears that violence or other harm will occur immediately,
or that the request to stop will be useless.
Mechanical Devices Owner is privileged to use them only if he would be privileged to use a
similar degree of force if he were present and acting himself.
Warning Signs Most courts require use of warning signs if owner uses non-deadly
mechanical devices to protect his property. However, the warning sign
does not protect owner from liability if the mechanical devices causes
serious bodily injury to the intruder.
MISTAKE
A reasonable mistake of fact by the property owner will have different consequences, depending on
whether the mistake relates to the existence of the danger, or, instead, to the intruder’s own lack of
privilege.
Mistake as to Danger If property owner mistakenly but reasonably believes that force is
necessary to protect her property, her use of force will be privileged,
provided there is a real non-privileged intrusion.
Mistake as to
Intruder’s Privilege If property owner reasonably believes that the intruder has no right to
be there, and it turns out that the intruder’s presence was in fact
privileged, the property owner’s use of force will NOT be privileged.
RECOVERY OF PROPERTY
A D is privileged to use
1. Reasonable force when
2. In fresh pursuit
3. After making a request if he is recapturing
4. Unmistakenley
5. And wrongfully stolen property
Wrongful Taking The privilege exists only if the property is taken wrongfully from the
owner. If the owner parts willingly with possession, but then has a right
to repossess, she will not be able to use force to regain the chattel.
Reasonable Force The force used must be reasonable in the circumstances, and deadly
force CAN NEVER be used
Hot Pursuit The privilege exists only if property owner pursues the thief without
undue delay to recover the chattel. If a substantial amount of time
passes, the privilege is lost and D must resort to legal authorities to
recover property.
Demand Required Force cannot be used unless the thief resists; therefore, demand for the
return of the property must first be made before force can be used
Mistake Mistake IS NOT a defense. D is liable.
SHOPKEEPER’S PRIVILEGE
1. Can use reasonable force to detain a person
2. For a reasonable period for investigation purposes
3. Based on a reasonable belief that goods have been stolen
Mistake Reasonable mistakes do not prevent shopkeeper from asserting

privilege
Location Some courts require the shopkeeper to stop the suspected thief on the
store premises. Other courts extend the privilege to the immediate
vicinity of the store.
Reasonable
Investigation The investigation should be conducted in a reasonable time and
manner. Only use the amount of time necessary for a quick
investigation.
No Humiliation The investigation cannot cause unnecessary humiliation to the alleged

thief
*************************************************************************************
NECESSITY
This defense can only be used as a defense to trespass to land, trespass to chattels, and conversion.
Public Necessity D interferes with, damages, or destroys the victim’s property under a
reasonable belief that it will prevent a public disaster. Applies to both
public officials and private citizens. The harm to be caused must be less
serious than harm to be avoided.
There must be a real or apparent risk of danger to not be held liable.

This is a complete defense. D is not liable for costs resulting from the
damage caused to P’s property.
Private Necessity D interferes with, damages, or destroys the victim’s property under a
reasonable belief that it will prevent a greater harm to P, P’s property,
or a third party, or a third party’s property. The harm to be caused must
be less serious than harm to be avoided.
This is NOT a complete defense. P will be held liable to pay for any
damages caused to D’s property.
Privilege only lasts until the danger has passed. Any excess = trespass.
The privilege of necessity means the landowner cannot take even what
would otherwise be lawful action against intruder.
Mistake Mistakes are OK as long as there is an apparent necessity. This is to

encourage people to help.
JUSTIFICATION
This is a catch-all defense used where there are good reasons for exculpating D for what would
otherwise be an intentional tort.
No other defenses work, but one is justified in his actions and should not be liable.
Conduct that would otherwise be tortious is justified under the circumstances.
Factors to Consider
1. Need to protect people and/or property
2. Need to investigate
3. Feasibility and practicality of other courses of action
NEGLIGENCE
Negligence is conduct which falls below the standard established by law for the protection of others
against unreasonable risk of harm.
1. Duty to exercise reasonable care

2. Breach of duty – a failure to conform to the required standard
3. Causation – reasonably close causal connection between the conduct and the resulting injury
a. Proximate Cause
b. Cause in Fact
4. Damage resulting to the interests of another
DUTY OF CARE
D has a legal obligation to follow a standard of care to protect others from unreasonable risks. To be
negligent, a person must create an unreasonable risk of harm.
STANDARD OF CARE
D must act as would a reasonably prudent person in the same or similar circumstances. Failure to meet
this objective standard constitutes a breach of duty to use reasonable care.
Custom Custom is evidence of standard of care. Custom must be fairly well-

defined so D can be charged with its knowledge. If D is shown to
have deviated from a well-established custom which he should have
known about, that deviation may be considered a breach of duty.
Adherence to some customs can be negligent. The custom must be

reasonable and D must still act reasonably.
Lack of Knowledge Even when lacking knowledge, D has a duty to bring himself to the
level of knowledge of the reasonably prudent person. Ignorance is
no excuse.
Superior Knowledge If D has skills or knowledge that exceed those possessed by most
others, these skills or knowledge are circumstances to be taken into
account in determining whether D has behaved as a reasonably
careful person.
Duty to Investigate D is obligated to make reasonable inspections of inherently

dangerous objects, like a car. He is charged with having common
knowledge.
Physical Disabilities Physical characteristics of D may be taken into account. D must act
as would a reasonably prudent person with that same disability in
the same or similar circumstances.
Mental Disabilities D’s mental characteristics are NOT taken into account. Neither
insanity nor mental deficiency relieves D from liability; his conduct
must still conform to that which a reasonably prudent person would

exercise.
Emergency To qualify as an emergency, the event must be unforeseen, sudden,

and unexpected. D will not be held to the same standard of care as
one who has ample time for thinking about what to do. Instead, D
must behave as would a reasonably prudent person in a similar
emergency situation.
Children D must act as would a child of like age, intelligence, and experience
in the same or similar circumstance.
Exception – Restatement & some courts hold D to an adult standard
when D engages in activities which are normally undertaken only by
adults, and for which adult qualifications are required.
Intoxication D cannot claim that his intoxication stripped him of his ability
comprehend and avoid the danger; he is held to the standard of a
reasonably prudent sober person.
PROFESSIONAL STANDARD OF CARE

Professionals are expected to have and exercise the knowledge, training, and skill normally possessed by
members of that profession in good standing in similar communities.
Proof Deviation from the standard must be established by expert

testimony; unless, the negligence is grossly apparent to which even
a layperson would recognize the act or omission as a deviation from
the standard.
Objective Standard D’s own training and experience are irrelevant in determining
whether she exercised due care. The issue is whether D matched
the standard of care commonly found among other members of the
same profession within the community.
MEDICAL MALPRACTICE
Physicians are expected to have and exercise the knowledge, training, and skill normally possessed by
physicians in good standing in similar communities.
Locality Rule Majority requires DR to exercise same standard as those in the

same or similar community. Minority apply a national standard or
local community standard.
Duty to Inform A doctor must inform the patient of material risks before securing
consent for treatment. If doctor is aware the patient would want to
know the risk, he is obligated to disclose it.
Material Risks - risks that are likely to affect the patient’s decision
Majority Risk is material if the reasonable doctor thinks the patient should
know it
Minority Risk is material if the reasonable patient would want to know it.
Economic/
Research Courts have recognized that failure to inform patient of doctor’s
intent to use treatment of the patient for economic or research
purposes is negligence for failure to obtain informed consent.
NEGLIGENCE ELEMENTS FOR FAILURE TO INFORM

1. D failed to inform P of material risks (objective/subjective)
2. P wouldn’t have the surgery if he knew of the risks
3. The risk not disclosed actually occurs
DEFENSES
1. Patient already knew the risks (common knowledge)
2. Emergency Doctrine or Extension Doctrine applies (see pg. 12)
3. Doctor’s judgment is used to determine if disclosure would be detrimental to the
patient – BIG LOOPHOLE
VIOLATION OF STATUTE (*establishes duty and breach)

Some criminal and administrative statutes, if violated, can hold D civilly liable for negligence. The court
applies a three-prong test to determine if the statute can create a standard of care that, if breached, will
hold D liable for negligence.
THREE-PRONG TEST
1. Class - Was the person in the class the legislature intended to protect with the
statute?
2. Harm - Was the harm caused the type of harm the legislature meant to prevent with
the statute?
3. Discretion - The court can then exercise its discretion to not use the statute for
negligence. The court looks at 5 factors: (i) new tort created, (ii) vague, (iii) no fault
of D, (iv) too harsh, and (v) no harm from violation
LEVELS OF NEGLIGENCE
If there is a statute that supplies the standard of care and it has been violated, then depending on the
court, the statute may prove different levels of negligence. P has the burden of proof for all three.
MAJORITY Negligence Per Se

 Defendant has burden of production for excuse
 Jury Must find for breach of duty if D does not produce a valid excuse
Excuses
 Can use reasonable care to comply with statute as an excuse
 Violation reasonable due to incapacity

 D does not know of occasion for compliance
 D is unable to comply after reasonable diligence or care
 D is confronted by emergency not due to his misconduct
 Compliance would have led to greater risk to actor or others
MINORITY Prima Facie Negligence

 D has burden of production to rebut the presumption
 Jury must find for breach of duty if D does not rebut the presumption;
requires evidence of reasonable care or excuse
RARE RULE Some Evidence

 No burden of production on D
 Violation of the statute is some evidence that D has committed
negligence, and the jury may accept or reject it at its discretion
PRIVITY OF CONTRACT
The duty of behaving towards P with the degree of care that a reasonable person would exercise in like
circumstances. Must evaluate the facts and circumstances to determine whether D’s conduct met this
duty.
NONFEASANCE A passive failure to take action. If suit is brought by a party to

the K, and P’s claim is that D has simply failed to perform a
promise, P’s suit is unlikely to be found to be a tort claim, and
instead, is a breach of contract claim.
EXCEPTIONS:
1. Utilities – Common carriers and public utilities have
undertaken a duty to protect the public and are liable in
tort regardless of the existence of a K
2. Misrepresentation – D made a promise that he had no
intent to perform.
MISFEASANCE D misperforms the K or acts deceitfully. D starts to perform his

promise under the K, but fails to complete it (i.e., DR under
contractual obligation to perform surgery, performs the surgery,
but does so negligently)
FAILURE TO ACT
Generally, a person has no duty to help others, including professionals who may be in a unique position
to offer assistance.
EXCEPTIONS
SPECIAL RELATIONSHIP D will have a duty to assist P if there exists a special relationship.
Special relationships include:
1. Common carriers with their passengers
2. Innkeeper with its guests
3. Business or possessor of land that holds its premises open
to the public with those who are lawfully on the premises
4. An employer with its employee only when in imminent peril
5. A school with its students; generally not universities
6. Landlord with its tenant
7. A custodian with those in its custody
CREATION OF RISK D has a duty of warning and assistance if the danger or injury is
due to her own conduct, or to an instrument under her control.
MAJORITY/MODERN – D must render assistance or warning

even if the harm was caused innocently
ASSUMPTION OF DUTY Once D voluntarily begins to render assistance (even if she was
under no legal obligation to do so) she may not discontinue aid
if so doing would leave P in a worse position than he was in
when D began assistance
DUTY TO 3D PARTIES There are some instances where D can be held liable for failure
to take reasonable steps to protect a third party from harm
based on D’s special relationship to the party causing the harm.
The duty arises where D has actual knowledge or special reason
to know of the potential injury. D must take reasonable steps to
prevent it.
ECONOMIC LOSS CAN SUPPLY A DUTY

These cases fall into two categories: (1) Negligent misrepresentation or misstatement causing economic
loss; and (2) Negligent acts causing economic loss.
ECONOMIC LOSS +
PERSONAL JURY D behaves negligently to P, and causes P to suffer both personal
injury and economic loss. All courts agree that P can recover
damages for the personal injury as well as his economic loss.

ECONOMIC LOSS +
PROPERTY DAMAGE D behaves negligently to P, and causes P to suffer both property

damage and economic loss. All courts agree that P can recover
damages for the property injury as well as his economic loss.

PURE ECONOMIC LOSS MAJORITY - D's negligence causes physical injury or property
damage to X, but only economic loss to P. Nearly all courts
agree that P may not recover anything for his economic loss
since he has not suffered any personal injury or property
damage. Foreseeability isn't enough.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Traditionally, the right to recover for emotional distress was limited to circumstances in which the victim
himself was injured and emotional distress was a “parasitic” item of damage.
IMPACT RULE Courts allow recovery when the victim narrowly escapes
imminent serious physical harm. These courts are split as to the
necessity of a physical manifestation of the NIED:
MAJORITY - A physical manifestation is required, but courts

differ as to what constitutes a manifestation (outward
appearance of emotional distress)
MINORITY - Some courts do not require a physical
manifestation

MINORITY - Courts continue to apply the rule that the victim
MUST suffer actual physical contact by D's negligence in order
to recover for mental distress.
HYPERSENSITIVITY P may not recover for an extreme reaction to an act which

normally would not cause emotional distress, unless D had
special knowledge of P’s abnormal sensitivity.
BYSTANDER RECOVERY
When P suffers emotional distress because of negligent injury to a third person, some jx also allow
recovery. The courts are split as to whom D owes a duty. You will need to apply all three tests:
FORESEEABILITY TEST 1. P is closely related to the injury victim;

2. P is present at the scene of the injury when it occurs and
aware of its occurrence;
3. P suffers severe emotional distress as a result which is not
an abnormal response to the circumstances.
ZONE OF DANGER Very limited duty; D is only liable to those persons who were in
the zone of danger at the time of the negligent act. P is
sufficiently close to the dangerous event that she herself is at
some point in danger of immediate bodily harm. She escapes

bodily harm, but suffers mental distress from the episode.
3d REST. 48 An actor who negligently causes sudden serious bodily injury to

a third person is subject to liability for serious emotional harm
caused thereby to a person who:
1. Perceives the event contemporaneously; and
2. Is a close family member of the person suffering the
bodily injury.
EXCEPTIONS: Negligent transmission of death telegrams and

negligent handling of dead bodies do not require a physical
manifestation of emotional distress.
FAMILY MEMBER Sibling, parent, child, or spouse
PERCEPTION IS
CONTEMPORANEOUS P must see or hear the accident at the moment it happens; not enough to
learn of it later
SERIOUS BODILY INJURY Death, disfigurement, loss of a body party or function. Bruises, cuts, broken
bones are not sufficient.
SUDDEN Injury must occur in a “sudden and dramatic manner”. Slow deterioration is
not enough.
*************************************************************************************
OUTSIDE THE PREMISES

Generally, a landowner has no duty to those outside the land for natural conditions on the land, even
when a risk of serious harm has been created.
TREE EXCEPTION Most courts hold that a landowner is liable for trees if he knew
or should have known the tree was defective and he failed to
take reasonable precautions.
URBAN v. RURAL Some jx use an urban/rural distinction, where urban

landowners are required to exercise reasonable care in
preventing trees from causing harm, while rural landowners
have no duty. Trend is to look at factors.
SELF-HELP Some jx allow self-help where a landowner may remove tree

branches and roots protruding from neighboring property onto
his own.
SURFACE WATER A landowner is not liable for the normal flow of surface water.
But if owner alters the premises so as to affect the flow of
water, he may be directly liable for negligence or nuisance.
ARTIFICIALLY ALTERED
PREMISES Owner responsible for reducing risk if he knew or should have
known of the danger to outsiders. Does not have to prevent the
risk, but must take reasonable precautions. To determine what
precautions are required, the court looks weighs the burden
and the risks.
ON THE PREMISES
Traditionally, liability depended on P’s status; whether he is a trespasser, a licensee, an invitee, or
something else.
TRESPASSER One who enters or remains on the property of another w/o

permission, regardless of intent or awareness.
DUTY – Owner only has a duty to a trespasser once his presence

is known or should have been known. If owner is aware of
frequent trespassers, owners must exercise reasonable care
b/c he knows they will be on the property.
LICENSEE Someone who enters the land with the express or implied
consent of the owner, such as a social guest or those visiting for
their own personal business. (also, first responders)
DUTY – Owner has no duty to inspect or make the premises

safe, but is obligated to warn of dangers that are known to him
but that are unknown to the license.
INVITEE Someone who comes onto the land with the express or implied
consent of the owner. Three types – invitee who financially
benefits the owner; invitee on public land; safety inspectors
DUTY – Owner must exercise reasonable care, and must take

affirmative steps to eliminate dangers of which he knew or
should have known. Requires foreseeability.
SCOPE OF INVITEE
TIME An invitee has a reasonable amount of time to accomplish his
business; after that he becomes a licensee or trespasser.
GEOGRAPHY If invitee is given permission to enter a part of the premises not

usually open to the public, and for his own benefit, he is then
considered a licensee and the standard of care is reduced to
duty to warn.
MERGING OF STATUS / MODERN APPROACH

A number of courts have replaced the status approach with a unitary standard of reasonable care to all
persons on D’s land, regardless of their status as trespasser, licensee, or invitee.
VARIATIONS 1. Some states have retained the categories
2. A minority of states have merged all categories and

adopted a reasonable standard of care
3. Others have merged licensee and invitee, but left

trespasser as a separate status
PERSONS OUTSIDE THE ESTABLISHED CATEGORIES
CHILDREN Because society has an interest in protecting children, the

standard of care is raised when dealing with child licensees and
trespassers
CHILD LICENSEES Courts may impose a duty to warn child licensees of dangers
which an adult would readily know. “Mere warnings” may be
deemed insufficient.
COMMON HAZARDS Where a child is of sufficient age to appreciate the risk of

“common hazard” (drowning, fire, falling, machinery, etc.),
recovery may be denied
STATE OF NATURE Courts are reluctant to impose a duty to protect children from
naturally-occurring injuries
ARTIFICIAL CONDITIONS R2T 339 – A possessor of land is liable for physical harm to children
trespassing thereon caused by an artificial condition upon the land if:
- The owner knows children are likely to trespass on the place as it exists;
- The owner knows or has reason to know of a dangerous condition, and he realizes or
should realize that there is an unreasonable risk of death or serious bodily harm to the
children;
- The children, because of their youth, do not realize the risk involved in intermeddling
with the place at it exists
- The utility of maintaining and burden of eliminating the danger is slight compared with
the risk to the children
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise
protect the children
*************************************************************************************
LESSOR AND LESSEE
Generally, a landlord has tort immunity for harm caused to tenants and guests. However, changes in
both tort and property law have led to some exceptions, which may even extend to guests.
EXCEPTIONS
1. Undisclosed Dangerous Conditions Known to Lessor – R2T 358
LL may be liable where T or guest is injured by a defect of which LL knew or should have
known and T did not know
2. Dangerous Conditions Existing When Lessor Transfers Possession – R2T 379
If a LL transfers property in a condition he knows or should know will cause unreasonable
risk, he is liable as if he remained in possession
3. Common Areas – R2T 360-361
LL has obligation to exercise reasonable care in inspecting and repairing common areas over
which he has retained control.
4. Contract to Repair – R2T 357
If LL has a K to repair premises with T, traditionally an injury which resulted from failure to
do so could only be remedied with a cause of action for breach. This is changed now and
many jx allow tort action for it as well. (just because there is a breach; doesn’t mean tort)
5. Negligent Repair
If LL agrees to repair T’s property, and does so either negligently or incompletely without T’s
knowledge, there is liability.
- Known to Tenant – But where T knows that repairs are incomplete, LL is not liable for
any injuries.
MODERN TREND Courts are starting to move away from the ownership concept
because T does not have absolute control of the premises; LL
retains much of it. Therefore, LL has a duty to exercise

reasonable care.
IMPLIED WARRANTY OF
HABITABILITY Some jx view a lease as a K rather than a conveyance and
presume that there is an implied warrant that he premises are
safe. These jx apply the reasonable care standard.
DUTY OF PROTECTION
FROM CRIMES / 3RD PARTY Most courts now recognize that LLs have a duty to provide
security for T in common areas they control by using reasonable
care to minimize foreseeable risks because LL has control over
the premises and T does not. LL must use a reasonable care
standard. What is reasonable is determined by the risks and
the costs of precaution. (LL must have notice of the same type
of crime that actually occurred, and crime must occur w/n part
of property that is under LL control).
BREACH OF DUTY
Failure to conform to a required standard. P must establish breach of duty by showing that D’s conduct
created an unreasonable risk of harm. A standard of care must still be established.
Ways to determine RISK to determine if there was a BREACH OF DUTY
Unreasonable Risk - Timing P must show that D’s conduct, viewed as of the time it occurred,
without the benefit of hindsight, imposed an unreasonable risk
of harm.
Inherently Dangerous
Objects Some objects are so dangerous that it is negligent to leave them
lying around without special handling. But other objects pose
less of a danger, and it will not be negligent to leave them
around even if it turns out that, unexpectedly, they cause harm.
Unreasonable Risk – Test Hand Balancing Test is used when someone wants a specific
precaution to be taken, and it will cost money to take the
precaution.
HAND FORMULA Use when someone wants a specific precaution to be taken and
it costs some kind of money.
B<LxP
BURDEN D would have to bear to avoid the risk
LOSS equals the seriousness of injury
PROBABILITY that harm will occur from D’s conduct
PROOF OF BREACH Circumstantial Evidence or Res Ipsa Loquitur
CIRCUMSTANTIAL EVIDENCE
Evidence that allows the jury to draw a reasonable inference which establishes D’s unreasonable
conduct.
Weight of Evidence Eye witness testimony isn’t necessarily better than

circumstantial evidence; weight of evidence depends on the
evidence itself.
Notice P must show that D had actual or constructive notice of the risk
Actual Notice Actual notice by creation of unreasonable risk by D or his

employees. P may be able to establish that D’s operation of
business is dangerous enough to act as notice itself.
Constructive Notice P can prove that the condition which caused the injury existed
long enough that D was aware (actual notice) or should have
been aware of it (constructive notice). Constructive notice can
be established if D failed to make reasonable inspections of the

premises because they should have been aware of the defect.
RES IPSA LOQUITUR

A type of circumstantial evidence from which courts may infer that D was negligent—the incident itself
is evidence of negligence. To prove negligence via res ipsa loquitur, P must be able to establish:
1. Event Seldom Occurs Without Negligence

It must be more probable than not (more than 50%) that the accident causing the
injury is the type that would not normally occur unless someone was negligent. The
event must be such that in the light of ordinary experience it gives rise to an inference
that someone must have been negligent.
- MAJORITY – Allows expert testimony when it involves an event that does
not ordinarily happen without negligence.
- MINORITY – Expert testimony is not allowed. The negligence must be

known to a lay person.
2. Other Possible Causes Are Sufficiently Eliminated

Must be more probable than not (more than 50%) that the instrumentality that
caused P’s injury was in exclusive control of D at the time of the negligence.
3. Harm Caused Must be Within the Scope of Duty Owed to P
EFFECT OF RES IPSA LOQUITUR

The doctrine of res ipsa loquitur can create three different effects:
EFFECT 1 MAJORITY - The jury can infer negligence in which case

the jury may decide at its discretion that negligence
happened.
EFFECT 2 MINORITY - There is a presumption of negligence in

which case negligence is presumed unless D can show
otherwise (D has the burden of production). If D fails to
rebut the presumption of negligence, jury must find for
P.
EFFECT 3 Burden of proof shifts. D has the burden of producing

evidence in his favor. D must actually prove D is not
negligent.
MULTIPLE DEFENDANTS
If there are two or more defendants in control of the plaintiff’s interests in a medical environment, each
of whom has a duty to render reasonable care, recovery is allowed if all of the defendants were working
as a single unit (unless an individual defendant can prove his innocence or establish another’s
negligence).
CAUSATION
P carries the burden of proving that D’s actions were the cause-in-fact and proximate cause of the
injuries.
STANDARD OF PROOF –
PROBABILITY OF CAUSATION Cause in fact requires the party with the burden of proof to
establish, on a more probable than not basis, a cause and
effect relationship between an actor's negligent conduct
and the harm suffered.
- P has the burden of proof, but need not show
absolute proof of causation.
- P can show the negligence greatly multiplied the

chances of injuries of the type incurred.
- Jury can infer “but for” causation based on common

knowledge and community experience.
EXPERT TESTIMONY In some cases, the court will require expert testimony to
interpret a case which is outside the common knowledge of
an ordinary person.
SCIENTIFIC EVIDENCE /
DAUBERT TEST Scientific evidence can be used to establish cause.
Court has to establish: (i) the experts are using good
science to reach their conclusions, and (ii) The science
logically advances a material part of the case.
ACTUAL CASE / FACTUAL CAUSE / CAUSE-IN-FACT
BUT FOR TEST

An act or omission to act is the cause in fact of an injury when the injury would not have occurred but
for the act.
CONCURRENT CAUSES
Two events concur to cause harm, and either one would have been sufficient to cause substantially the
same harm without the other. It is generally stated that each of these concurring events is a cause of
the injury, insofar as it would have been sufficient to bring that injury about. (you can’t say that either
factor is a but-for cause, instead they are both substantial factors in bringing about the result)
SUBSTANTIAL FACTOR TEST

Where each of the events would have been sufficient by itself to bring about the harm, the test
for each event is often said to be whether it was a substantial factor in bringing about the harm
(not a but-for cause).
THIRD RESTATEMENT - does not use term “substantial factor” but still applies the
traditional rule that two concurrent causes are deemed to be a factual cause)
ALTERNATIVE CAUSES – SUMMERS RULE

When two or more people have been negligent causing uncertainty as to which one caused P’s injury. P
must only prove that one of them had to be the cause of the harm (with uncertainty as to which one).
The burden of proof then shifts to Ds, and each must show that his negligence is not the actual cause.
LOSS OF CHANCE DOCTRINE

Some courts have found liability where a medical misdiagnosis decreases a patient’s chance for survival,
even when it is shown that the patient probably would have died even under a proper diagnosis.
RULE But for the doctor’s misdiagnosis (negligence), would the

patient have been harmed (reduction in chance or survival)? If
so, some courts allow a recovery proportional to P’s reduced
chances of survival.
INJURY The injury is not the wrongful death; it is the reduction of

chance of survival itself that is the injury.
PROXIMATE CAUSE
In addition to being the cause-in-fact, D’s negligence must be proven to have been the proximate cause
of the injury without any superseding intervening causes.
UNFORESEEABLE CONSEQUENCES:
MAJORITY Leading test for proximate cause focuses on whether D should have reasonably
(Wagon foreseen, as a risk of her conduct, the general consequences of the type of harm
Mound 1) suffered by P. (3rd Restatement Follows this)

MINORITY If the act would or might probably cause damage, the fact that the damage it in fact
(Wagon causes is not the exact kind of damage one would expect is immaterial, so long as the
Mound 2 / damage is in fact directly traceable to the negligent act, and not due to the operation
Polemis) of independent causes having no connection with the negligent act, except that they
could not avoid its results. (3rd Restatement Rejects This)
**Analyze both majority and minority perspectives. If you satisfy the majority then you will satisfy the
minority.

UNFORESEEABLE PLAINTIFF: (3rd Restatement Rejects This)
MAJORITY D only owes a duty to parties when it is foreseeable that his negligence will create risk
(Cordozo) of harm to them, they are in the “zone of danger.” If D does not owe a duty to P then D
isn’t liable for what happens to P.

MINORITY D owes a duty to the whole world, which is determined from a causation standpoint and
(Andrews) not from a duty standpoint. There must be a direct connection without too many
intervening causes. Factors in looking at the connection:
 Must be something without which the event wouldn’t happen
 Must be 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 the usual judgment of mankind, to produce the result?
 Could result be foreseen?
 Too remote from time and space?
INTERVENING CAUSES:

GENERAL Intervening causes are events which take place after the negligence and contribute to
RULE the resulting injury. They MAY remove liability from D if the intervening cause is a
superseding cause. To be a superseding cause, the cause must be extraordinary and
not foreseeable under the circumstances. (3d Restatement – if harm occurs outside
scope of risk, no liability. Causes that are unforeseeable, unusual, or highly culpable
bear on the likelihood that the harm is outside the scope of risk)

1.Subsequent medical malpractice – D is liable unless doctor’s negligence is extraordinary
2.Negligent rescue – Rescue attempts will normally not be a superseding cause, unless it is
performed in a grossly careless manner. The rescue doctrine allows an injured rescuer to sue
D for causing the danger that required the rescuing in the first place. To achieve rescuer
status one must demonstrate:
A. D created the peril and was negligent to the rescuer
B. The peril was imminent
C. A reasonably prudent person would conclude the peril exists
D. The rescuer acted with reasonable care
3.Escape Rule - D is liable to people trying to escape from D's negligence, or if their reactions
cause something bad to happen
4.Subsequent diseases and accidents - Because of D's negligence, P is harmed by disease or by

another accident due to P's weakened state. Factors to consider:
A. Length of time between first and second injuries
B. Location and nature of second injury
C. Reasonableness of plaintiff’s conduct
D. Character of second accident
SPECIAL RULES
EGGSHELL PLAINTIFF
A classic rule is that D “takes the plaintiff as he finds him.” When D’s negligent conduct causes harm to
P that, because of a pre-existing physical or mental condition or other characteristic of P, is of a greater
magnitude or different type than might reasonably be expected, the actor is nevertheless subject to
liability for all such harm to the person.
NY FIRE RULE
Liability for proximately caused negligence may be limited by policy. D is only liable for the first house
that catches fire and not all the houses that may follow.
PROFESSIONAL RESCUER RULE

Some states preclude recovery only if risk created was reasonably anticipated by the job.
CONTRIBUTORY NEGLIGENCE
Bars recovery at common law.
An affirmative defense. P who does not exercise reasonable care for his own safety and proximately
contributes to his own injuries is completely barred from recovery.
- P completely barred from recovery
- D has burden of proof
- Reasonable care requires P to exercise ordinary care of a reasonably prudent person (apply
special standards i.e., child, injured, disability).
NOT A DEFENSE TO:

1. Intentional tort
2. Willful and wanton negligence
3. Negligence per se – a statute was enacted to protect a class of which P was a member
AMELIORATING PRACTICES
Certain practices were created to soften the blow of the harsh penalty of no recovery for P.
LAST CLEAR CHANCE DOCTRINE

If D has the chance to avoid the injury once P no longer has the chance to do so, and D
fails to do so, D should bear the loss. Problem is that it leads to D bearing entire loss
even though P was also negligent; whole loss is still placed on one party or the other.
COMPARATIVE NEGLIGENCE
An affirmative defense. Most courts no longer use contributory negligence and instead apply a
comparative negligence. Attempts to divide liability between P and D in proportion to their relative
degrees of fault. Recovery is reduced by a proportion equal to the ratio between his own negligence
and the total negligence contributing to the accident.
PURE P is allowed to recover even if his fault is greater than D’s.
MODIFIED P may only recover if his fault is less than D’s.

- Less Than – Some JX apply rule that P’s negligence
must be less than D’s. If P was 50% or more
negligent, he cannot recover.
- Not Greater Than – Some JX state that if P’s
negligence is not greater than D’s, he may recover.
Thus, P and D’s negligence may be equal and P can
still recover.
MULTIPLE D’s MAJORITY – Aggregate Rule – Add fault of Ds and compare to

fault of P. P’s fault must be less than the sum of Ds’ fault.
MINORITY – Individual Rule – Compare P’s fault to each D

individually. P must be more at fault than an individual D to
recover from that D.
ASSUMPTION OF THE RISK

An affirmative defense. P voluntarily assumes a risk of harm arising from the negligent or reckless
conduct of D; P is completely barred from recovery.
I. EXPRESS MAJORITY
P explicitly agrees with D, in advance of any harm, that P will not hold D This is a separate
liable for certain harm. defense that completely
bars recovery
EXCEPTIONS:
1. Protected party intentionally causes harm or engages in gross negligence
2. Unequal bargaining power – the more essential the service, the less bargaining
power given to P
3. Transaction involves a public interest (adhesion contract)
II. IMPLIED
P assumes risk by her conduct. Requires:
1. Knowledge – P must subjectively know of the risk and appreciate the magnitude
- P must have actual knowledge of the particular type of risk that eventuated,
not some other vaguely similar risk
2. Voluntary – P must voluntarily encounter the risk
a. What were the other alternatives?
b. What was the risk to others of using alternative?
c. Inconvenience to P of using alternative?
PRIMARY ASSUMPTION OF RISK

So long as D has not assumed a duty of care to P, or has not breached any MAJORITY
duty of care that he might have assumed, then he is not negligent. If D is This is a separate
not negligent then there is no negligence of D with which to compare the defense that completely
putative negligence of P. bars recovery
SECONDARY ASSUMPTION OF RISK

P voluntarily acts to encounter a known risk. JX treat differently.
1. Reasonable – P is barred from recovery b/c he voluntarily exposed himself to a
known risk even if exposure may be reasonable. Example – LL makes building
flammable and father enters home to save his son.
2. Unreasonable – P is barred from recovery b/c he unreasonably exposed himself to a

known risk; failed to exercise the care of a reasonably prudent person. Example – LL
makes building flammable and man goes in to save hat.
MAJORITY MINORITY
Merges with contributory negligence This is a separate defense that completely
bars recovery
STATUTE OF LIMITATIONS
Complete bar to recovery for actions that do not meet its time limits. Most SOL provide that the time
within which to file begins to run when the cause of action "accrues," leaving to the courts to fix that
point.

TRADITIONAL APPROACH
Right of action accrues immediately upon the infliction or occurrence of injury and that mere ignorance
or failure of P to discover his cause of action or the subsequent resulting damage does not toll the
statute.

DISCOVERY DOCTRINE (MAJORITY)
Exception usually used in med mal cases. Statute does not begin to run until the negligent injury is, or
reasonably should have been discovered. SOL begins to run when a person gains sufficient knowledge
of facts that would put a reasonable person on notice of the existence of a problem or potential
problem such that he would inquire further about it.

SECOND INJURY
MAJORITY, if P files action but later develops a more serious disease than first thought, she is barred
from filing a second suit to recover on the more serious disease. MINORITY allow P to recover a second
time if she can show that she was later diagnosed with a separate and distinct disease due to the same
negligent act.
IMMUNITY
A complete defense to tort liability is given to an entire class of persons based on their relationship,
status or position. Different from privilege or excuse because it admits the existence of the tort.
PARENT AND CHILD IMMUNITY

At common law, a child could not sue his parent and a parent could not sue his child.

*MAJORITY still recognize the immunity, but provide specific exceptions:
1. Intentional or willful - when the action is for personal injury inflicted intentionally, or is
willful or wanton.
2. In loco parentis - where D is a step parent or guardian that has not adopted the child
i. Some courts look at factors such as live in same house; financial support; parental type
relationship
2. Automobile Suits - There is already a RPP standard for motor vehicles and it is easy to assess
3. Business Activity - where the injury occurred during the course of business activity by D

GOVERNMENTAL IMMUNITY
Federal and state governments are sovereign and have immunity unless there is a statute that waives
immunity. States are allowed to decide their immunity level.
HOW JOINT AND SEVERAL LIABILITY ARISES

Determine if each D was a proximate cause of P’s harm. If more than one person is a proximate cause of
P’s harm, and the harm is indivisible, then each D is liable for the entire harm. Each party is individually
responsible for the entire obligation, but a paying party may have a right of contribution and indemnity
from nonpaying parties.
INDIVISIBLE HARM Individuals who act independently but together to cause a

single, indivisible tortious injury.
CONCERT OF ACTION If an individual intentionally aids or encourages another to

commit a tort, that person is as liable as the party who actually
committed the physical act because they have furthered the
common design.
VICARIOUS LIABILITY Liability that a supervisory party (such as an employer) bears for
the actionable conduct of a subordinate or associate (such as an
employee) based on the relationship between the two parties.
APPORTIONMENT OF DAMAGES FOR JOINT AND SEVERAL LIABILITY

How courts determine how much liability to assign to each joint tortfeasors
DIVISIBLE HARM Harms that can be readily apportioned into those caused by one
D and those caused by the other; each D is responsible only for
the harms that he himself caused.
CONCURRENT TORTFEASORS When an injury caused by two or more tortfeasors is indivisible,

all are liable for the full damages, which are not apportionable.
- Death or Insanity – Where two or more tortfeasors

separately but jointly cause death or insanity of P, the effect
is also treated as an indivisible harm.
- Successive Torts – When a victim suffers aggravation of an

injury or a new injury in a successive tort, whether or not
the damage of the second injury is attributable to the first,
depends on proximate causation.
o Foreseeable – When a second accident is the

foreseeable result of the first negligent act, the first
tortfeasors is liable for all damages that follow,
while the successive tortfeasors are only liable for
their share.
o Unforeseeable – If injury from a successive tort is

not foreseeable result of the first negligent act, then
it is a superseding cause and each tortfeasors is

liable only for the injuries caused.
CONCEPTUALLY DIVISIBLE D has the burden of proof in determining the allocation of harm
in cases where the injury is conceptually divisible, but will be
impractical to apportion damages.
POTENTIAL DAMAGE The court may reduce D’s liability based on potential
diminutions in the value of the interest of P. (i.e., As boy falls
from bridge, he grabs power lines owned by D and is
electrocuted. P may recover from D only the difference
between what his life prospects were immediately before he
touched the wire and what they were worth after (which was
very little because he would have likely died from the fall)).
SATISFACTION AND RELEASE

Impact of a settlement on liability of joint tortfeasors varies depending on whether a satisfaction or
release is used. In joint and several liability, each party is liable with the other tortfeasors for the
amount of the judgment as well as individually liable for the full amount.
SATISFACTION Results in the receipt of full compensation for an injury

(regardless of whether its from one, some, or all Ds) and
extinguishes the claim against all potential tortfeasors
PARTIAL SATISFACTION P receives an incomplete recovery from one D. The amount

may be credited pro tanto (dollar for dollar; amount settled is
deducted from amount P can recover from other Ds) to joint
tortfeasors. Payments by insurance companies must also be
credited.
RELEASE A surrender of P’s claim against only one or more tortfeasors,

but not all.
COVENANT NOT TO SUE A settlement made under a covenant not to sue is a contract. P
may still sue the settling party, but then the settling party may
sue for breach of contract. A covenant not to sue usually
includes a reservation of rights against other tortfeasors.
VICARIOUS LIABILITY Some JXs hold that the release of a negligent agent releases the
principal who is liable for the agent’s conduct.
CONTRIBUTION AND INDEMNITY

When a single D pays more than his pro rata (equal share) of damages, he may be able to obtain
payment from other joint tortfeasors.
CONTRIBUTION When the tortfeasors are jointly and severally liable, a sole D
may demand contribution from the others for their fair share of
the damages. Contribution may be sought even where P
intentionally did not seek a judgment against the others.
EXCEPTIONS
1. No intentional torts – An intentional tortfeasors may not
seek contribution from his co-tortfeasors
2. Immunities – A majority of courts hold that if an individual
tortfeasors is immune from suit for any reason, co-
tortfeasors may not seek contribution
3. Worker’s Compensation – A majority of courts hold that
worker’s compensation cuts off liability by employers
INDEMNITY Court completely shifts the financial burden of the tort from
one party to another. Indemnity is allowed out of fairness
because of an extreme difference in culpability.
SETTLEMENTS
Some states and Restatement provide that there may be no
contribution from settling party, provided that the settlement is
made in good faith.
*************************************************************************************
DAMAGES
Damages constitute the monetary award to the injured person by the tortfeasors. There are three types
of awardable damages:
NOMINAL DAMAGES A small sum of money awarded to P to vindicate rights, make

the judgment available as a matter of record to prevent D from
acquiring prescriptive rights, and carry a part of the costs of the
action.
COMPENSATORY DAMAGES Intended to represent the closest possible financial equivalent

of the loss or harm suffered by P, to make P whole again, to
restore P to the position P was in before the tort occurred. Also
serves to deter D.
PUNITIVE DAMAGES An additional sum, over and above the compensation of P,

awarded to punish D and to deter D and others from engaging
in the same conduct.
COLLATERAL SOURCE RULE In most jx, P’s recovery against D is not affected by compensation
received from another source, no matter how much of the harm they
cover. Collateral sources are NOT disclosed to the jury. The theory is D
shouldn’t be excused for another party’s charity or due, nor should D
benefit from P’s prudence in obtaining insurance. This does not apply
to contributions from joint tortfeasors.
DOCTRINE OF AVOIDABLE
CONSEQUENCES Affirmative defense that says injured victims have a duty to act
reasonably to mitigate losses incurred. If P fails to act reasonably to
mitigate injuries (i.e., forgoes medical procedure), D will not be held
liable for resulting incremental losses. Differs from contributory
negligence in that P did not contribute to the original injury.
JUDICIAL CONTROL OF AMOUNTS RECOVERED

The trial judgment or appellate panel may disturb a jury award if the verdict is so excessive or
inadequate that the jury obviously acted contrary to law. This may be tested by the maximum recover
test, or by terms such as “grossly” excessive or inadequate.
REMITTITUR A new trial may be granted where P refuses to accept an

amount lower than what was awarded, at his option. Court
looks to see if award “shocks the conscience”.
DAMAGES FOR PERSONAL INJURIES

There are two ways a person can be injured by a tort: special damages and general damages.
SPECIAL DAMAGES
Include economic losses for which a clear monetary value can be determined. Types of special damages
include:
MEDICAL EXPENSES Compensation for reasonable past medical expenses, such as

bills, therapy, nursing, medication, supplies, tests, etc. These
are determined by submitting bills to the court. Future medical
expenses must be established by expert testimony.
LOST WAGES If P was employed at a fixed wage at the time of injury, wages
are easily calculated. If P was not employed, then calculating
damages is more difficult.
LOSS OR IMPAIRMENT OF
FUTURE EARNING CAPACITY If the injury reasonably appears to be permanent, then P may
recover for future wages which will never be earned. Jury must
be instructed by expert testimony and is allowed to consider
factors such as sex, prior health, nature of employment, manner
of living, personal habits, and individual characteristics.
BUDDING
PROFESSIONAL If P has specific career aspirations he must show
substantial evidence of likely success; otherwise, courts
are unlikely to be persuaded that impairment of earning
capacity should be based on that career. Easier to
predict future earnings for careers reliant on extensive
training than on natural talent.
CHILDREN Calculation for future wages are extremely speculative.

Experts look at IQ, character of child, parents’
education, government statistics, etc.
HOW TO CALCULATE SPECIAL DAMAGES TO BE AWARDED
PRESENT VALUE Most jx require that lump sum awards be reduced to their
present value
FUTURE INFLATION Three different ways courts take into account inflation and its
effect on recovery: (i) inflation discount, (ii) real interest
stability, or (iii) total offset of inflation and interest.
GENERAL DAMAGES
These damages cannot be firmly given a monetary value, and are largely left to the jury to determine,
subject to the court’s control and discretion. Types of general damages include:
PHYSICAL PAIN AND

SUFFERING & MENTAL
ANGUISH P may recover for any suffering both before the trial and that
which is reasonably certain to follow. Must be conscious of the
suffering, otherwise there is no pain and P cannot recover.
Factors in Calculation
1. How serious was the injury?
2. Trauma of the experience
3. How long did/does pain last?
4. Physical evidence of scars/disability
LOSS OF FUNCTION OR
APPEARANCE Recover for the change in appearance or for loss of function
such as taste, smell, sight, incontinence, impotency, change in
personality, insomnia, etc.
EMOTIONAL DISTRESS This is a broad category which includes physical pain, emotional
pain, loss of enjoyment of activities, distress from change in life
expectancy, or concern over illness.
LITIGATION-INDUCED
STRESS Most courts have not allowed recover based on litigation
anxiety because all litigation is stressful.
LOSS OF ENJOYMENT
OF LIFE Some courts allow for recover of “hedonic damages” when a
specific aspect of life is lost.
Courts are split:

1. NO RECOVERY - These damages are a component of
pain and suffering. An unconscious person can’t
recover because they have not suffered.
2. RECOVERY - These damages are a separate type of loss
so P may recover for the loss they suffered while
unconscious.
PUNITIVE DAMAGES
They are intended to provide both punishment for D’s wrongful conduct and to deter such conduct in
the future. Court considers factors such as whether D had malice, did it intentionally, recklessly, or
conduct was outrageous.
When Punitive Damages Are Allowed:

1. Intentional Torts – Generally allowed
2. Negligent Torts – Generally not allowed
3. Strict Liability – Generally not allowed unless actual malice can be shown
4. Criminal Liability – Some courts permit D to show that he has been criminally punished for the
same wrong, or punished in another civil suit, to reduce the amount of punitive damages.
5. Vicarious Liability – Courts are split. Majority allow if employer authorized or ratified the act,
was reckless in employing or retaining the agent, or the agent was employed in a managerial
capacity and was acting in the scope of employment.
FIFTH AMENDMENT States are free to legislate that punitive damages should be paid
partially or wholly to the state and not P. This does not violate
the 5th Amendment takings clause because the punitive
damages are not property of P. However, if all money goes to
the state, the attorney/P loses the incentive to pursue it.
ARBITRARINESS Courts are concerned with the arbitrariness of punitive damages

awards because they are left to the jury with little guidance.
This is especially problematic since the award is quasi-criminal
but does not require the procedural safeguards afforded to
criminal Ds.
CONSTITUTIONAL LIMITS The US Constitution places some limits on punitive damages.

These fall into two categories: substantive (how much is
awarded), and procedural (how the award is determined). Most
often, an excessive award of punitive damages may violate D’s

due process rights on the theory that he deserves fair notice of
the possible consequences and the prohibited conduct.
Excessive punitive damages awards violate fair notice and also
lead to arbitrary deprivation of property in violation of 5th
Amendment.
Three factors to determine excessiveness:

1. Reprehensibility – look at malice, trickery, and whether the
harm was physical rather than economic.
2. Disparity – look at the disparity between the compensatory
damages and punitive damages. The two should bear a
“reasonable relationship”. Not strictly mathematical and
must be considered in light of the other two factors.
3. Sanctions – look at other similar cases to assess
excessiveness. Can look at criminal penalties imposed to
see how seriously the state views the unlawful action.
VICARIOUS LIABILITY
One party is held liable for the acts of another based upon a relationship between them, even if there is
no negligence on the part of the liable party.
RESPONDEAT SUPERIOR An employer will be vicariously liable for tortious acts

committed by her employee if the tortious acts occur
within the scope of the employment relationship.
Scope of Employment A tort is within the scope of employment if the

employee was
1. Acting in furtherance of his employer’s business
2. Acting within the approved or implied consent of
the employer
3. Engaging in activity reasonably independent of the
employer (i.e., employee can engage in personal
business while still acting within the scope of
employment)
4. Employee foreseeably endangers others with risk
arising from one relating to work (foreseeability
here means the employee’s conduct is not so
unusual or startling that it would seem unfair to
include the loss resulting from it among other costs
of the employer’s business).
Frolic & Detour An employee on a delivery or on a business trip for his

employer may commit a tort while deviating from the
employer’s business to run a personal errand. If the
deviation was minor in time and geographic area, the
employee will still be considered to be acting within the
scope of employment rather than on a “frolic” of his

own (for which the employer would not be liable).
Coming & Going Most courts hold an employee traveling to and from
work is not acting within the scope of employment.
Intentional Torts Usually held that intentional tortious acts by employees

is not within the scope of employment. In some cases,
courts find intentional torts within the scope of
employment, such as when:
1. Force is authorized in the employment (i.e.
bouncer)
2. Friction is generated by the employment (i.e. bill
collector)
3. The employee is furthering the business of the
employer, (i.e., removing customers from the
premises because they are rowdy).
INDEPENDENT CONTRACTOR One who is engaged to perform a certain service

according to his own methods, free from control and
supervision of the employer. Generally, the person who
hires the independent contractor is not liable for his
acts.
Level of Control The test for asserting whether D is an employee or an IC

is whether the employer has immediate control over
the work.
Exceptions Some duties are so important that the law will not allow
them to be delegated to another party. In these cases,
the employer will be liable for the IC’s acts:
1. Work involving abnormally dangerous activity

2. Activity posing a peculiar risk of harm
3. Work on instrumentalities used in highly dangerous
activities
4. Activities involving trespass, nuisance, or withdrawal
of support
5. Possessors and lessors of land
6. Activity made non-delegable by statute
7. Activities under public franchise or in a public place
8. Work accepted as the hirer’s performance of the
work
*Bolded exceptions were discussed in class
Collateral Negligence Exceptions don’t apply where IC’s negligence is

“collateral” to the risk, meaning that it is either not
recognizable in advance or not particularly likely to

occur (i.e., paint can falling from window while paining
inside house).
Negligence in Selection
Of Contractor If a company is negligent in selecting the contractor or
in giving improper directions or equipment or in failing
to stop any unnecessarily dangerous practices that
come to its attention, the company will be held liable
for its own negligence, which has combined with that of
the contractor.
JOINT ENTERPRISE A joint enterprise, similar to a partnership, exists where

the parties:
1. Have an agreement (expressed or implied);
2. Have a common purpose (business purpose) to be
carried out;
3. A common pecuniary interest in that purpose; and
4. An equal right of control in the enterprise.
BAILMENTS A bailor is generally not vicariously liable for negligence

by a bailee in the use of a chattel. However, there are
some important exceptions to that rule.
Automobile Consent
Statutes General Rule – An automobile owner is not vicariously
liable for the tortious conduct of another driving his
automobile. Many states have enacted “auto consent
statutes” which provide that the owner of an
automobile is vicariously liable for any negligence
committed by one using the car with the owner’s
permission.
Graves Amendment Federal Statute that prohibits rental car companies

from being liable.
Family Purpose Doctrine Owner is liable for tortious conduct of immediate family
or household members who are driving with owner’s
express or implied permission.
IMPUTED CONTRIBUTORY
NEGLIGENCE Majority – contributory negligence may be imputed
only if the relationship is one in which P is vicariously
liable if he were a D.
Exceptions There are some cases in which courts will not use
imputed contributory negligence:
1. Driver & Passenger

2. Husband & Wife
3. Parent & Child
STRICT LIABILITY
An imposition of strict liability (or “absolute liability”) on a defendant means that the defendant must
pay damages despite the absence of either intent or negligence in the resulting harm
ANIMALS Strict liability cases originally arose in cases dealing with

those who owned or kept animals in certain situations.
Trespassing Animals An early common-law rule was that an owner of

animals of the kind likely to roam and do damage is
strictly liable for their trespasses. This was originally
limited to barnyard animals such as cattle, horses,
sheep, hogs, goats, fowl, chicken, and pigeons.
Exceptions Household Pets – Animals such as dogs or cats were

considered difficult to confine or restrain, and
community custom allowed them to roam at large
without liability.
Straying Animals – Another exception was the case of

animals straying from a highway on which they were
lawfully driven, because of the necessity of getting the
animals to market. This did not apply to other lands
other than the highway.
Wild Animals Strict Liability – The owner is strictly liable for injuries
caused by animals (lion, tiger, bear) even those kept as
pets.
Domestic Animals Knowledge Required – The owner of a domestic animal

(including farm animals) is not strictly liable for injuries
it causes UNLESS owner has knows or should have
known that the animal has a dangerous propensity
abnormal to its class.
Community
Custom Community custom influences which animals are
classified as domestic or non-domestic animals. This
rule is the majority position in America.
ABNORMALLY DANGEROUS
ACTIVITIES Some activities create such a grave risk when control of
them is lost that the party in control will be held strictly
liable for resulting harm. Whether an activity is
abnormally dangerous is a question of law.
What is Abnormally Dangerous?
3D RESTATEMENT Reduces the number of factors for determining whether

an activity is abnormally dangerous to two:
1. The activity creates a foreseeable and highly
significant risk of physical harm even when
reasonable care is exercised by all actors; and
2. The activity is not a matter of common usage in the
community.
Common Usage Items which are so commonly used by the public

(automobiles, electricity, natural gas) are not subject to
strict liability. The benefit to many outweighs the risk
to a few.
Land Activities Majority hold that a party must bear loss for a harm
coming from something that he brought onto the land
which if it escapes will likely cause injury.
- Some courts narrow this and say that the mere
bringing of the object onto the land is not enough;
the use of the object must also be non-natural.
o Non-natural – look to the character of the
activity in question, the place and manner
in which it is being used, and its relation to
the circumstances; whether commonly or
uncommonly used.
LIMITATIONS ON LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES
SCOPE OF LIABILITY The resulting damage must be the kind of risk

reasonably expected to result from the abnormally
dangerous activity.
ACTS OF GOD / ACTS OF

THIRD PARTIES If the harm occurs due to an unforeseeable intervening
cause, D will usually be relieved from liability, regardless
of whether the harm was a foreseeable result of the
dangerous activity.
NO DEFENSE Courts will NOT apply contributory negligence as a
defense to strict liability because they are two different
concepts. Negligence is based on fault, while strict
liability is not.
ASSUMPTION OF THE RISK This MAY be a defense depending on whether the jx

uses comparative fault and how it treats assumption of
the risk.
PRODUCTS LIABILITY
A seller of a product is liable if, because of some defect, the item causes injury to its user.
ELEMENTS OF STRICT LIABILITY:

1. D was the manufacturer, wholesaler, or retailer
2. There was a product defect
3. The defect existed at the time it left D’s control and was not altered;
4. The defect was both the cause-in-fact and proximate cause of P’s injury; and
5. P’s person or property was injured.
2nd Restatement 3rd Restatement

1. Negligence All three possible causes of action under
2. Breach of Warranty 2nd Restatement are combined into one
A. Expressed strict liability analysis under the 3 rd
B. Implied Restatement. If the standards of the
i. Warranty of Merchantability defect are met, and the defect caused the
ii. Fitness for a Particular injury, there is liability.
Purpose
3. Strict Liability
A. Manufacturing Defect
B. Design Defect
C. Warning Defect
ELEMENTS OF STRICT LIABILITY:
1. D was the manufacturer, wholesaler, or retailer
2. There was a product defect

a. MFG defect, design defect, warning defect
3. The defect existed at the time it left D’s control and was not altered; and
a. If P can prove that the product at least moved in the ordinary channels of
distribution, that will give rise to a presumption that the defect existed
when it left D’s hands.
4. The defect was both the cause-in-fact and proximate cause of P’s injury.
a. But for cause of injury and P was making foreseeable use of the product
5. P’s person or property was injured.

2ND RESTATEMENT APPROACH
NEGLIGENCE Negligence principles can be applied to products liability

cases. There is a duty to foreseeable users if the nature
of a thing is such that it is reasonably certain to cause
danger to life or limb if negligently made.
DUTY Must show D had a duty to P. Current standard

includes all of Ps within the foreseeable zone of danger.
Restatement calls this group of persons those Ps
located “in the stream of commerce.” All Ds in the
chain of commerce (mfg, wholesaler, and retailer)
should exercise reasonable care. But a retailer usually
has no duty to inspect the goods they sell and a mfg’s
negligence is not usually imputed to a retailer.
BREACH Must show that manufacturer failed to conform to the

reasonable standard of care, by showing product was
negligently made or designed, or that the manufacturer
failed to warn about risks of which a reasonable
manufacturer would have warned, or that manufacturer
failed to conduct a reasonable inspection before selling
the product. May apply Res Ipsa Loquitur.
Res Ipsa Loquitor Although RIL is unavailable in strict liability, the same
principles may apply. There may be a permissible
inference that the product was defective and that it led
to the injury.
CAUSE Must show defect was actual and proximate cause. It is

rare for a supervening event to break the causal chain.
DAMAGES Included are personal injuries and consumer’s property

damage.
DEFENSES Contributory negligence

Comparative Fault
Assumption of the Risk
BREACH OF WARRANTY Strict liability may arise under a breach of warranty in

products liability cases, as an exception to contract
principles, in that there is no privity between the
manufacturer and the consumer.
EXPRESSED WARRANTIES A manufacturer is liable when he makes an express

representation about the product, the product is absent
those qualities, and the absence is not readily
noticeable via inspection. It is no defense that party
used the best product available, must live up to the
express warranty.
IMPLIED WARRANTIES A warranty may also be implied from the seller’s

offering.
Warranty of
Merchantability Warranty that goods are fit for the ordinary purpose for
which such goods are used. This requires that the seller
be a merchant who deals in goods of that kind.
Fitness for a
Particular Purpose Warranty arises when the seller 1) knows the buyer
wants the goods for a particular purpose; and 2) the
buyer relies on the seller’s judgment to recommend a
suitable product.
STRICT LIABILITY One who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to
his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to
his property, if
i. The seller is engaged in selling such a product, and

ii. It is expected to and does reach the user or
consumer without substantial change in the
condition in which it was sold.
MANUFACTURING DEFECT This defect occurs because the individual product was
not made or assembled according to the proper
specifications. Only one or a few units are affected.
DESIGN DEFECT This is where the individual product is made according

to the design, but the design itself is fault. All units are
affected.
Risk-Utility
Analysis Is there a public benefit to the product as is? If so, the
court may weigh the cost of implementing a safer
reasonable alternative design against the risk and
extent of potential injury to consumers. (Luxury items
may have more burden to make safe)
Consumer
Expectation Analysis Under this test, a product is defective if it fails to
perform as safely as a consumer would expect. The test
also considers the safety of the product when used
either as intended or in a way that is “reasonably
foreseeable.”
WARNING DEFECT If risk is known or knowable and mfg fails to adequately

warn, he is strictly liable. Failure to warn has to render
unsafe to user. Warnings will never save the mfg where
the product has a mfg or design defect. The theory
instead applies when the product is properly designed
and properly manufactured. It doesn’t matter if it’s
reasonable to warn.
Obvious Dangers Most courts hold that a mfg has no duty to warn of
dangers that are commonly known or obvious.
Unknown Dangers Most courts use a fault based standard for failure to
warn. If D can show that he neither knew or should
have known of the danger, then the strict liability claim
will be defeated. How can he warn of something he
doesn’t know about?
Allergic Reactions Most jx impose a duty to warn if a substantial number

of people will have an allergic reaction to the product.
Adequacy If a warning is provided, the info must reasonably

convey a fair indication of the nature, gravity, and
likelihood of the risks.
Learned Intermediary
Rule For pharmaceutical cases, most courts hold that
warning instructions should be provided to the DR who
is a “learned intermediary” and in the best position to
decide treatment for and give warnings to individual
patients. The DR would then become liable in the event
of any injury resulting from a failure to warn. Cause of

action would be “failure to provide informed consent.”
Difference in Negligence and Strict Liability Duty to Warn:
Negligence P has to prove D did not warn for risks for reasons that failed the
standard of care; what a reasonably prudent manufacturer would have
known and warned about.
Strict Liability Requires warning when particular risk was known or knowable. No
reasonableness.
Unlike Negligence, all Ds in the chain of distribution are liable. Vertical

privity is imposed on the mfg, wholesaler, and retailer. Strict liability
applies even if D acted reasonably in the circumstances.
3rd RESTATEMENT APPROACH

Does not use doctrinal theories because in design and warning defect cases the analysis for negligence
and strict liability are the same. This approach says that if the standards of the defect is met, and the
defect caused the injury, there is liability.
A product is defective when, at the time of sale or distribution, it contains a mfg defect, is
defective in design, or is defective because of inadequate instructions or warnings. A product:
1. Contains a mfg defect when the product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product;
2. Is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the omission
of the alternative design renders the product not reasonably safe;
3. Is defective because of inadequate instructions or warnings when the foreseeable risks of

harm posed by the product could have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or other distributor, or a predecessor in
the commercial chain of distribution, and the omission of the instruction or warnings
renders the product not reasonably safe.
3rd Restatement Risk/Utility Factors For Defective Design

1. Probability of the foreseeable risks of harm
2. Instructions and warnings accompanying the product
3. The nature and strength of consumer expectations from marketing, etc.
4. Advantages and disadvantages of the product as designed and as it alternatively could
have been designed.
DEFENDANTS OTHER THAN MANUFACTURER LIABLE FOR STRICT LIABILITY
RETAILERS Any retailer who sells the good will be held strict liable
(as well as having warranty liability).
USED GOODS A majority of courts hold that there is no liability for a

seller of used goods. Restatement 3 rd says that sellers of
used products can be subject to strict liability when the
products are sold in “like new” condition and the
consumer reasonably expects them to be in a safe
condition.
OCCASIONAL SELLERS Parties who only occasionally sell and have no

commercial knowledge or skill will not be subject to
strict liability
SERVICES Generally a D who provides a service will not be held

liable for a defective product used in performing such
service. In mixed contract situations where both
services and goods are provided, courts usually look at
which is predominant. Restatement holds that if the
product is not transferred to the customer, the incident
is only a service.
MISCELLANEOUS APPLICABILITY
FOOD Some courts apply a “foreign-natural” test. Strict

liability is applied only if the injury is caused by an item
foreign to the food (glass, wire, etc.). Otherwise,
negligence must be shown.
MEDICINE Courts have declined to apply strict liability to

prescription medication.
DEFENSES TO STRICT PRODUCTS LIABILITY [SCAMP]
STATE OF THE ART A D may raise a defense that the product met the level
of technology and economic feasibility at the time
which did not permit safer design. Courts allow this
defense, but do not hold that it is dispositive on the
defect issue; it is a factor in risk utility analysis.
COMPARATIVE FAULT At least some courts have allowed comparative fault

statutes to apply to products liability, thus
proportionally reducing recovery. P’s failure to discover
a latent or hidden defect is not a defense to a strict

liability action.
ASSUMPTION OF THE RISK This might apply if P discovered the defect, appreciated
the significance, and still proceeded in the face of the
known danger. Some questions indicate the buyer
knew that the price was reduced because of the defect.
P’s going forward to encounter the danger must be
both voluntary and reasonable.
MISUSE P might put the product to a different or more intense

use than what was reasonably intended by the parties.
The misuse must also not have been reasonably
foreseeable by D. Foreseeability is not limited to the
intended use of the product (i.e., it is reasonably
foreseeable that someone may stand on a chair to
change a lightbulb)
PREEMPTION There is an expressed or implied federal law that

precludes state law claims for products liability. D
claims that he is unable to comply with state law
because if he does so he will violate federal law.
DEFAMATION Refer to Defamation Framework
CONSTITUTIONAL LIMITATIONS If the defamation involves a matter of public concern, a

public figure, or public official, P must prove two
additional elements (1) falsity; and (2) fault (SEE NEXT
PAGE).
Public Concern Have to look at content, form, and context. Very fact
based. Does the matter require special protection to
ensure that “debate on public issues will be uninhibited,
robust, and wide-open.”
Public Official Person who has or appears to the public to have

substantial responsibility for or control over the conduct
of public affairs. Position in govt has such apparent
importance that public has an interest in the quality of
performance of that person. Goes beyond interest in a
public employee.
Public Figure Person has pervasive power and influence or fame and
notoriety over public affairs. The party is a public figure
only because he voluntarily injected himself into a
public controversy. Some courts require the

controversy to be already in existence.
Controversy Resolution can affect public or appreciable segment of

the public in some substantial figures. In some states,
courts have held there is a difference between
voluntary and involuntary public figures.
DEFENSES TO DEFAMATION
SUBSTANTIAL TRUTH D may prove the statement as true. The statement

need only be substantial true in order to bar recovery; it
doesn’t necessarily have to be literally true.
ABSOLUTE PRIVILEGE D may assert an absolute privilege for remarks made:

1. During judicial proceedings;
a. Judges, lawyers, witnesses are privileged in
the course of proceedings, as long as the
statement is relevant to the proceeding.
2. By legislators in debate;
3. By federal executive officials acting within the scope
of their duties; and
4. In between spouses.
QUALIFIED OR CONDITIONAL
PRIVILEGE D may assert a qualified/conditional privilege for:
1. Reports of official proceedings;
2. Statements in the interest of the publisher
3. Statements in the interest of the recipient; and
4. Statements in the common interest of the publisher
and recipient.
Exception A qualified privilege is waived if:

1. D acts with actual malice
2. D acts with ill will or spite
Factors to consider whether to waive:

1. D’s knows the statement is false
2. The excessive nature of the language used
3. Whether the disclosure was unsolicited
4. Whether the communication was made in a proper
manner and only to proper parties.
FAIR COMMENT A statement is privileged if it:

1. Concerns a matter of public interest
2. Is based upon true or privileged facts
3. Represents the actual opinion of the speaker

(statement has no provably false factual
connotation)
4. Is not made solely for the purpose of causing harm.

Best Torts Outline

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Best Torts Outline

Uploaded by

Copyright:

Available Formats

TORTS – OUTLINE Page 1 of 57

WHO IS LIABLE FOR INTENTIONAL TORT?

An actor is subject to liability to another for battery if:

b. Type of Contact - Unpermitted and intentional contacts with anything so connected

c. Transferred intent applies to battery

d. No Requirement of Damages – Battery is complete upon contact. It is not necessary

WHAT CONSTITUTES OFFENSIVE CONTACT (R2T-19)

An actor is subject to liability to another for assault if:

a. Well-Founded Requirement (Majority) – Apprehension of harmful or offensive

b. Apparent Ability to Act is Sufficient – The apprehension of contact must be

d. Knowledge of Act Required – For there to be an apprehension, P must be aware of

e. Effect of Words – Words alone, however violent, generally do not constitute an

g. Immediacy Required – Threats of future contact aren’t sufficient. There is no assault

h. Transferred intent applies to assault

An actor is subject to liability to another for false imprisonment if

a. Awareness – P must be aware of confinement at the time of the confinement.

c. Reasonable Means of Escape – If escape route requires the victim to suffer

d. Transferred intent applies to false imprisonment.

e. Damages – No physical harm required to get damages.

CONFINEMENT / ESCAPE (R2T-36)

SUFFICIENT METHODS OF CONFINEMENT

3. DIRECT THREATS OF FORCE

4. INDIRECT THREATS OF FORCE

5. FAILURE TO PROVIDE MEANS OF ESCAPE / OMISSION

6. INVALID USE OF LEGAL AUTHORITY

a) If D has legitimate legal authority to confine then NO false imprisonment

c) Citizen can be liable for false imprisonment by deliberately procuring a false

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. D must have the intent to cause several emotional distress

2. Conduct must be extreme and outrageous

i. Repetitive abuse can meet standard

3. Must have a causal connection between conduct and harm

4. P must suffer severe emotional harm

i. Transferred Intent does not apply to emotional distress (R2T)

BYSTANDER’s PRESENCE (R2T-46(2))

a. Mistake is Not a Defense – Mistake as to the lawfulness of the entry is not a

f. Transferred Intent applies to trespass to land.

a. Intermeddling Defined – contact with chattel (not harm)

c. Trespass to Chattels and Conversion Distinguished – Conversion grants relief for

d. Transferred Intent applies to trespass to chattels.

e. Damages Required – actual damage must be sustained for there to be a trespass to

c. Good Faith Purchasers

i. PROTECTED – If purchaser receives title and possession he is not a

d. What Can be Converted? Courts tend to limit conversion to tangible property.

EXCEPTION – intangibles with scientific, literary, or artistic value; things

e. Ways to Convert Chattel – conversion is greater than trespass to chattel

f. Factors to Determine Seriousness of Interference – Conversion requires that the

1. Extent and duration of dominion or control

Expressed Consent Consent is a valid defense when P has expressly submitted to

Consent by Fraud Consent is NOT a defense where D knew or induced a mistaken

Consent IS a defense when it is obtained by fraud or a misrepresentation

CONSENT TO ILLEGAL ACTIVITY

Majority View D cannot consent to an illegal action, and therefore consent is

Minority View Consent is effective even when the act is illegal

All jurisdictions Consent is ineffective for a protected class of persons (i.e.,

Emergency Doctrine Doctors may perform surgery absent consent if:

Extension Doctrine Doctor may perform surgery for an unanticipated medical

Reasonable Belief Justified self-defense requires that D reasonably believes (even

Imminent Harm Justified self-defense requires that the threat be imminent; a

Provocation Insults and verbal threats do not justify self-defense unless

Mistake Reasonable mistake is a protection from liability

RETREAT - THREAT OF DEADLY FORCE

Majority No duty to retreat ever