Torts

T “FUCK YO COUCH. ”

Last updated: 0/18/0578 12:18 AM

Chia-Chi Li

1. Introduction.......................................................................................................3
2. Strict Liability v. Negligence.................................................................................3
3. Death and Damages............................................................................................5
4. Vicarious Liability and the Parties..........................................................................6
4.1. Liability for employees (Respondeat Superior)........................................6
4.2. Liability for Independent Contractors.....................................................8
5. Negligence.........................................................................................................9
5.1. Historical Developments......................................................................9
5.2. Unified Standard of Negligence...........................................................10
5.3. Economic Analysis of negligence.........................................................11
5.4. The Reasonable Person......................................................................12
5.5. The Role of Judge and Jury.................................................................13
5.6. Customs..........................................................................................14
5.7. Statutes...........................................................................................15
5.8. Proof...............................................................................................16
5.9. Of Notice (3rd party actions)................................................................16
5.10. Res Ipsa Loquitur...........................................................................17
5.11. Medical Malpractice........................................................................19
6. Duty for physical harms.....................................................................................21
6.1. Contractual Obligations......................................................................22
6.2. Statutory Obligations.........................................................................23
6.3. Obligations to protect a third party......................................................24
6.3.1. In general from physical harm.........................................................24
6.3.2. Duty not to misrepresent................................................................24
6.3.3. Negligent Entrustment....................................................................25
6.4. Landowners and Occupiers.................................................................27
6.4.1. General Rules................................................................................27
6.4.2. Landowner’s duty to protect from criminal activity.............................30
6.4.3. Landowner Right to resist criminal activity........................................31
6.5. Intra Familial Duties..........................................................................31
6.6. Governmental Entities.......................................................................33
7. Duty for Non-physical harm................................................................................36
7.1. Direct Emotional Harm.......................................................................37
7.2. Indirect Emotional Harm....................................................................38
7.3. Pure Economic Harms........................................................................39
7.4. Wrongful death/life/birth....................................................................41
8. Causation.........................................................................................................41
8.1. Loss of Chance..................................................................................41
8.2. Cause in fact....................................................................................42
8.2.1. In General....................................................................................42
8.2.2. Joint and Several Liability (damages)...............................................42
8.3. Proximate Cause...............................................................................44
8.3.1. Extent of Harm..............................................................................44
8.3.2. Type of Harm................................................................................44
8.3.3. Unexpected Manner of Harm...........................................................45
8.3.4. Unexpected Victim.........................................................................45

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9. Defenses..........................................................................................................45
9.1. Contributory and comparative negligence.............................................45
9.2. Avoidable Consequences....................................................................46
9.3. Assumption of Risk............................................................................46

Question – why isn’t res ipsa general party expanded beyond medical stds.

RULE:
₪
Facts:
Holding:

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1. Introduction

Definition: An act by one party which causes injury to another that requires payment, and that does not
follow from contractual obligations or criminal acts – no contract or intent to injure.

Historical: Originally from the same body as criminal law. However, with the industrial revolution this
became untenable. Criminal = {mens rea, nothing to victim}. Tort = {negligence/strict liability,
compensation to victim}. Needed tort law to address exploding boilers.

Economical:
1) No liability
a) Would encourage reckless behavior, damage to others
b) People would spend more money on protection, inefficient (hummers +)
c) People would get first party insurance
d) Would encourage vigilantism , revenge, crimes

2) Social Liability insurance

a) No incentive to avoid accidents
b) encourages frivolous claims of injury
c) Encourages fraud – I need a new car, hurt toe -> can’t work
d) Cost is spread to society -> make encourages individuals to report claims to get their $ worth.

3) Judicial Compensation Schemes

a) Liability rules supplemented by social and private insurance
b) Encourages safe behavior and insurance

2. Strict Liability v. Negligence

1) Strict Liability
a) Products Liability – because buyers lack knowledge, access, and initiative to inspect products.
Manufacturers are better situated and can spread the cost to the buyers. Also historical arguments
claim that such a change would confuse people, and institutional arguments claims that such a
change should only come through the legislature.
2) Negligence
a) Rational – what should be done based off cost/benefit analysis
b) Reasonable – what is regarded by society as a whole as reasonable actions

TEST: What is the standard of care?

i) Is this jurisdiction STRICT LIABILITY OR NEGLIGENCE?
(1) If strict liability then guilty as long as causation
(2) If negligence, then define negligence (reasonable/rational)

Policy:
i) Deterrence – companies are in a better position than buyers to know/find harm
ii) Moral/Holmes– without intent/blame, strict liability is like paying for lightening strikes
iii) Institutional – should be under the auspices of the legislature
iv) Historical – hard to change without causing mass confusion

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 v) Economic/Posner – can’t morally blame someone when avoidance of action causes more
harm than inaction.

₪ Hammontree v. Jenner (1971), p3

Facts: P and husband were working in shop when D drove through their window causing personal injury
and property damage. D claims he lost consciousness due to his known condition of epilepsy. D followed
his doctors orders and was license by the DMV to drive. He had no inkling that he would lose control.

After court refused to issue to jury instruction on strict liability and gave instructions on negligence
liability, P forewent closing argument and now appeals that the incorrect standard of liability was used.

Court’s Policy justification –

Economic: P argued that strict liability occurs for products because the manufacturers are in a better
position than consumers to notice defects, and hence should apply to epileptics as well because they are
aware of their condition. Only they could have done something to prevent the injury.
Court responds: Individuals are not in a position to pass on the cost like manufacturers.

Moral: It is not fair to let the damages where they lie.

Court responds: not fair to impose liability on a person that did everything within their power and
was not at fault.

Institutional: Legislature the best place to make such changes.

Historical: will cause too much confusion

Holding:
 No liability for damage caused by accident due to a medical condition for which all possible
precautions were taken and an accident not foreseen as likely.

Holmes against strict liability

 When an accident occurs, loss must lie where it falls (e.g. meteor), no different if it is human
accident.
 Otherwise, a person existing can be liable for loss through an unrelated long chain of events.
 Hence, there must be an act for liability (not just existing), and acts are required because of
CHOICE, a choice of choosing an alternative that caused no damage.
 To make me pay for another when I did it accidentally, is like me having to pay for someone
else’s insurance for lighting.

Posner against strict liability

 We should not have strict liability when there is a known danger and the cost to prevent it exceeds
the cost and probability of damage.
 E.g. cab driver that once in a million crashes due to seizures – it would not be economically
feasible to not let him drive because the value he brings as a driver exceeds the loss from seizure.
You cannot morally condemn him for driving.

Review Questions
1) Difference between STRICT LIABILITY and NEGLIGENCE
a) In strict liability you are liable for damages as long as you were the one that caused them,
regardless of intent, lawfulness, etc. To claim liability under NEGLIGENCE a certain degree of

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 fault and blameworthiness is required. This can be judged by a reasonable or rational standard.
As Holmes claims, there must at least be an ACT. And according to Posner, we should not hold
people strictly liable when it is economically infeasible.
2) Why did the court of Appeals in Hammontree reject absolute liability?
a) The main argument for absolute liability had to do with products liability. This was rejected on
the grounds that the manufacturer was in a better position than the buyer to inspect and find
dangerous aspects of the product. Namely, that the buy lacked knowledge, expertise, and
initiative to look for dangers. Moreover, the manufacturer was in a better position to spread out
the loss by passing on costs to the buyer. Also it was noted that a shift to absolute liability in this
case would introduce mass confusion – historical. It was also stated that such a new liability
should be conducted by the legislature not the courts – institutional.
3) What are the competing notions of reasonableness presented in Hammontree?
a) Reasonableness is seen as either rational or reasonable. In the rational the standard is set by what
is best by terms of an internal calculus of sorts. Reasonable is a measure of society norms. Some
things that are rational are not reasonable.

3. Death and Damages

Types of Damages
 Compensatory (indifference principle)
o Pecuniary Damages
 Personal injury (medical bills, loss wages)
 Property damage (repair, replacement, renting sub)
o Non-pecuniary Damages
 Personal injury (pain and suffering, shame, psychological loss)
 Loss of consortium (companionship)
 Punitive (aligned with degree of malice)

Recovery at Death
Common law No recovery. Suit dies with injured party.
Gave you incentive to kill injured victim.

Overturned with Lord Campbell Acts

Survival Estate allowed to sue on behalf of injured as if still alive.
 Pecuniary - loss wages, medical & funeral costs
 Non pecuniary - knowledge of impending death
Wrongful Death Heirs can sue for their damages cause by death.
 Pecuniary – lost support
 Non Pecuniary - Loss of companionship, affection

Key Concepts:
1) What is the difference between compensatory and punitive damages?
The aims and conditions of application differ. Compensatory damages are awarded when one party has
been wrongfully injured by another with the goal of compensating the victim for that injury. Punitive
damages are awarded when an offense is so wanton and intentional that it deserves extra punishment as a
deterrence factor.

2) What is the difference between pecuniary and non pecuniary damages?

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Pecuniary damages are those that are related to a loss of money or material benefits – wages, support,
services, etc. Non pecuniary damages are those damages not associated with material benefits, such as loss
of consortium, the loss of being able to share a day with your wife.

3) What is the difference between a survival and wrongful death suit?

Survival allows for suits that the dead party could have filed is still alive while wrongful death suits are
those that the surviving family members (heirs) can bring for their loss.

4. Vicarious Liability and the Parties

1) When is an employer liable for an employee? When action which cased the harm was
a) Type of conduct - Of the nature for which employee was hired
i) Command rule – common law rule which said employee was only liable for direct commands
ii) Frolic and detour
(1) Reasonable Foreseeability – if it was reasonably foreseeable by the employer then they
are liable, e.g. drunk driving. Focuses on employer.
(2) Subjective intent – if employee was motivated to serve employer. Focuses on employee.
b) Time and space - Within the ordinary time/space proximity
c) Motivation for action – motivated by employer’s benefit

TEST:
a) Birkner 3 pronged test
b) Employer can indemnify

POLICY:
a) why are employers liable?
b) What approach is better: reasonable foreseeability or subjective intent?
[moral/compensation/deterrence]

2) Why is an employer liable for an independent contractor?

a) Non-delegable duty
i) Highly risky activity – stringing up high voltage wires
ii) Risk to the public at large – duty to sweep entrance to mall
iii) Legislatively imposed duty – court defers to legislature
b) Ostensible Agency
i) Tort Approach
(1) Negligence – physical harm caused by negligence
(2) Reasonable belief – no reliance necessary
ii) Agency Approach
(1) Conduct – must have acted in some way
(2) Belief – injured party must have believed that the putative agent was an employee or
agent
(3) Justified Reliance – must have reasonably relied upon the acts and message

TEST:
a) Is there a non delegable duty? Inherently risky, risk to public at large, legislative
b) Does it satisfy the tort approach of ostensible agency? Reasonable belief that actor was agent
or employee and that reliance lead to harm
c) Does it satisfy the agency requirement? Some act by the employer, that lead to reliance on
the belief that actor was agent or employee and that reliance led to harm.

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 4.1. Liability for employees (Respondeat Superior)

(rehs-pond-dee-at superior) n. Latin for "let the master answer," a key doctrine in the law of agency, which
provides that a principal (employer) is responsible for the actions of his/her/its agent (employee) in the
"course of employment." Thus, an agent who signs an agreement to purchase goods for his employer in the
name of the employer can create a binding contract between the seller and the employer. Another example:
if a delivery truck driver negligently hits a child in the street, the company for which the driver works will be
liable for the injuries.

The employer is responsible for the acts of the e’ee if done within the scope of employment.

Policy Justification for respondeat superior (employer)

Employer has control of employee’s actions and hence is liable
 Most likely victims will recover
 Incentive to avoid injury – training, safety
 Incentive to shrewdly choose employees
 Incentive to discipline employees that have committed negligence
 Incentive to alternatives to employees (machines, automation)

Respondeat superior

Birkner test - Whether an act falls within the scope of employment.

1. Type of conduct - Of the general kind the employee is hired to perform (for employee v. personal)
a. Common law – Command rule - if I tell you not to drink, I am not liable if you do.
b. Modern Approach - law of frolic and detour
 Subjective – employee’s motivation
 Objective – employer’s foreseeable expectations

2. Time and Space - Fall within the ordinary hours and spatial boundaries of employment
3. Motivation for action - Motivated in part by the purpose of serving the employer’s interest.

AND
“employer failed to property screen employees” – Foster – where employee had violent record in job dealing
with large rowdy crowds at a bar.

NOT
“not a risk predictably created by or fairly attributed to the nature of the technician’s employment.” - Henry
Mayo Hospital – staffer that raped patient.

“not an act that is high unusual, outrageous” – Clark v. Pangan – when fight over paperwork norms.

BUT
Includes stuff that you can reasonably foresee, “don’t drink and drive!” -> trucking company is still liable.

₪ Christensen v. Swenson (1994), p18

Facts: D was a Burns employee at Geneva Steel Plant hired to guard gate 4. Shifts were 8 hours and
included 15 minute breaks for food and restrooms. D went to the only restaurant near the plant to get soup
and struck a motorcyclist on the return. P sues D and Burns for damages.

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Burns moves for summary judgment because Swenson was not acting in the scope of employment.
Holding: Appeal from Summary judgment granted.
1. “To see and be seen.” Was there waiver with the menu and no discipline? Foreseeable. What this
within his scope of employment?
2. spatial boundaries are questionable.
3. rush in time and requirement for food could be for employer’s interest.

4.2. Liability for Independent Contractors

Policy analysis of why we should treat independent contractors differently than regular employees
1) Employer doesn’t have expertise in the area and is unaware of risk
2) Independent contract does not report and is not an agent of the employee

Exceptions to independent contractors – when liability is non delegable

1. when they involves a risk to the public
2. highly risky activity (inherently risk and highly unusual)
3. legislatively or administratively assigned duties

Policy Analysis of exceptions:

1. potential high number of complaints, diffused victim class unlikely to know how to protect
themselves
2. want to protect the small guy, incentive for protection and hiring people that
3. defer to these agencies

What is the difference between primary liability and vicarious liability?

Primary liability is liability incurred during your own actions which cause harm to another. Vicarious
liability is liable for the actions of your employee or agent.

When is an employer vicariously liable for the acts of an employee?

An employer is liable for an employee when the action that caused the harm was within the scope of
employment and was reasonable foreseeable.

When is an employer vicariously liable for the acts of an independent contractor?

When the actions are non-delegable or ostensible agency.

Why are the rules different for employees and independent contractors?
Because the employer doesn’t have the control over the IC and probably doesn’t understand the area well
enough to mitigate risks.

Ostensible Agency
An employee can be liable for an independent contractor’s acts through the equitable theory of estoppel. If
the acts of the employer are as such as to create the reasonable belief of employment, he cannot later deny
it.

Ostensible Agency
Restatement of Agency – relevance of principal’s conduct in establishing belief, need for justifiable reliance

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Test - Whether an employee is liable for independent contractor’s acts through ostensible agency .
1. Conduct – must have acted in some way
2. Belief – injured party must have believed that the putative agent was an employee or agent
3. Justified Reliance – must have reasonably relied upon the acts and message

Restatement of Torts – need for negligence by independent contractor and physical harm to victim
Test - Whether an employee is liable for independent contractor’s acts through ostensible agency .
1. Negligence – physical harm caused by negligence
2. Reasonable belief – no reliance necessary

Agency focuses on conduct -> belief (proof or reliance) while tort focuses on negligence -> harm.

Policy justification for Ostensible Agency

 based off estoppel

₪ Baptist Memorial Hospital System v. Sampson (1998), p24

Facts: D was bitten by a spider and treated incorrectly by an independent agent of P. D claims ostensible
agency and moves for summary judgment.

There were signs saying that doctors were contractors and D signed a release form, but claimed she never
saw the signs or signed the papers. Court rule that even if that were true, there was no ACT by P for D to
infer and rely upon.

Delegable because
a) not an inherently risky action due to percentage of successful hospital visits
b) not a public area – limited to those that can pay

Key Concepts:
1) What is ostensible agency? Ostensible agency is where an employer can be liable for the actions of
an independent contract due to the fact that a third party reasonably believes that the contract is an
agent or employee. It operates like a form of estoppel where the client reasonably relied.
2) How does the approach differ between the tort and agency approach? In the tort approach all you
need to establish ostensible agency is a reasonable belief and reliance that leads to harm. This
approach is more focused on the client and their frame of mind. In the agency approach you need to
establish a specific act or conduct that lead to the reasonably belief and reliance. This approach
focuses more on the employer and their acts.
3) How does ostensible agency differ from strict liability? One you establish that there is ostensible
agency all you do is establish a duty. The underlying breach or negligence must still be established to
collect damages, while in strict liability you are responsible no matter what.

5. Negligence

5.1. Historical Developments

Historically: the area of torts originated with criminal law. However with industrialization criminal law
because focusing more on actus reus and mens rea while tort law developed to address unintentional harms.
At first there was only an action for trespass – an action based upon immediate and direct harm. These
were accidents that looked like purposeful harm – the standard of care was strict liability. The only defense

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was that of an unavoidable accident, e.g. wind knocked you over. Eventually this was expanded to harm
that was not immediate and direct a tort on the “case” was developed. This encompassed all harms that
were not trespass and the standard was negligence with the defense as reasonable care.

Policy: The two standards were eventually merged because the distinction seemed arbitrary. In cases
where the P and the D did the exact same things there could be two different outcomes. Hence, a unified
standard of “reasonable care” was created. Fundamental questions of fairness forced the court to change.

Trespass Trespass on the case

Elements 1) Direct and immediate application 1) Indirect and consequential
of force
2) Not intentional (but looks like it; e.g. tripping over iron bar
jumping around, fell and hit you)

e.g. getting hit in the face wt iron bar

Defenses Not volitional – wind caused me to fall Reasonable care
over and hit you in the face.
Standard of Strict Liability Negligence
liability
Limitations P perspective
 Same act of falling a tree by the D results in two different standards of care.

D perspective
 I did the same act, get two different standards – out of my control.

5.2. Unified Standard of Negligence

Degrees of Negligence
1. utmost care (so far as human skill and foresight can go)
a. common carriers, house guests
b. relationship of great dependency – once airplane takes off, passenger can’t do anything
c. Paying relationship – unequal bargaining power (monopoly) can’t bargain for safety??
2. reasonable care in the situation
3. gross negligence
a. hitchhikers, recreational land owners
b. gift – beggars can’t be choosers
c. Political lobbying – car insurers, rich people close to gov’t.

RULE: a person is responsible for “kind and degree of care which prudent and cautious men would
use such as is required by the exigency of the case and such as is necessary to guard against probable
danger.”
₪ Brown v. Kendall (1850), p33
Facts: Used stick to separate dog. Accidentally poked other person in the eye causing severe injury.

Classifies action on the dimensions of:

 intentional/unintentional
 involuntary/voluntary
 lawful/unlawful – legally permitted or not

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  necessary/unnecessary – legally mandated

Replaces CASE/TRESPASS with ORDINARY CARE aka NEGLIGENCE STANDARD FOR

PEOPLE IN THOSE EXIGENCIES.

“kind and degree of care, which prudent and cautious men would use, such as is required by
the exigency of the case, and such as is necessary to guard against probable danger”

Put burden of want of ordinary care on P, more economic than D proving it existed for all claims.

RULE: Negligence is defined by standard of Ordinary Care – reasonable precautions,

lawful exercise, not foreseeable.
₪ Adams v. Bullock (1919), p38
Facts: Boy swung wire around trolley. Electrocuted.

Found for D. Met standard of ordinary care.

Arguments for Arguments Against

1) Lawful exercise 1) Lawful exercise
a) This type of trolley is not illegal. a) Lawful, but negligent?
2) Not reasonably foreseeable 2) Foreseeable
a) No other accidents like this a) Lots of people on this path. This section
b) No special danger at this point of the line was foreseeably more risky
3) Reasonable precaution taken 3) Reasonable precaution
a) Coverings, distance, etc a) Did you have signs?
b) Guards all over the place not feasible

RULE: Negligence defined in economic terms: B < P*L

₪ US v. Carroll Towing (1947), p41
Facts: Boat sunk but could have been prevented if person was on boat.

If (B < P*L) -> NEGLIGENCE

B = burden of precaution
P = percentage of accident
L = total loss

See slides for economic analysis = comparison between choices, perfectly informed, no transaction costs
and can bargain, alternative actions, internalization of costs.

The concept
i) Negligence is the doing of something which a reasonably prudent person would not do, or the
failure to do something which a reasonably prudent person would do, under circumstances
similar to shoes shown by the evidence
ii) It is the failure to use ordinary or reasonable care
iii) Ordinary or reasonable care which persons of ordinary prudence would use in order to avoid
injury to themselves or others under circumstances similar to show shown by the evidence.

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 5.3. Economic Analysis of negligence

Assumes that actors are

1) Fully informed
2) Rational
3) Motivated to maximize self interest

Cost Internalization

Activity Substitution

5.4. The Reasonable Person

1. Reasonable person in the circumstances – objective standard. Because this can be harsh certain
exceptions have been created:
a. Physical disability (don’t hold a blind person to the same standard)
i. Blindness, deafness
b. Age
i. judged from a standard of a reasonable child
ii. if engaging in adult activities (driving car) level of reasonable adult
c. Mental Disability
i. Low IQ (no defense)
ii. Insanity, only if
1. Truly did not have choice, NON VOLITIONAL
2. OR if you did not see that act would cause danger
d. Superior Skills
i. Held to higher standard when quantifiable and testable, often a license is
involved
e. Emergency Doctrine
i. In cases of emergencies not caused by the agent, only responsible for “honest
exercise of judgment”

Reasonable person test = “What would a reasonable person given this situation do?” It is an objective act
based test (as opposed to state of mind and subjective standard). Includes factors such as the perceived
risk, relationship between parties, and gravity of injury.

“the man in the street or the man who takes the magazines at hoe and in the evening pushes the law mower
in his shirt sleeves.” Not infallible or perfect, limited in foresight, caution, courage, judgment, self control
and altruism.

We want to hold people to an objective standard because that is what we agreed to as a society. If a man
was born clumsy he owes it to society to be extra careful and to conform to a general standard.
Additionally, it would be incredibly difficult to adjust the measuring stick of reasonability for every person.

RULE: One standard of negligence – REASONABLE MAN.

₪ Bethel v. NY City Transit (1998), p47
Facts: P was injured on the bus and claims damages due to a lack of “utmost care” required from common
carriers.

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Holding: Court found that originally the “utmost care” standard was applied due to the extraordinary
amount of accidents resulting from the growth of steam powered railroads in the 19th century. Now that
public transport was as safe as private, no need for different standards.

Court wanted a standard as a matter of facts as opposed to a matter of law. To judge negligence as a
matter of fact a ‘reasonable man’ was created.

RULE: Reasonable man standards can shift with level of dangerous activity.
₪ Stewart v. Motts (1995), p49
Facts: D was handling gasoline and P claims that handling dangerous instumentalities should be done
under a “high degree of care.”

Holding: Court rejected his on the basis that there is only one standard that is flexible wt the facts.

RULE: The rule for reasonable man does not shift with mental capacity
₪ Vaughan v. Menlove (19), p53
Facts: Claimed D was too stupid to be held liable for his crimes.
Holding: Held that idiocy is not an excuse to be held up to the reasonable person standard

RULE: Sudden mental illness is does not shift the reasonable man standard.
₪ Bashi v. Wodarz (19), p
Facts: Claimed that she “wigged out” and has a family history of mental illness and hence should not be
liable for her acts.
Holding: Policy arguments – 1. difficulty of drawing any satisfactory line between mental illness and
temperament, personality, etc. 2. if they are insane and hurt people they should compensate those they
injure. 3. too easily feigned.

RULE: Infants are not held to the standard of a reasonable man.

₪ Ellis v. D’Angelo (19), p
Facts: four yr old shoved adult to ground.
Holding: Children are not capable of foresight and hence are not liable for their actions.

RULE: Children engaging in adult and dangerous behavior are held to adult
standards.
₪ Dellow v. Pearson (19), p
Facts: 12 yr old was driving a car and hit someone.
Holding: When a child engages in an inherently dangerous activity he must bear the burden of
responsibility for it. Other people do not know a child is driving and cannot protect themselves.

RULE: When suddenly faced with a circumstance not of your doing, one is
held to only an “honest exercise of care” standard.
₪ (19), p
Facts: Car in front of D suddenly stopped causing D to stop suddenly and negligently.
Holding: A person confronting an emergency not of his or her own making “is required to exhibit only an
honest exercise of judgment.” Because of shortness of time in which to react, should not be held to the
same standard of care as someone confronted with a foreseeable occurrence.

Dissent: same thing, reasonable man is judged by his circumstances.

Key Concepts
a) What are the degrees of negligence, when do they apply, and what are the arguments for
abolishing them? - There are three general gradations of negligence: gross negligence,

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 reasonable person, and utmost care. Gross negligence exists in the case where the court doesn’t
see such a strong obligations – such as in the case of hitchhikers. Reasonable person is in normal
cases. Utmost care exists in cases where there is a relationship of dependency and control, e.g.
common carriers.
b) What is the reasonable person test – negligence is found when the conduct of a person strays
from that of which a reasonable objective person in that situation would have done.
c) When is the reasonable person modified – the reasonable person standard is modified in cases
where physically the person is disabled in way such as blindness and deafness. Age is a modifier
but only for the young because they lack mental maturity. Mental modifications to the standard
exist for the insane.
d) Why do the modifications exist? Because it would be too harsh to hold a blind cripple insane
person to the reasonable person test when there is no way they could ever live up to that standard.

5.5. The Role of Judge and Jury

1. When should a jury or a judge decide? According to Holmes:

a. A new situation should always be decided upon by the jury –
they are the intuition of the community, they are the reasonable
person, they’ve been in similar situations and they can better judge
culpability.
b. After time has pass two patterns can evolved
i. Consistent – in this case the judge can just make a finding if
the facts have been seen before to save time and money.
ii. Inconsistent – the judge can step in because the jury obviously
doesn’t know what it is doing and set the standard of conduct.

RULE: Courts can decide the case when dealing with Standards of Conduct.
₪ Baltimore v. Goodman (1927), p58
Facts: D was crossing the railroad and was struck by a train and killed. Heirs are suing under survival
statute. Judge Homles said that when dealing with a standard of conduct, the Court can decide the case.
Namely, when a certain situation occurs over and over again, the court can set a standard of conduct for
which no jury is required to determine negligence if that standard is not met.
Holding: Found for the D.

RULE: Negligence and standards of conduct should be decided by the jury.

₪ Pokora v. Wabash railway (1934), p60
Facts: Similar facts to Baltimore. But the court overrules Baltimore.
Holding: Hard and fast rule set by the court are difficult to maintain and do not conform well to changing
scope of reality and expectations. Labeled courts efforts as “futile and often dangerous.”

RULE: On very obvious cases where there is no dispute on the evidence,

courts can decide when conduct is well below any standard.
₪Andre v. Pomeroy (1974), p64
Facts: D admitted to knowing that there was heavy traffic and still looking down away from traffic to
search through her purse. This caused her to lose control and get into an accident.
Holding: In the cases were there is “no conflict at all in the evidence and the D’s conduct fell far below
any permissible standard of due care” the court can decide.

RULE: Juries should decide upon negligence especially when standards are
changing
₪ Andrews v. United Airlines (19), p

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Facts: standard of negligence was “upmost care” for airline common carriers and P sued for damage
related to falling baggage that could have been prevented by netting. Although such injuries were far and
few in between and netting’s increase in safety was minimal, such inquiries still should go to the jury.
Holding: P defeated summary judgment because juries should decide what is negligent or not, especially
with changing times and dependence upon air travel.

5.6. Customs

Intro: Customs can help determine what is negligence or reasonable care. It is not dispositive but it can
help aid the jury in deciding. The jury still has to decide if the custom itself is reasonable. The practice
does not need to be universal.

1. Custom
a. Scope – must be in the same general business area. Big brewers are not
good standards for small brewers, etc.
b. Frequency – must be somewhat frequent, “substantial minority.”

RULE: Customs can aid in deciding whether certain activities are reasonable
or negligent – adherence to a custom is evidence for reasonable care,
violation is evidence for negligence.
₪ Trimarco v. Klein (1982), p67
Facts: P was injured when he fell through a shower door that was not made of reinforced glass. P claims
tort damages based off negligence. He attempts to prove that through the use of customs – that is everyone
at that time had switched to stronger reinforced glass.

Appellate division over turned saying that was a lack of notice. Actual or Constructive notice.

Custom
 Scope – same calling, business
 Frequency – a substantial minority, established practice.

Important because customs generally reflect what the community believe to be reasonable standards of
operation. If a D conforms to a custom it is evidence of his exercise of duty, while the breach of which can
indicate negligence.

however, customs are not dispositive. Often times the customs lag behind what is reasonable (tug boats
with no radio) or that there are alternative yet equally reasonable methods of operation.
Holding:

Key Concepts
1. How is custom defined?
2. Why is custom relevant to determining the standard of care?
3. Why is custom relevant but not determinative?
5.7. Statutes

1. Statutes intended to protect the citizenship when violated is negligence per se

2. TEST R 286
a. To protect a class of persons which include the injured party
b. To protect the particular interest invaded (bodily, financial, property, etc)
c. To protect that interest against that particular type of harm (fire, physical blows, etc)
d. To protect that interest against the particular hazard
3. only defense if unavoidable accident

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4. Non compliance justified if the statute is not reasonable or does not always protect public interests.

RULE: Negligence per se established when a statute created for the public
good is violated in the absence of an unavoidable accident.
₪ Martin v. Herzog (1920), p
Facts: D was driving left of middle. P was driving without lights. D claims contributory negligence.
Holding: Statutes that are defined to protect the public good set the standard of care. Violation of the
statutes is negligence, unless not volitional or unavoidable accident.

When does a statute’s regulation dispositive of the actions of a reasonable man?

Restatement 286
 To protect the class of persons whose interest is invaded
 To protect the particular interest being invaded (property, mental, etc)
 To protect that interest against the type of harm suffered (traumatic, poison, burning, etc)
 To protect against that type of hazard

RULE:
₪ Tedla (19), p
Facts: P was walking facing away from traffic when statute says they should walk facing traffic. Hit and d
claims contributory negligence under the statute and Martin.
Holding: Martin does not always hold in cases where the statute is inferior in protecting the individual (act
v. rule utilitarian). This means P now has burden of proof as of negligence per se.

Key Concepts
1. What is the doctrine of negligence per se? it is a concept that allow the court to define the standard
of care solely through what the legislature has defined it.
2. When does it apply in a particular case? It applies when the legislature states the standard of care
when it applies to protecting the public health and when it meets restatement 286 (injured must be
party of intended class,
3. When does a statute or regulation give rise to negligence per se?
4. What is the impact of negligence per se?
5. Why have courts sought to limit the impact of negligence per se?

5.8. Proof

Standard of proof for torts: Preponderance of evidence.

Categories of Evidence
1) Documentary – notes, writings, photographs, etc.
2) Direct– eye witness testimony
3) Circumstantial – least reliable and most difficult to center entire case on - but
most popular.

The law understand the inherent difficult in proof and allows for certain allowances.

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 5.9. Of Notice (3rd party actions)

In cases where conditions can be altered by third parties, such as public shopping
areas, notice needs to be proven to establish negligence.

RULE: Notice must be proven to establish negligence in self service models.

RULE: Notice can be either actual or constructive – the latter can be

inferred from circumstantial evidence.
₪ Negri v. Stop and Shop, Inc. (19), p
Facts: P slipped and fell on the floor. There was evidence that the broken bottles had been there for
several hours. No body heard breaking bottles 15-20 mins beforehand and there was evidence that the
bottles had been broken for 2+ hours.
Holding: For summary judgment the inference should be that the D had notice and time to repair and
hence negligence could be found. Circumstantial

RULE: Notice must be of specific danger, not of general danger.

₪ Gordon v. American Museum of Natural History (19), p
Facts: P slipped on a piece of waxy paper in front of the museum from a concession stand the Museum
knew was there. P claims there was constructive notice because the Museum knew there was other litter
there.
Holding: Not sufficient to show notice. It is not enough to say that the Museum knew of litter, but knew
of that specific piece of litter that caused the harm. Might have been different if the paper was dirty and
hence showed that it had been there for a long time. For all we knew, that liter could have blown in 1
minute before the accident.

RULE: Business Practices – No need to prove notice if the business creates

inherent and foreseeable harm, such as self service model. Business has the
burden of showing that it took reasonable steps to identify and remove potential
risks.
₪ Randall v. K-Mart Corp (19), p
Facts: P slipped in K-mart on bird seed. Wants to invoke the “business practice” rule to show that he
doesn’t need to prove notice – D should have known of the danger.
Holding: Business practices
“Does not require constructive notice for business practices that create a reasonably foreseeable risk of
harm to invitees.” E.g. slipping on a banana in a produce section. “This self service method carried with it
a corresponding duty of care by the store to use reasonable measures to discover and remove.. harm.” A
merchant that uses such a self service model must bear the burden of showing what steps were taken to
avoid the foreseeable harm.

Did not apply to bird seed, because that type of harm was not foreseeable.

5.10. Res Ipsa Loquitur

1) Elements of Res Ipsa (to prove breach of duty)
a) Not the type of accident that normally occurs without negligence
b) The D had exclusive control over the instrumentality that caused the harm
c) P in no way voluntarily contributed to the accident
2) Evidentiary Effects
a) Inference (NY)
b) Weak presumption (CA)
c) Strong presumption
3) Policy

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 a) Wigmore v. Prosser
i) Wigmore – only use Res Ipsa when it can produce evidence.
ii) Prosser – used Res Ipsa in all cases, even when no evidence and outcome
dispositive.

Res Ipsa is used by courts as a tool for P’s to overcome lack of evidence when the
harm “speaks for itself.” Typically if res ipsa is found, the D’s have a burden of
production to counter weigh the presumption.

RULE: Some crimes are proof of negligence in and of themselves.

₪ Byrne v. Boadle (19), p
Facts: P was walking next to D’s flour shop when he was hit by a bag of flour. No proof of negligence
since D employees won’t talk to incriminate themselves.
Holding: D was guilty res ipsa loquitur.

RULE: Res ipsa loquitur

a) not the type of accident that occurs without negligence
b) D is in complete control of the instrumentality (P could have done
nothing to change the situation)
c) Accident was not a result of P’s actions (in CA, similar to b)
₪ McDougald v. Perry (19), p
Facts: P was struck by a tire that fell from D’s truck that was held together by a gain. Court of appeal
reversed decision for P saying res ipsa did not apply.
Holding: Supreme court found (empirical fact) that tires falling off cars was not normal and hence does
meet the rule of res ipsa.

RULE: Res Ipsa can be rebutted through the production of evidence.

₪ Leonard v. Watsonville (19), p
Facts: P sued for medical malpractice when he found clamps in his body left after surgery. One of the
three doctors claimed he did not operate on that section and used different clamps.
Holding: Charge against the doctor was dismissed as a matter of law.

RULE: Res Ipsa cannot apply unless the instrumentality of harm is

identified.
₪ Helton v. Forest Park (19), p
Facts: Girl went to day camp and came back with a blind eye. No instrumentality was found.
Holding: Res ipsa cannot apply unless the instrumentality of harm is identified.

RULE: Res Ipsa’s instrumentality requirement is flexible when it comes to

unconscious patients – may involve more than one party when it is unclear
which one caused the harm
₪ Ybarra v. Spangard (19), p
Facts: P was getting surgery and after he awoke he had damage to his nerves. He was being operated on
by 3 separate doctors and the exact reason for his injury was identified only as “trauma or pressure.” D
argues that the exact instrumentality is not identified. One of them was obviously guilty.
Holding: Court found that the reason for res ipsa was that of evidentiary fairness and in the case of an
unconscious patient we cannot reasonably ask for him to recognize the instrumentality or specifics. Res
ipsa’s purpose was found to apply to pressure all three doctors to be liable or provide evidence.

₪ Chin v. St. Barnabas Med. Center (19), p

Facts: Patient died when an air embolism was entered into her bloodstream. P sued all parties that could

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have been involved – doctors, nurses, etc.
Holding: At least one party must be found guilty – given to jury.
Contrasted against
RULE: Don’t extend the rule of Ybarra too far – flower pot from a building.

Key Concepts

1) What are the elements of res ipsa loquitur? 1. that the accident was not
one that normally occurs without negligence 2. that the D was in exclusive
control of the instrumentality of harm 3. that there was no voluntary
contribution by the P.
2) What is the evidentiary effect of establishing the elements of res ipsa
loquitur? Depending upon the state, it can either establish an inference, weak
presumption or strong presumption for the P. this may shift the burden of
production/persuasion.
3) What are the policy reasons for allowing a plaintiff to invoke res ipsa
loquitur? In cases where evidence is lacking res ipsa is evidence producing.
4) Should res ipsa loquitur be used only as an information-generating
device? Or should res ipsa loquitur also be used when it is outcome-
dispositive? This is a great question and one to me which seems to hinge upon
whether you’d allocate your risk to convicting more innocents to not let a few
guilty parties get away. The question can be analyzed in terms fo deterrence,
compensation and moral fairness.
5) Should the plaintiff be allowed to rely on res ipsa loquitur when specific
evidence of negligence is available? Yes, why not use both in combination?
The two in unison produces more evidence for which to decide cases, either guilty
of innocent. Seems to serve both deterrence and compensation. Is it morally
fair? Hung by two ropes? Unfair to make the P choose one or the other when
both can apply.

5.11. Medical Malpractice

1. Custom defines duty for medical malpractice

a. Geographic Scope
i. Same or similar geographic location – frowned upon because
would introduce double standards for local poor communities.
ii. National standards – favored because of modern trends,
internet, and conferences.
b. Scope of calling or profession
i. Should be in practice, the same level
ii. Anyone who is knowledgeable about the area
2. Should res ipsa apply
a. When there already is evidence - - yes, get more evidence.
b. When expert testimony is required – yes, raises jury to level of
“reasonable expert.”
3. Informed Consent
a. Right to know v. right to good med treatment
b. Autonomy versus battery
c. Apply a reasonable patient standard
d. Right to know about alternative treatments, material risks and benefits

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 i. Objective – ordinary joe blow
ii. Subjective – world class violinist
e. Exceptions: common knowledge, emergencies, patient is incompetent

General negligence is found in comparison to a fictional reasonable person in the

attenuating circumstances approach. However, medical malpractice involves expert
testimony and the standards are set by the community.

RULE: Medical malpractice must be establish through an expert unless

obvious to the common man.

RULE: The “similar locality” rule is outdated given modern trends and could
set different standards for poorer communities.
₪ Sheeley v. Memorial Hospital (19), p
Facts: P lost trial due to her expert witness being excluded. Unless the mistake was gregarious negligence
must be established through an expert for medical malpractice.

D argues
1. Doctor did not practice in the same field
2. Doctor was not currently practicing in the same locality
3. Doctor was overqualified and not the same as a 2nd year general practitioner
Holding: The question at hand is the standard of care for a particular procedure – in the end the same exact
field or over qualification are not determinative. That the doctor was board certified and has decades of
experiences and sets the standards for regulating bodies is enough.

The similar locality rule also misses the point of the standard of proof and could on a policy level justify
differing standards of care for poorer communities.

RULE: Res ipsa is allowed when there is expert testimony.

₪ Connors v. University Gynecology (19), p
Facts: P was paralyzed when restraining clamps pinched upon a nerve. Court found for P in the initial trial
when a res ipsa instruction was given. D appeals that res ipsa should not apply in cases where there is
expert testimony – namely that res ipsa is a tool of inference for the general population to find negligence
using common knowledge – but that is thwarted with expert testimony.
Holding: Jury needs medical knowledge to make such inferences. It is encourage that the jury should be
given both the choice of deciding upon res ipsa or regular negligence but it is critical that they are
informed. Expert testimony allows then to have enough knowledge to make good inferences.

RULE: Informed consent requires knowledge of all alternatives, even when

recommended track is non invasive.
₪ Matthies v. Mastromonaco (19), p
Facts:
Holding:

Based upon reasonable patient expectations of autonomy rather than reasonable physician and based off
battery.

Key Concepts
 What is the role of custom in defining the standard of care in medical
malpractice cases? Custom basically defines the standard of care. Because
the area of practice is so specialized and continually evolving the only people
that can define reasonable care are the experts in that area defined by
custom.

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  How is custom defined? The definition has evolved over time and generally
split across two areas – geography and similar profession. One definition of
custom has it defined geographically – either by the same or similar local or
by national standards. Originally the custom was defined in the same local. I
was believed that doctors in the same area deal wt the same issues and
limitations and were a good barometer of reasonableness. Problems of
“conspiracies of silence” and a lack of comparison or bad comparisons led to
an expanded “similar local” standard. This was eventually abandoned for a
national standard which was founded upon the idea that conferences, the
internet, all disseminate information without past limitations of geography.
There is also the question of type of employment – that is should the expert
and standard be derived from a person only in that area of expertise or from
any expert as long as they know what is going on in that field?
 How does informed consent differ from a claim of malpractice in
administering a treatment? One is the question of autonomy the other a
question of battery. It is the difference of not informing the patient all the
possible options and not reasonably performing one of those options.
 How does the “reasonable patient” rule differ from the “reasonable
physician” rule? Reasonable patient speaks to what the knowledge a
patient would want while reasonable physician speaks to the standards in
which he should perform medical operations.

6. Duty for physical harms

1) Duty can be established through
a) Fiduciary or special relationship
i) Relationships of trust and dependency, e.g. paid for services and cannot
protect oneself
ii) Familial, etc.
iii) Social host, adventurer
b) Enhancement of risk
i) Negligent - Must know or should know that there is a risk (e.g. moving
injured friend is not negligent if u didn’t know he was injured)
ii) Non-Negligent
(1) R 321 – if you later find out of risk u created u must warn
(2) R 322 – if you discover your actions make another party unable to
protect themselves you have a duty to protect them.
c) Voluntary assumption of duty
i) Must know or should have know of risk – not voluntary if no knowledge
(e.g. kind actions are not assumptions of risk unless they know of the
risk)
ii) To establish you need to show
(1) “reasonable care during your rescue attempt”
(2) Can’t leave them worse off than before – detriment rule. (false hope
included)
(3) Detriment found when isolated from other people that could have
helped

2) Duty should be analyzed through

a) Scope – does a duty exist?
b) Nature – what type of duty exist?

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 c) Breach – was this duty breached?

RULE: Greater knowledge of danger implies no duty unless there is a

special relationship or the other party is unable to protect themselves.

RULE: Social host relationship implies no legal duty.

₪ Harper v. Herman (19), p
Facts: P was a guest on D’s boat. P dived into water that he did not know was shallow and was hence
paralyzed. P sues D on the basis that D had and obligation to warn him about the shallow water – P being
unaware of the danger and D was aware.

Not enhancement of risk because the action was not negligent.

Holding: found that knowledge or greater knowledge of a danger does not imply a duty when there is no
special relationship and the other party is capable of protecting themselves.

RULE: If through your actions (innocent or tortuous) you know that you have created a risk, you
have a duty to exercise due care to mitigate that risk.
Restatement S 321 Subsequently realizes or should realize that he has created an
unreasonable risk of causing physical harm to another. He is under a
duty to exercise a due care to prevent the risk from occurring.
Restatement S 322 If the actor knows or has reason to know that by his conduct, whether
tortious or innocent, he has caused such bodily harm to another as to
make him helpless and in danger of further harm, the actor is under a
duty to exercise reasonable care to prevent such further harm.

RULE: Social venture counts as a special relationship between parties that

can establish duty.
₪ Farewell v. Keaton (19), p
Facts: P went out wt D to drink. P was beat unconscious. D put P in the back of the car and left him there.
P eventually died due to lack of medical attention. P claims D had a duty to do take reasonable steps to
protect him.
Holding: P owed D a duty because both parties were on a “social venture.”

Key Concepts
1. What are the three elements of duty? Scope (is a duty owed), nature (a duty to do what), and
breach.
2. How can the first element, the scope of the duty, be established? It can be established through
many means. In general you have a duty when there is a 1. Special relationship 2. Enhancement
of risk and 3. Assumption of risk.
3. Why is there no general duty of rescue, not even a duty of easy rescue, at common law?
Western law values the autonomy of the individual. Even if it took little or no effort to help
someone else, our law does not make you help them. You may be morally obliged, but not legally
obliged.
4. What is the special standard of care that applies when someone voluntarily assumes a duty
to render aid? You have a duty of due care. You must leave them in a condition not worse then
as you found them, including things like opportunity to be helped by others or false hope.

6.1. Contractual Obligations

1. Contractual obligations can lead to duty

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 a. Quasi privity – court’s adopted stance for utilities to avoid crushing
liabilities. Found that otherwise laiblity were impossible to predict.
b. Privity – only if you have direct privity or are a 3rd party beneficiary.
c. Reasonable Foreseeability – regular tort action.

d. Considerations
i. Utilities pay only those in direct contractual privity
ii. No third party beneficiaries
1. Crushing debt
2. Impossible to predict liability at time of signing contract
3. Endangers a public utility
iii. Want to reduce the number of lawsuits then you allow 3rd
parties
iv. Make a distinction between long term v short term visitors,
living there v. mail man

RULE: Utilities are not held to the general tort standard of negligent
enhancement of risk due to policy reasons, but are only liable for those with
direct contractual privity. Courts generally choose a standard of Quasi-
privity. Does not include 3rd party beneficiaries.
₪ Strauss v. Belle Reality (19), p
Facts: P slipped in the common area of an apartment due to a blackout caused by the negligence of Con
Ed. D had a contractual relationship with Con Ed, but P did not. The question is whether P can sue Con Ed
for damages.

Tort = negligent enhancement of risk implies a duty to all those foreseeably injured
K = duty to those in privity and intended 3rd party beneficiaries. Intended v. incidental beneficiaries.

Critiqued on policy grounds – Con Ed could have more easily distributed the loss through its customers
than P. Deterrence, Moral Fairness, and Compensation – gives weight to extending liability.
Holding: Contractual obligations can create duty, but when it comes to utilities the public policy concerns
limit liability to contractual privity instead of the tort standard of foreseeable enhancement of risk.

₪ Moch
Facts: Building burned down because water system of D was broken. P wants to sue as a third party
beneficiary of the K between D and the city.
Holding: Rejected on policy grounds that they did not want to overburden the public utilities.

Key Concept
1. When can a contractual obligation give rise to a duty in tort? Depends on the situation, but
with utilities it is limited to quasi privity. In other cases it can be privity or 3rd
party beneficiaries.
2. What are the differences among approaches based on privity, third-party beneficiary, and
reasonable foreseeability? Who does it cover. Ascending degrees of coverage.
3. As a matter of policy, which of these approaches is best? 3rd party methinks, foreseeable and not
huge liability.

6.2. Statutory Obligations

RULE: Legislative duty create a private right of action only if

1. such a right is specifically stated in the statute

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 2. such a right is not stated but a private right of action
a. the P is the class to be protected
b. the private action would enhance the legislative purpose
c. the private action is consistent with the legislative scheme
₪ Uhr v. East Greenbush Central School District
Facts: P is suing the district because it failed to diagnose a case of scoliosis that developed and now
requires expensive surgery. Detection of scoliosis is mandated by the statute and P claims a duty from that.
The question for the court is whether a private right of action is created from the statutory obligation.

A private right of action exists when:

1. the statute explicitly states such a right exists
2. Unstated duty.
a. when the injury is of the class to be protected
b. when the private right of action would enhance the legislative purpose
c. when the creation of such a right would be consistent with the legislative scheme.

Found that it was not consistent with the legislative purpose because 1. enforcement scheme already
existed and 2. other parts of the legislation specifically stated no liability.

Why not special relationship? That relationship existed but not for medical testing.
Why not assumption of risk? Test was never applied so no assumption.
Holding:

6.3. Obligations to protect a third party

In general from physical harm

This is the interesting case where because of your relationship to one party you owe a duty to another party.
1) Obligation to a third party
a) When there is a relationship with one of the parties (victim, criminal)
b) when there is an identifiable and foreseeable victim
c) and a threat to cause death/serious bodily harm
2) Nature of the duty
a) Cali codes - just a duty to warn victim and police
b) Tarasoff 1 – no duty because no relation between victim/doctor.
c) Tarasoff 2 - Take reasonable steps to protect the victim (warn, tell police,
restrain)
3) Arguments against
a) Threatens the privacy of the victims – doesn’t matter. Utilitarian values life
over privacy. Internal codes even say to disclose information when risk of
death or serious bodily harm.
b) Doctor’s judgments too unpredictable – doctor can use their own discretion,
judged by their peers to determine custom reasonableness.
c) More than one party – dilutes the claim, but if a small number then duty still
applies. If a large number less of a duty – a gamble that might not actually
help the potential victims.

RULE:
₪ Tarasoff v. Regents of California

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Facts: P’s child was killed by a patient of D who told D he wanted to kill. P claims that D had a special
relationship with the killer and has a duty to protect.
Holding:
Will podar be deterred by Tarasoff? No, he’s gone, mentally distrusted, no money he is also criminally
liable… all kinds of other incentives not to commit acts beyond tort.

Can’t deter Podar, can’t deter the police (immunity). Can only deter psycho therapist. Court says we’re
only asking you to do something that is reasonable.

Court found duty based off the idea of foreseeability. Harm was very foreseeable and thus because of the
special relationship he had a duty to prevent the harm.

Key Concepts
1) Is the imposition of this duty justifiable based on deterrence,
compensation, and moral fairness? Why or why not? In many cases this si
based of deterrence, because the criminal cannot be deterred – obviously the
much harsher criminal punishments don’t deter so tort damages won’t either.
Criminals are often times poor – allowing this duty opens up more pockets.
Moral fairness is the big question – doctor did not commit the crime. But is it fair
to let damages lie with the victim?

Duty not to misrepresent

1) Duty not to misrepresent – Scope

a) False statements
i) Narrow view – must be affirmative misrepresentation
ii) Broad view – can find misrepresentation by reading between the lines,
reasonable inferences
b) That were negligent
c) That would cause physical harm to a foreseeable 3rd party
d) And which were reasonably relied upon and which reliance caused the harm
2) Duty
a) Don’t be misleading
b) Don’t have to disclose all information – no comment or stick to facts.
3) Policy
a) Does it really improve the flow of information – might stifle it
b)
RULE: IN CA – you have a duty to not misrepresent (affirmative or
reasonable inference from half truths) when you can see reasonable
reliance and a specific harm to a third party

RULE: In most states – only duty not to affirmatively misrepresent.

₪ Randi v. Muroc Joint Unified School District
Facts: P was molested by a teacher who received sterling recommendations from D. D knew of teacher’s
sexual misconduct yet never wrote about it in the letters. The letters were proximate in the decision to hire
the teacher. P sues that D owed a duty to not mislead in the letters.
Holding:
R 311 – Fraud and Negligent misrepresentation
1. False statements
2. reasonable reliance

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 3. foreseeable harm to 3rd party

Policy reasons
1. Foreseeability - harm was foreseeable
2. Compensation - there were ways to avoid the loss, e.g. insurance/no comment letters or full
disclosure letters
3. public policy wants to protect children bc they cannot protect themselves
4. information – want to encourage better information being distributed

D claim they never lied, only did not disclose. Court fount that misrepresentation can exist in “half truths”
if reading between the lines leads to an inference that is false.
1. Narrow view = only affirmative misrepresentation is misrepresentation
2. Broad view = if general inference is false then misrepresentation

Most states do not follow this rule -> most still find duty only not to misrepresent aka affirmative
misrepresentation.

Will this really improve the flow of information? The question is if this will actually increase full
disclosure or no comment letters or strictly factual letters.

Why is liability owed only to physical damage? Because while we value the free flow of information, we
attach a higher value to the sanctity of the body.

Negligent Entrustment

1) Duty of Negligent Entrustment

a) When you provide chattel directly or through a 3rd party
b) To tortfeasor you know or have reason to know who is risky and may
cause harm to another
c) Responsible for that harm

d) Tortfeasor must have negligently caused accident that was of the type
foreseen by the conveyer.

2) Established at time of conveyance, not at time of accident

3) Known or have reason to know v. know or should know
a) Know or have reason to know – based upon what is in front of you
b) Know or should know - Based upon what is reasonable for you to
investigate.

4) Social host exception

a) Ability to monitor – social hosts don’t have the bouncers, bodyguards,
bartenders, etc, ability to monitor
b) Ability to absorb cost – bars can pass costs on to customers, not so with
social hosts
c) Disparate impact on society – impacts society rather than just bars.

RULE: Negligent Entrustment – one has a duty not to entrust chattel to

another when one knows or should know that doing so creates a risk.
₪ Vince v. Wilson

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Facts: P was injured in a car accident. Car was paid for by D and by auto store, both of whom knew that
the driver was unskilled, inexperienced and suffered from drug and alcohol problems that would likely
result in accidents.
Holding:

Knows or should know = should investigate

Knows or has reason to know = constructive notice.

Justified on the basis of deterrence, moral fairness, compensation.

Key Concepts

1) What is the tort of negligent entrustment? When you provide chattel to a

party which you know or have reason to know that they will cause harm to
themselves or another party you are liable for that harm.
2) What acts of negligence are necessary to trigger liability under negligent
entrustment? First, the entrusted party must use the chattel negligently to
cause harm to a third party in a way foreseen by the conveyer. Secondly, the
conveyer must provide the chattel to the party he knows or has reason to know
will cause harm.
3) As a matter of policy, which approach to negligent entrustment is
superior: one that focuses on the time of the accident or the time when a
chattel is conveyed? Even as a matter of logic, the time of entrustment seems
more logical. It is the actual entrustment that matters – the ability to revoke
ownership is almost an accident, may it be exercised before the actual accident.
From a policy perspective, Moral: seems strange to leave out a party that caused
it just because they did not have control after conveyance. Compensation – open
up more pockets. Deterrence – also slam down on causal parties.

RULE: exception of Negligent Entrustment when concerning social hosts (v.

commercial vendors) and alcohol
₪ Reynold v. Hicks
Facts: P was injured when intoxicated minor at D’s wedding struck them. P claims D was negligent in
serving alcohol to a minor that would cause a foreseeable harm.
Holding: Court did not extend duty to social hosts
1. Social hosts can’t absorb the costs as easily. Commercial vendors add the cost of bouncers, etc,
into the drink.
2. Social hosts can’t monitor as easily as commercial vendors (e.g. hiring bouncers)
3. disparate social impact – only impacts only bars, the other ranges into all types of social events.

Deterrence – social host the most likely to be deterred. Underage drink might not care.
Compensation – the more people the better.
Moral fairness – minor is the most culpable party, then the social hosts.

Key Concepts

1) What are the general rules regarding liability to third parties for
providing alcohol to customers or guests who later drive while drunk and
cause an accident? In general, commercial vendors are liable for negligent
entrustment for their customers that get too drunk and cause an accident. They
have to know that the customer is way too drunk and is likely to cause an
accident.
2) Why are social hosts and commercial vendors treated differently?
Basically social events are distinct by three categories 1) ability to monitor –

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 social events are typically parties and informal without the body guards,
bouncers, etc, necessary to monitor the consumption of alcohol. 2)
compensation – social gathers and events do not have the same ability to cover
the costs. A commercial vendor can pass the cost on to its guests while the
social gather this is not possible. 3) one can claim that you don’t need to have
alcohol (alternative actions), but to impose such a liable and demand would
fundamentally alter many social structures – thus there is a disparate degree of
impact upon social events and commercial establishments.

3) Is this differential treatment appropriate? I think driving is vital to society –

it exists across cultures for a reason.

6.4. Landowners and Occupiers

General Rules

1) Main classifications
a) Common law definitions
b) Reasonable care across the board
c) Reasonable care except for trespassers
d) Reasonable care except for criminal trespassers
2) Classic landowner duties
a) Trespassers
i) Definitions – without permission or consent
ii) Duty
(1) no duty
(2) no wanton/willful misconduct
b) Licensees
i) Definition – with permission
ii) Duty – warn about known dangers that are not obvious. Just a duty to
warm, not to remove.
c) Invitees
i) Definition –with permission and presence gives land owner benefit
(1) Business Invitee – might make a purchase, chance of material
gain, business good will, might return
(2) Public Invitee – invitation based to the public at large
ii) Duty – reasonable care to warn/remove known or should have known
dangers, plus everything above inclusive.
3) Classic rule modifications
a) New Classes
i) Child Trespassers
(1) Definition – children that trespass due to an artificial attractive
nuisance near the border of the property that would be reasonable
attracted
(2) Duty – reasonable care not to have those nuisances or to
protect the children from the harm, e.g. pool of chemicals v. pool of
water.
ii) Frequent Trespassers

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 (1) Definition – frequent trespasser that LO knew or should have
known about, trodden path at corner of property. Treated as
constructive consent.
(2) Duty - treated like licensee.
iii) Discovered Trespassers
(1) Definition – trespasser discovered on the land.
(2) Duty – not to use unreasonable means and to allow trespasser
to leave on the most direct route. Possible duty to warm of dangers.

b) General Additions
i) Traps – no traps: 1. artificially created 2. Inherently dangerous 3.
Deceptively innocent.
ii) Active use – active = flaming drinks, reasonable care.

4) Unified Standard – people got tired of quirky and quickly shifting standards
a) Reasonable care for licensee/invitees
b) Some exceptions for civil/criminal trespassers

Why do landowners in some cases owe less than a duty of reasonable care? In essence your home is your
castle and you can have it how ever you want. People who go there without permission don’t have such a
duty. Plus, since you are the master of the domain, in some cases you might owe a high standard of care.

Why would we want to split trespassers in the unified standard?

1. deterrence – you already make the investment for licensee and invitees, if we are trying to deter
injury to trespassers then you should have a unified std.
2. moral fairness – your house is your castle, the trespasser is such a front to your automony. Civil v.
criminal trespasser – deeper affront to your autonomy. But criminal trespasser is already being
punished under criminal law. Degrees for felonies/misdemeanors.
3. compensation – also unified std

Type Factors Duty

Trespasser Enters without permission Some jurisdictions have no duty

Most have “no willful or wanton misconduct” – no

traps that are artificially created, deceptively
innocent, inherently dangerous – dogs do not apply.
Licensee Enters with permission, social To warn of dangers known to the landowner and
guest not obvious to the entrant. No need to remove as
long as you warn.
Invitee Enters with permission and Reasonable care standard – you have to duty to
serves the interest of the remove known dangers and those that would be
landowner revealed upon inspection.
1. business invitee – doesn’t
need to buy, just the Can’t leave dangers lying around. Plus all the duties
potential for material gain above. Have to find dangers that would be a risk.
2. public invitee – invitation to
the public at large
Modified Standards – times changed, people no longer live on huge tracks of land for which it was
impossible for them to be responsible for.
Child Child who trespasses on land Reasonable care to not create artificial “attractive
Trespasser nuisances” that would cause physical harm.
Frequent Frequent trespassers who the
Trespasser owner does not stop from

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 trespassing have implied consent
to use land -> licensee
Discovered
Trespasser

RULE:

Trespasser – entrant without permission – no wanton, willful

Licensee – entrant with permission – reasonable care for known dangers
Invitee – entrant with monetary gain/implied safety or open to public –
reasonable care for known and unknown dangers
₪ Carter v. Kinney
Facts: P was invited to a bible study a D’s house and slipped on ice at the front door and sue for damages.
D claims that he had no duty of reasonable care for known and unknown dangers, that P was merely a
licensee and that he only had a duty to warn of known dangers. P claims they were invitees.
Holding:

RULE: Duty of reasonable care is the same for licensee and invitee, a
separate category for trespassers.
₪ Heins v. Webster (19), p197
Facts: P was visiting his daughter at the hospital where she work and slipped on ice accumulated at the
front door. P sues that the hospital negligently did not warn of the icy conditions and allowed the ice to
accumulate. P claims that the hospital failed in its duty of reasonable care.
Holding: Court eliminated the distinction between licensee and invitee and collapsed them into one
standard of reasonable care. A separate category still exists for trespassers because there should be a
different standard of care for those not legally upon the property.

Reasons for classifications Reasons for not having classifications

 Predictability of liability
 Harshness of the common law classifications
have been mitigated through case law which
has created subcategories, etc.
 Clear guidance on obligations
 Entrant’s status should not determine the duty
the landowner has. All should have
reasonable care with status as one dimension.
 Reasonable people do not naturally think
along the classification lines – e.g. when I
enter your house as either a business partner
or a visitor, I do not naturally think of a
difference.
 Classifications could have made more sense in
the past, where people owned large tracks of
land and could not be responsible for
everything on it – no longer applies to today’s
urban setting.

The standard for reasonable care is easy to find since it is what is applied to invitees.
Factors in determining the level of reasonable care
 Foreseeability
 Purpose for which the entrant entered the premise
 The time, manner, and circumstances under which the entreated entered the premise
 The use of the premise
 The reasonableness of the repair, inspection, or warning
 The reasonableness of the repair or correction given the warning
 The burden in providing protection

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Argument against
 YMCA has outdoor basketball hoop. Non member goes to the land and injures himself. Under
unified regime he is a non trespasser, entitled to reasonable care. Seems strange.

Landlord and tenant – what responsibilities does a landowner have towards a tenant?
 if the injury was a result of a hidden danger to which the landlord is aware
and the tenant not aware
 premises leased for public use
 common areas under control of the landlord
 negligent repairs
 promised to repair and did not

Liability for harm outside your premise

1. only if harm is foreseeable and creates an unreasonable risk
2. bungee jumpers close to the bridge not necessary liable.

Landowner’s duty to protect from criminal activity

1) Does the landowner owe a duty to protect from criminal activity?
a) Specific harm – must know of specific imminent harm
b) Prior similar acts – similar acts on the premise – time, type, weapon, etc
c) Totality of the circumstances – look at past acts, neighborhood, changes
in environment, etc.
d) Balancing test – similar to totality of the circumstances but

Protection from Criminal activity

2) a duty exists when there is a known danger and action that only the landlord can
take to mitigate the risks
3) in an apartment complex, only the manager can install security systems,
cameras, etc.
4) this cost will be passed down to the tenants
5) landlord if not completely liable, but must make reasonable steps

RULE: Merchant has a duty to protect customers from crime based upon the
balancing test.
₪ Posecai v. Wal-Mart Stores, Inc. (19), p206
Facts: P was robbed in the parking lot of D’s premise. The robbery occurred when it was not yet dark. There had
been very few other robberies of this kind. None of the other stores had different security systems.

There exists a duty for store owners to reasonable protect their invitees from foreseeable dangers.

The question here is if the dangers presented to P and if there was a duty -
Specific harm Prior similar acts
 duty only if  Prior similar acts
landowners knows of created foreseeability
the specific and of criminal acts.
imminent harm  Hinges upon the
frequency, number,
 not used because too recency of crimes.
narrow  Criticized because
Totality of the Balancing test
circumstances
 Look at the totality  Look at the
of the probability and
circumstances, amount of harm v.
including prior cost to prevent
similar acts, but  Foreseeability is
also the based upon the totality
neighborhood, of the circumstances

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 subjective test leads nature, location, rule.
to varying results. etc.  Before more liberal –
 Only on your  Lesser, nearby “incubator of crimes”
premise, not nearby. crimes now Can excuse due
to different crimes
Holding: Went with the balancing test – the probability and amount of harm measure the duty the landowner owes.
This also includes various levels of protection – ranging from security guards to surveillance cameras. Choose this
because of the social and economic impact of such burden, don’t want businesses to not open in dangerous areas.

Found that prior crimes were different and too few.

Landowner Right to resist criminal activity

1) Duty to use reasonable care in resisting criminal activity

a) Don’t have to give them money or follow demands
b) But cannot provoke criminals “shoot, I dare you!”
2) Policy reasons
a) Autonomy of the individual
b) Don’t want to give criminals an incentive to commit crimes

6.5. Intra Familial Duties

1) Spousal – in the common law the husband and wife were considered one entity
and hence no suits between them were allowed. With the Married Woman’s act,
women got the same rights as a man and were then allowed to file spousal suits.
Arguments against intentional torts related to spousal unity were thwarted with
the nature of the lawsuit – negligence soon followed.

2) Parental – some parental immunity still applies. Children are dependant upon
parents and the role of the family and right to raise children as they please and
keeping the gov’t out of the family room are major concerns. Children were
chattel. Children remained dependent. Family is a little commonwealth – we
don’t want the state to have too great a role in the way families conduct their
affairs and setting their values and the value of democracy. We also don’t want
families to be so unhealthy that they undermine the strength of the state.

First ask if takes place in the name of parenting. If not the just reasonable. If so,
then parent.

a) Goller Standard – you can do anything you want, even gross negligence as
long as
i) Where the alleged negligent act involved exercise of parental authority or
provision of necessaries
ii) AND where the act involves an exercise of ordinary parental discretion
with respect to provision fo food, clothing, housing, medical and dental
services, and other care.

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 b) “All but the world” standard – if you owed the duty to the world, then it
was not covered by parental immunity.

c) Reasonable Parent Standard – what would a reasonable parent do?

d) Insurance Standard – Liable to the point that insurance will pay for it. So
raw because it only looks only for compensation.
e) Exceptions – where you are not considered a parent
i) Willful, wanton, and reckless acts (does not affect harmony)
ii) Intentional torts
iii) Actions outside the scope of parental role and within scope of employment
– look to the purpose.
iv) Non-parent acting in loco parentis (day care)
v) Emancipated children (declared independent)

₪ Broadbent
Facts: Mother negligently left child in pool and is being sued by husband to collect insurance.
Holding: reasons for not allowing parental suits

1. disturb domestic tranquility

2. danger of fraud
3. deplete family resources
4. could benefit parent is child dies before parents
5. interfere with family care, discipline, and control

generally applies in cases of insurance, so all these are moot or not as important as collecting for the
damages inflicted upon the child.

Key Concepts
1) Why has interspousal immunity largely disappeared while parental
immunity persists? Inter-spousal immunity was originally based upon the
fiction of the unity of marriage. That is, when a couple was married they became
on legal entity – usually the husband. This was slowly eroded when the courts
allowed suits for intentional torts between husband and wife. This exception
soon led to suits of negligence. The view of parental immunity is rooted in the
idea of children as chattel – as workers and part of a commonwealth. Immunity
was granted because the parents were given leeway in how they raised their
children as chattel and because we didn’t want the gov’t interfering into the
corporeal units of democracy. These reasons have not eroded over time.
2) What are the historical justifications for parental immunity? See above.
3) What are the different jurisdictional rules regarding parental immunity?
What are the strengths and weaknesses of each approach? There are
several approach to parental immunity 1. goller approach is limited immunity 2.
reasonable parent 3. all but the world and 4. availability of insurance.

6.6. Governmental Entities

Gov’t agent – vicarious liability, government v. proprietary,

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Gov’t liability, prop or gov’t, if prop -> private actor std, if gov’t is it discretion or
minis, if minis -> reasonable, if disctoinary -> cuffy std/blanket immunity

Qualified immunity - No reas person could have reached that conclusion

1) Began in England – “The King can do no wrong”
a) Later justified that it was misapplication of tax payer dollars/entity that give
right cannot be sued by same right.
b) Abrogated in the US due to the rise of the administrative state
2) State and Municipal Immunity
a) Proprietary v. Governmental - No immunity for governmental functions which
overlap with private business. Private analogs. Don’t want to provide an
unfair advantage – e.g. hospitals, transit systems. Duty that applies to the
private standards can apply here. Governmental “protect general public from
hazards” (police, fire dept) – provide immunity because of
i) Limited resources, Separation of powers, Legislature is free to create
solutions.
b) Direct Services - Activities that provide direct services or facilities such as
highways, public buildings. Reasonable duty applies.

c) Police Services – duty exists when

i) Police solicit the help of a private citizen for police matters which
increase his risk of harm. Creates a special relationship. Schuster.
(1) Express or implied promise of police help
(2) Justifiable reliance that leads to harm
ii) Police are given power and notice to arrest offender, e.g. protective
orders are given. Sorichetti.
iii) Cuffy Factors (added to address 911 calls)
(1) Assumption of duty by words or actions
(2) Knowledge that inaction would lead to harm
(3) Direct contact between municipal agents and victim
(a) Third party 911 communications do not create duty. Merced.
(4) Reasonable reliance by the victim on the promise

3) Discretionary v. Ministerial
a) Discretionary actions are those in which the gov’t must exercise its own
judgment. We don’t want to second guess the gov’t agencies so there is no
liability here. Conduct including reasoned judgment.

b) Ministerial duties – are those duties mandated by statute and for which the
gov’t action is merely execution of such duties. For these action we find a
reasonable person standard of negligence. Conduct adhering to a governing
rule with a compulsory result.

4) Federal Immunity
a) General Rule: if an individual could be sued for it, so can the gov’t.
b) Exemptions:
i) Postal – want to keep service cheap. Not so relevant today with other
forms of communication.
ii) Military – Don’t want to second guess military. Specific culture there.
Operate by their own courts. Everyone entering military signs waivers
and is compensated. Feres doctrine expands immunity to all military
activities, even those not in times of war (e.g. training)
iii) Treasury – inherently unpredictable and too many consequential damages.

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 iv) Strict liability & intentional – gov’t not liable
v) General Test
(1) Is it mandated by statute, policy or relgulation? If so, then immune.
(2) Discretionary v. Operational. Discretionary = planning. Operational =
execution. If there is a choice, discretionary choices in the exercise of
judgment reflecting “economic, social, and policy” considerations are
immune.
(a) Is there a choice or was it legislatively mandated?
(b) If choice, was it fraught wt “political, social, and economic”
judgment?

RULE: Proprietary and direct services are not immune for liability.
RULE: Police in general are only liable when they voluntarily assume a duty.
₪ Riss
Facts: P called upon police to protect her on two separate occasions from Xbf who threatened her.
Eventually she was scarred and blinded by the boyfriend. P sues the city for negligence for her preventable
harm.
Holding: The city owes no duty to P. Government immunity is abrogated in only certain cases of which P
does not fall into. Moreover, the court feels opening this kind of liability would be crushing on the system.
Police in general only had a duty when they voluntary assume such duty.

P should not owe a duty because it would open the police to a flood of lawsuits which would divert the
department’s funds away from their purpose. D argues that in other cases where liability was opened there
was no crushing wave of lawsuits and that allowing tort liability would make the system more efficient.

RULE: When the police solicits a private citizen in police matters that
increase his risk to harm, then the gov’t is not a passive actor and assumes
a duty to the private citizen.
₪ Schuster
Facts: P responded to FBI ad and reported a wanted felony. Several days later he was threatened by the
felon and later killed by him. P sues that the police breached their duty and cased harm.
Holding: Found that the police did owe a duty. When the police solicits a member of the general public in
police affairs that increases his risk to harm, then the police are not passive actors and assume a duty to that
private citizen.

RULE: A gov’t restraining order creates a duty for police intervention.

₪ Sorichetti
Facts: P had restraining order against husband who later beat and harmed P’s child after P repeatedly tried
to get police involved.
Holding: Found that the police did assume a duty because of the restraining order.

RULE: Police liability only when

1) Assumption of duty by the police either through words or actions
2) Knowledge that inaction would lead to harm
3) Direct contact between the police and the victims
4) Reasonable reliance by the injured parties on the police promise
₪ Cuffy
Facts: P and various family members were injured by downstairs neighbors after they repeated called the
police and were told that “something would be done next morning.”
Holding: Only those that had direct contact with the police were owed a duty of protection.

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RULE: 911 calls must be made by the victim to create a duty
₪ Merced
Facts: 3rd party called the police and found by the Cuffy factors that no duty was owed.

RULE:
₪ Lauer
Facts: P’s son died and the original report stated the cause of death as homicide. A later investigation
found that the son died of natural causes but the gov’t employee failed to change the status of the death and
the P was thus investigated for the death of his son.
Holding: Gov’t agency had no duty to P. Courts stated there was no duty because
1) No special relationship (cuffy factors)
2) No statutory duty (not for this class of persons, responsible only to an AG)
3) Second act did not enhance his risk
4) No duty to come the aid of another person

Dissent argues that the D was the only person who could know and fix such a mistake and that not
extending liability to such cases would give gov’t employees no incentive to report their mistakes.

Found that first act of incorrectly labeling cause of death was discretionary and hence immune. Second act
of late correction was ministerial and hence liable, but need to prove a duty first. No such duty was found.

RULE: For road work there is “qualified immunity.” Liable if…

1) Plainly inadequate study of risk or conditions
2) Once risk is known the gov’t must conduct studies and make changes
and keep such studies updated.
3) Once a conclusion has been made for a plan of action it must be done in
a reasonable time.

Plainly inadequate and no reasonable basis

₪ Freidman
Facts: P sues gov’t for not building a median when studies showed that it should have.
Holding:

7. Duty for Non-physical harm

1. Test for Duty

a. Parasitic harm – emotional harm that is caused by a physical harm for

which a party is negligent is automatically accepted as having a duty.
Emotional harm such as pain and mental suffering, reasonable fear, and
mental trauma from scarring.

b. Intentional emotional harm – don’t need to prove it if the infliction of

emotional harm was blatant and willful, e.g. “committing suicide in the
kitchen.”

c. Requirement for Physical harm - Court found that one must have
some physical manifestation of harm. Can’t just be “oh, I am hurt and

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 sad.” Some manifestation are insomnia, headaches, etc. But can’t be
common things like vomiting.

This was necessary as a bright line rule to avoid massive fraudulent

claims. However, in some jurisdictions a physical manifestation is not
required when it is obvious from the situation that there was harm and
that such harm can be clinically verified or guaranteed to manifest in the
future.

d. Impact test
Old way of determining when a duty was owed. Was later abolished for
being antiquated and riddled with exceptions that made no sense. Still
used in some jurisdictions.

Justified on the claims that emotional harm is not normally the

consequence of non physical impact.
ELEMENTS
i. At risk of physical harm
ii. Fear of that harm
iii. Any slight touching of impact by that risk
iv. Exceptions
1. when you are emotionally harmed when trying to avoid a
risk, e.g. leaping away from a falling log
2. the touching can be dust and not actually harmful

e. Zone of Danger (direct)

Established to replace the old impact rule and be closer but not quite a
reasonability rule. Found that the fear of an immediate risk was a good
cut off point for liability. Falzone.
ELEMENTS
i. When you have an immediate risk of harm
ii. Reasonable fear of that harm
iii. Suffer severe emotional distress with physical harm

f. Reasonability
Eventually even the zone of danger was rejected as too arbitrary a rule.
Cases occurred when there was direct emotional harm with no risk involved,
e.g. sending you a severed leg.

ELEMENTS
1. Duty when you do not meet the general duties of a reasonable person.
2. when you cause foreseeable psychic harm.

g. Special Circumstances
The courts also found that there were just some specific cases in which duty
was implied from the circumstances
1. Mishandling of corpses
2. sending letters telling you of family death/HIV
3. botched funerals

h. Bystander Liability
The court also found cases of psychic harm in seeing others get hurt. Usually
this is applied to parent/child situations.

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 1. Zone of Danger (bystander)
Courts reasoned that to limit the craziness that would be unlimited
bystander liability one must also be in the zone of danger that caused the
injury.

ELEMENTS
a. At risk of severe physical harm
b. Reasonable fear of the harm
c. Severe mental distress
d. Close relation

2. Dillion - CA
a. P must be located near the scene
b. sensory and contemporaneous impact of injury
c. closely related
3. Portee - NJ
a. risk of death or serious physical injury to the other party
b. must have seen the accident contemporaneously – not be told by others
c. must be an intimate familial or martial relationship – can’t just be a friend
d. result in extreme emotional distress

4. Reasonable person test

i. Harms to property/pets
In some states with “reasonable” test, such claims can be made.

7.1. Direct Emotional Harm

RULE: where negligent produces a reasonable fear of immediate personal

injury and which fright is demonstrated to have caused substantial physical
harm or sickness the injured party is entitled to recovery. – applied to
crashing airplane rules and also for survivorship suits.

RULE: ZONE OF DANGER –

1. when you have “immediate” risk of injury
2. reasonable fear
3. severe emotional distress

RULE: Impact rule still exists in some jurisdictions, FLA.

₪ Falzone v. Busch
Facts: P was at risk of harm and saw her husband injured and sues for emotional distress from that
experience in which she was at risk and suffered physical harm later but for which there was no physical
impact.
Holding:
Arguments for the physical touching requirement
1. emotional distress is not normally a consequence of fright and the negligent act
2. public policy – it would open up a flood gate of litigation

rebuttals
1. question for medical science, not courts and science seems to say that it can be caused
2. difficulty in proving causation exists in physical and mental injury.

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 3. Exceptions have made this rule useless and arbitrary
a. You can be awarded damages when trying to avoid the harm – e.g. running to dodge a
falling brick even when the damage was not caused by the act of avoiding
b. It was found that “touching” can be something as small as dust inflicting almost no
physical harm.

RULE: Must have some physical manifestation of physical harm to recover

for negligent infliction of emotional distress
₪ Metro North
Facts: P was exposed to asbestos and suffers emotional distress from his exposure to the carcinogen. He
sues for emotional distress even though he has not developed cancer. Court applies the ZONE OF
DANGER test.
Holding:
BUCKLEY court says wait until u actually get cancer to sue.
POTTER court says you can sue if you can establish for high probability that you will get cancer.

RULE: A reasonability/foreseeability test can apply to determine when an

duty is owed.

RULE: Special circumstances

1. mishandling of corpse
2. botched funerals
3. letters stating death/HIV
₪ Gammon
Facts: P was sent a severed leg in a bag he was told would carry the personal remains of his father. Trial
court found that this case did not fit into the normal categories in which a duty was owed – impact, zone of
danger or the special cases (e.g. this was not his father’s corpse). Court said instead that the reasonable
person test should apply.
Holding:

7.2. Indirect Emotional Harm

RULE: Dillon/Portee rules

₪ Portee
Facts: P watched her son die horribly in an elevator accident. The moaning and slow death of her seven
year old child produced extreme emotional distress which led to harm for which she is suing.

Courts said that in general emotional harm caused by the death or harm of an intimate family member is the
type of emotional distress that the law will protect.

Rule for Bystander Liability:

Dillon Portee
1. P must be located near the scene 1. risk of death or serious physical injury to the
2. sensory and contemporaneous impact of other party
injury 2. must have seen the accident
3. closely related contemporaneously – not be told by others
3. must be an intimate familial or martial

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 relationship – can’t just be a friend
4. result in extreme emotional distress

Court importee said 1 and 2 of Dillion was the same was #1 of their construction.

Barhnhill – saw mother get hit by car.

Ochoa – seen the accident “not immediate consequences.” Intimate familial – “same household, parents,
siblings, children, grandparents, etc.” Extreme distress - “beyond that of a disinterested witness”

ZONE OF DANGER (bystander liability) – extends the existing framework to 3rd parties.
Marzoft – “don’t have to see it if u see them after their condition has not changed.”

Closely related/marital – Dunphy case had finance and live in couple sue for emotional distress. Court
found that a bright line rule was not the best way and that the court needed to look into the intimacy of the
relationship. The court argued for a bright line rule on the basis of
1. rooted in the necessity of providing an institutional basis for defining fundamental relational rights
and responsibilities.
2. otherwise it would be too difficult for the courts to define who was “intimately close”
3. limit the number of persons that could claim relief to a controllable degree.

Holding:

RULE:
₪ Jamaica Hospital
Facts: P’s baby was lost for 4 months. Hospital eventually found her. P sues for bystander liability.
Holding: Rejected because no duty was found for the parents. They were not in the “zone of danger” nor
did they witness any harm to the child nor does such occurrence fall within any exception.

7.3. Pure Economic Harms

1) Parasitic
2) Special Relationship
a) E.g. contractual and negligent misrepresentation
3) Private action for public nuisance (tragedy of the commons)
a) No one owes the sea
4) Separation of Ownership and Use
a) Split jurisdictions
i) Moran has a loss in terms of property damage
ii) Meanwhile I have loss of use

iii) Robbins dry dock -

No duty to lessee
5) Particular foreseeability
a) D knew or has reason to know that P would suffer economic loss
b) P were a limited and identifiable class of a foreseeable type
c) P’s presence was predicted
d) D was able to anticipate the time and loss.
e) Damages: lost profits + fixed costs – gain from invested variable costs.

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RULE:
₪ Nycal v. KPMG
Facts: P relied upon report from D in purchasing a controlling share of a company that later went bankrupt
– causing their shares to become worthless. P sues D for negligent misrepresentation.

D did not know of the transaction between P and the acquired company until several days before deal.
Holding: The question at hand is whether or not the accountant owes a duty to the company that relied
upon their reports.

Privity Modified foreseeability

In actual contractual privity Reasonably foreseeable + you
get the information from the
client

Foreseeability test Near privity test R 552 Torts

This test holds the accountant
liable for any damage caused to
parties which the accountant
could foresee relying upon their
report.
This is generally disfavored as
“exposing accountant to a
liability in an indeterminate
amount for an indeterminate
time to an indeterminate class.”
Limits an accountant’s liability
to those he is in privity with or
near privity with.
 Everything in 522 + some
direct link between the P
and the party that provided
the information
He can be liable when
 a limited identifiable class
 have to be aware of the use
for a particular purpose
 D knew P intended to rely
 justifiable detrimental
reliance

Court sticks with 552 -

RULE:
₪ People Express Airline
Facts: P sues for disruption to business from a false chemical spill scare.
Holding: found extra duty of particular foreseeability

Damage costs = fixed costs + lost profits – money gained from reinvesting variable costs.

1) Why are courts reluctant to award damages for pure economic loss?
Want to add restrictions on recognizing duty because economic harm, like mental
distress, is not naturally self limiting and hence could lead to mass litigation.

2) What are the different jurisdictional rules regarding the scope of the
defendant’s duty to avoid negligent infliction of pure economic loss?
Public nuisance, special relationship, and separation of use and ownership. And
now

3) How does tort interact with contract in evaluating whether to recognize

a cause of action for pure economic loss?

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 7.4. Wrongful death/life/birth
1) Wrongful birth
a) No Recovery
b) Limited Recovery: only direct costs of birth
i) Pecuniary – medical costs of birth, lost wages, and cost of new surgery.
ii) Non pecuniary – loss of consortium, pain and suffering.

c) Full Recovery: includes costs of raising children

i) Offset: we consider any pecuniary and non pecuniary benefits that the
child may bring and offset that. Typically no crossing of
emotional/fiduciary harm.
ii) Not offset – get full damage costs.

d) Child wt congenital defects

i) Usually can get costs beyond normal child in limited recovery.

2) Relation to Contracts
a) Limited Recovery -> reliance
b) Full recover -> expectation

8. Causation

8.1. Loss of Chance

This is a new approach to medical malpractice problems that provides additional

suits. This applies to people already in very bad conditions.

1) Traditional recovery
a) Procedural – must show more likely than not D caused harm
b) Substantive – get 100% of damages
2) Loss of original chance
a) Procedural – must show D’s negligence more like than not caused 51%+ loss
of original chance
b) Substantive – then collect for the original chance * total damages
c) Req: actual physical harm
3) Reduction in Chance
a) Procedural – must show D’s negligence more like than not caused reduction in
chance
b) Substantive – get reduction * total harm
c) Req: actual physical harm
4) Considerations
a) Leads to gaming around the middle
b) Does it meet our goals of deterrence, compensation, and moral fairness

8.2. Cause in fact

In General
1) Probable than not the D was the but not/for cause of harm

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2) Reasonable certainty – when there are multiple causes and irreducible
certainty
3) Substantial factor

RULE:
₪ Stubbs
Facts: P got typhoid fever and suffered damages from his illness. At this time the city had negligently
released sewage into the drinking supply. P sues the city saying they caused his illness and damages. City
was liable because of K or direct services. City claims there are many ways to contract typhoid fever and
that these other causes were not eliminated. Court found the “more probable than not” standard unreliable
and changed to “reasonable certainty”
Holding:

Joint and Several Liability (damages)

1) Several – divisible damages
2) Joint and Several
a) Parties acted with a unified purpose. Even if damages are divisible,
treated as indivisible.
b) Damages concur (rather than sequentially) to produce an indivisible injury.

c) Insolvency – if one party is insolvent, the other party carries all of the cost.
Can seek contribution.

d) Approaches

e) Traditional – divide cost by the number of parties (regardless of 2% and

98% liable).

f) Comparative Fault – divide “several” costs by the percentage of fault.

Still jointly liable if one party is insolvent.

g) Abolish joint liability when one party owes >50%. If you owe 20%
and the other 50% if he goes insolvent u still pay 20%. If you go
insolvent, he pays 70%.

h) CA approach – pecuniary damages are several and joint, non pecuniary

are several.

3) Multiple parties, single injury, unidentifiable cause

a) When both parties are negligent the burden shifts
i) Parties are jointly and severally liable.
ii) Policy
(1) Deterrence – without you get under deterrence. With you may
punish innocent parties. But they were negligent, so OK. Because
jointly liable, may over deter.
iii) Guarantees compensation, production of evidence. May by morally unfair
if guilty party is insolvent.
b) When there is one innocent and one negligent party
i) No shifting of burden. Would force innocent party to produce evidence.
Over deterrence and not morally fair. Under compensation. With joint
liability innocent party could pay for all damages.

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 c) One party with one negligent one innocent acts
i) Shifts the burden as long as the negligent act was a “substantial factor.”
ii) Less a problem or moral fairness bc of singular actor. Supports
compensation and deterrence.

4) Market Share liability

a) Numerous actors, Fungible goods
b) Determining market
i) National Approach
(1) Most efficient – lost data
(2) Purely ex ante risk creation, abandons ex post harm and blame
(3) Reflects mobility of people
ii) Local Approach
(1) State, city, local pharmacy
c) Damages
i) Several – NY approach
ii) Joint and several
iii) Proportional Joint and several – if originally 15% of market for which only
85% remains today, then owe 15/84 percent.

5) Enterprise liability
a) Small number of defendants
b) Uniform body of standards
c) E.g. six blasting cap manufacturers abiding by the same safety guidelines.

RULE:
₪ Summers v. Tice
Facts: two negligent parties, one injury. Not joint and several because not concerted action and not
concurrent (only one injury). Shifted burden to other parties – promotes compensation. Defaults to joint
and several liability. Deterrence is served – under deter if none, may over deter if insolvent, but both are
negligent.
Holding:

RULE:
₪ Hymowitz
Facts: DES Case. Found that alternative liability did not apply because of the number of parties and the
inability to call all of them. With so many D’s there is very little chance for them to produce more
evidence. Concerted action doesn’t apply because they were just following a market.

Imposed Market Share liability. National standard was chosen for efficiency reasons. Would even out over
the long run. Won’t allow even those cases that can prove they were not culpable. Found only several
liability.

Dissent claims parties should be able to exonerate themselves if they can produce the evidence. Proposes
that the liability is joint and several.
Holding:

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 8.3. Proximate Cause
Extent of Harm
1) No limit on the extent of physical harm
2) Eggshell plaintiff – even if damages exceed that could be expected, D finds
victim as encountered – you find strong/weak victims. Balances out.
a) Deterrence – maybe under deterring people wt disease, over deterring normal
people. Many people do not know they have latent weaknesses.
b) Compensation – does compensate victim.
c) Moral fairness – seems morally unfair because damages were unforeseeable.
But court takes consequentialist argument – when you are negligent you take
the chance.
3) Precipitating Factor (emotional harms)
a) Liable for the exacerbation of the condition (not full disability)
b) Mental harms only for exacerbation because you put yourself there and
because harder to measure
4) Exacerbation of harms due to 3rd parties
a) Medical malpractice – justified because claimed that such situations are
foreseeable.
Type of Harm
1) Direct Cause – Polemis
a) Ex post construction
b) Responsible for all direct consequence (time and space)
2) Foreseeability – only responsible for reasonably foreseeable damages. Can’t be
punished for things a reasonable person would not be wary of.
3) Remotely foreseeable – responsible for any result which was remotely
foreseeable – e.g. welding and small chance that oil would catch on fire.

RULE: Proximate cause found for all direct causation within time/space
₪ Polemis
Facts: Dropped tool into holding area which set off huge fire that no one could foresee. Found that you
are liable for all damages that you directly cause (judged by time/space separation of act/result).
Holding:

RULE: Only liable for reasonably foreseeable types of harms.

RULE: Liable for remotely foreseeable harms.
₪ Wagon Mound 1 & 2
Facts: Random spark caused huge fire that burned up a bunch of ships/docks/shit. Found that Polemis was
incongruent with the general standards of reasonable legal thinking. Said only responsible for foreseeable
types of damages (not extent).

The dock workers were found liable because they saw the risk that continued welding would have and thus
were contributorily negligent.
Holding:

RULE:
₪ Smith v. Leech
Facts: D caused P to burn his lip with cancerous material. Soon cancer did not heal and lead to death. P
claims that WM1 mitigated his damages to foreseeable types of harm (burns) and not cancer – hence going
against eggshell plaintiff. Court found cancer was actually part of the original physical harm – hence
allowed collection.

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Holding:

Unexpected Manner of Harm

1) Intervening act
a) Highly culpable (greater than negligence) AND
b) Unforeseeable
2) Policy Justifications
a) Deterrence – still deters all parties because original negligent party knows
they are lucky to get off the hook.
b) Compensation – not so fair, because party is not able to collect from all
parties. MSA is a deeper pocket
c) Moral Fairness -

RULE:
₪ McLaughlin v. MSA
Facts: D negligently made heating pads that caused burns. P sues for burns but D defends claiming that
there was an intervening cause which negates their liability. Courts found that if there is a morally culpable
act that is unforeseeable (e.g. grossly negligent, anything > negligence) AND an unforeseeable act, then
you have an intervening superceeding cause that make it so that you are not culpable even tho you would be
if that act had not otherwise occurred and the damage would have occurred even without the intervening
event.
Holding:

Unexpected Victim
1) Majority – Negligence is tied with duty – if you don’t already owe a duty you
cannot be found negligent in respect to that party and owe damages.

2) Minority – you own a duty to ht epublic at large not to be negligent in your

actions. When your negligence causes harm you are responsible for them.
RULE:
₪ Palsgraf
Facts: D negligently pushed passenger into train who dropped a non-descript package containing fireworks
that went off. The acoustics caused tiles to fall from the ceiling that injured P. D claims no duty. Majority
finds no negligence without established duty (no duty to P).
Holding:

9. Defenses

9.1. Contributory and comparative negligence

1) Contributory Negligence
a) Mirrors that of normal negligence – assumes an individual has a duty to
protect themselves and exercise reasonable care. Must show but/for and
proximate cause.
b) Traditional Approach – full defense

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 i) Burden on D v. P
ii) D only has to show one negligent act. P needs to show all acts were
reasonable.
c) Modern Limitations
i) Show P was more negligent – If P was negligent and D was grossly
negligent, then no defense.
ii) Last Clear Chance
(1) Helpless – P negligently puts themselves in a situation where they are
helpless to protect themselves. D who knows or should know needs to
avoid it. E.g. can’t run into negligently released cow.
(2) Oblivious Peril – P was oblivious to their danger they negligently put
themselves into. If P is aware, has duty to avoid.
iii) Refuse to impute contributory negligence defense
iv) Interpret statute to disallow contributory negligence as defense
v) Sending to jury – just often refuses to give complete defense even if
contributory negligence. They usually just lower the award.
2) Comparative Negligence
a) Pure – D’s damages = D’s fault % x damages
i) Proportional Joint and several liability if a party is insolvent
b) Modified 1 (no greater than, P <= D): P – 15%, D1 – 10%, D2 – 75%
i) Aggregate – can’t get any one
ii) Non-aggregate – can get from D1
c) Modified 2 (not as great as, P < D)
i) Also aggregate/non aggregate distinctions
3) Settlements
a) Uniform Comparative Fault Act – deduct the settled party’s percentage of
fault regardless of settlement amount.
b) Pro tanto – deduct settlement amount as percentage, regardless of actual
fault.
c) Whichever is greater – settlement or fault
d) Whichever is less – settlement or fault

9.2. Avoidable Consequences

1) Avoidable consequences
a) Duty to mitigate harms, e.g. must get blood transfusion
b) No duty if mitigation incurs risk – e.g. invasive surgery
2) Anticipatory Avoidable accidents
a) Require preventative actions – seat belts

9.3. Assumption of Risk

1) Express – contractual exculpation of duty – “no fault” agreement

a) Was it a clear contract?
b) Does it violate public policy? Tunkl factors
i) Concerns a business normally thought of as safe for the public
ii) Performs a service tantamount to a public necessity

2) Implied

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 a) Primary – no breach of duty. when you know or should of known of a non
negligent risk you cannot sue for that risk if you voluntarily engage in that
behavior.
i) Fair notice – if party was aware or should have been aware (actual,
constructive, common knowledge).
ii) Non negligent operation – if there was no negligence.
b) Secondary – breach of duty but P failed to exercise due care (similar to
contributory negligence).
i) Comparative fault
(1) Bar all recovery
(2) Reduce damages by percentage of fault (if exceeds the min. threshold)
ii) Reasonable v. Unreasonable – many courts say unreasonable
assumption of risk is a total bar. But reasonable assumption of risk is not
a bar. Might be reasonable in scope of employment to take risks – can’t
bargain for premium wages if can’t sue and reasonable dangers aren’t
recognized.

RULE:
₪ Dalury
Facts: P’s rescinded their right to sue D in a contract. Courts found that the contract to be clear in its
terms, but rejected them on public policy considerations. The Tunkl factors were important to the court’s
decision but a “totality of the circumstances” test was applied and it found that for such a public and highly
trafficked venue such contracts and waivers of risk were contrary to public policy.
Holding:

RULE:
₪ “Flopper” case
Facts: P was stupid and got on a ride called the Flopper where the foreseeable risk was that of flopping and
falling down. P indeed then fell down and tried to due. Court rejected his claim on the basis that he knew
or should have known from the name of the ride and from witnessing others what the inherent risks where.
Thus if the specific type of harm is foreseeable without negligence and you still conduct such an action you
cannot sue.
Holding:

RULE:
₪
Facts:
Holding:

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