Torts Overview

1. Intentional Torts
a. Battery—protects body
b. Assault—protects mind
c. False Imprisonment—protects freedom to move
d. Trespass—protects property
e. Intentional Infliction of Emotional Distress—protects emotional state.
2. Negligence
3. Strict Liability

Battery
Elements of Battery
1. Intent: refers to either a person's desire that certain consequences result from his actions, or (even if he doesn't intend
those results), his knowledge that those results are substantially certain to occur as a result of his actions.
a. Purpose Intent: desire to bring about a legally forbidden consequence.
b. Knowledge Intent: act knowing that a legally forbidden consequence is substantially likely to occur (99% likelihood)
c. Transferred Intent: if the defendant desires to produce a forbidden consequence to any human, the law says you
can act intentionally even if you create a different consequence or harm to a different human being.
i. Intent can transfer from one person to another. (A meant to hit B but accidentally hit C instead. So A is
liable for hitting C as if he intended to hit him).
1. Mistake of identity is not a defense in this case. So if you intend to do something to one person
but mistakenly do it to someone else instead, you are still liable.
ii. Intent can transfer from one tort to another (A could have intended assault but accidently committed
battery instead. It will be as if A intended the battery).

*** The purpose, knowledge, and transferred intent apply mainly to just assault and battery, but could also apply to FI and IIED (less
likely to see these two deal with types of intent on an exam).
***Recklessness only goes with IIED.
****Purpose intent deals with property because intent with trespass is a bit different.

2. Harmful or Offensive Touching

a. Touching must be unpermitted to the person of ordinary sensitivity. There is an objective, average, reasonable
person standard here.
b. A plaintiff’s hypersensitivities are not to be taken into account unless the defendant knew of them in advance.
c. Indirect harm counts. If the defendant sets into a motion a series of events that causes the plaintiff’s harm, that
could be enough. However, the more indirect the conduct, the higher the bar becomes for finding the conduct to
be harmful or offensive.
3. With the Plaintiff’s Person
a. Could be the person OR an extension of the person. It could be a person’s cane or a support animal—could be
something the person is holding.
4. Causation
5. Damage
Supplemental Notes
• For people with reduced mental capacity, sometimes the lack of intent is what allows them to escape liability.
o Example: if someone with Alzheimer’s lies to someone, they are not liable because they did not intend to lie.
• Horseplay/practical still counts for battery because the defendant still intended to harmfully/offensively touch, even if the
scope of the harm was broader than they expected.
o An exception would be if the plaintiff and defendant were both actively participating/playing a game, probably
because there was implied consent.

Assault
Elements of Assault
1. Intent
a. Purpose
b. Knowledge
c. Transferred
2. Place someone in reasonable apprehension
a. Apprehension meaning knowledge, perception, or realization. Apprehension is not necessarily fear.
3. Of an Immediate Battery
a. Future harm doesn’t count.
4. Causation
5. Damages

Things to Know about Assault

1. Mere words do not count. You need an overt act.
2. Conditional threats typically don’t count (“If you do this, I’ll hit you…”)
a. Conditional threats could still count if it’s something immediate. (Holding a gun to someone and saying that you
will shoot if they don’t give you their money).
3. Civil assault vs. Criminal Assault
a. In Criminal law, assault is an attempted but uncompleted battery. It doesn’t matter what the victim apprehended.
Focuses more on the intent of the perpetrator.
b. In Torts, we care about the apprehension of the victim/plaintiff.
4. You can have battery without assault and vice versa.
a. Battery without assault: kicking someone who is asleep. They aren’t conscious to be aware of the imminent threat
just before it happened.
b. Assault without battery: you throw a rock at someone and miss. There’s no battery without contact, but the victim
apprehended the threat of the rock.

False Imprisonment
Elements of False Imprisonment
1. Intent (this is different from intent in Assault and Battery)
2. An act of Restraint
3. That confines the plaintiff to a bounded area
4. Causation
5. Damages
a. Damages can be just awareness of the harm. Doesn’t necessarily have to cause physical injury.
Unique Things about False Imprisonment
1. Total confinement is required.
2. Plaintiff has to have conscious awareness of the confinement.
3. Intent is the intent to confine someone. No physical force is required, and the threat of force suffices.
a. Don’t forget transferred intent. If you intend a battery and shove someone into a room that locks automatically,
that could become F.I.
4. Can occur when you have the duty to help someone move around but don’t act on it.
a. Example: if you take someone out on a boat and then refuse to take them back to land—since you took them out
on the water, you are obligated to bring them back.
5. Bounded area—there’s no false imprisonment if you’re kept OUT of a place. That’s the opposite.
6. If there is a reasonable way out of confinement, there is no F.I. You must be aware of the way out though.
a. If a solution/escape puts you in some sort of extraordinary circumstance, it’s probably not a reasonable way out.
b. Example: If someone is naked and you take their clothes away, that can be a form of confinement because “it
would be offensive to a reasonable person’s sense of dignity to be forced to be naked in front of others.”
7. Shopkeeper’s privilege: protects stores. A temporary restraint in a reasonable manner for a good reason is okay.
8. Citizen’s arrest might also be a defense to F.I. if you detain someone you reasonably believe has committed a crime.
9. A trespass to chattels that prevents someone from leaving an area could result in F.I. because of transferred intent.

Supplement Notes
• Some jurisdictions have found that taking someone’s personal property and creating a situation where they refuse to leave
without their property could create F.I. But this would be in extreme circumstances, like taking someone’s car.
• Threat of force: if plaintiff submits to defendant’s request to stay somewhere and there is no threat of force, then that is
not F.I.

Trespass
Types of Trespass
1. Trespass to land—real property
2. Trespass to Chattels—personal property
a. Dispossession
b. Intermeddling
3. Conversion—personal property

Elements of Trespass to Land

1. Intent: intent to be on the land is enough; there does not have to be an intent to trespass.
a. Can be charged nominal damages even if the defendant innocently believes the land was his, etc. Almost S.L. in
nature.
2. An act of physical invasion by defendant
a. Can be on foot, in a vehicle, or even the propelling of an object
b. Intangible things like smells do not count.
3. Onto land possessed by plaintiff
a. Air above counts, underground counts, but only to the extent that the plaintiff could make reasonable use of the
land. You can’t sue an airplane for flying at the height they normally fly because you can’t get up there anyway.
4. Causation
5. Damages
 Things to Know about Trespass to Land
1. A mistake of fact is not an excuse for trespassing.
2. Requires voluntary movement. If someone pushes you onto someone else’s land, it doesn’t count as trespass because you
didn’t intend to be there.
3. If you are somewhere with permission but that permission expires, you are now trespassing.
4. A plaintiff can always recover in trespass, even if the damages are nominal.
5. Common carriers cannot exclude members of the public even if they own the land.

Elements of Trespass to Chattels or Conversion

1. Intent
2. Deliberate damage or theft
3. To items of personal property
4. Causation
5. Damages
• Difference Between Trespass to Chattels and Conversion: damage is small in trespass to chattels; court awards repair costs.
In conversion, the damage is great/significant; court awards fair market value of item.
• Making a mistake is not a defense to the tort of conversion of chattel. An actor may be liable for conversion of chattel even
though the actor sincerely (but mistakenly) thinks that he or she had rightful possession of the chattel, if the actor
intentionally exercised control in a manner that actually violated the victim’s rights in the chattel.
• One cannot commit conversion if they have rightful possession of the chattel. So if you borrow something with permission
and negligently damage it, that’s not conversion because you did not unlawfully take it; however, there might be a case for
negligence.

Supplement Notes
Things to Consider when distinguishing between trespass to chattels and conversion:
1. The extent and duration of the actor’s dominion/control.
2. The actor’s intent to assert a right in fact inconsistent with the other’s right of control.
3. The actor’s good faith.
4. The extent and duration of the resulting interference with the other’s right of control.
5. The harm done
6. The inconvenience and expense caused to the other.

Intentional Infliction of Emotional Distress

Elements of IIED
1. Intent or recklessness
2. Outrageous conduct by the defendant
a. Exceeds all bounds of decency in civilized society; objective
b. Conduct can be more extreme and outrageous than it would be otherwise if
i. Defendant knows plaintiff is in a class of persons known to be more sensitive (children, elderly, mentally
infirm, pregnant women)
ii. Defendant knows the plaintiff has heightened sensitives
iii. Defendant is a common carrier treating a patron in this way.
3. Severe Emotional Distress to plaintiff; subjective
4. Causation
5. Damages
 Things to Know About IIED
1. No physical contact.
2. No threat of contact.
3. No confinement.
4. There is mental suffering.
5. If there is another tort present, like battery, the victim can sue for the primary tort and then tack on the emotional distress
as extra damages (i.e., parasitic damages) without having to satisfy all the elements of a separate IIED claim. HOWEVER,
IIED is often brought separately in prolonged cases of domestic abuse.
6. If defendant harms a third party knowing that the plaintiff is watching, this can constitute IIED if 1) the plaintiff is a family
member to the victim or 2) the plaintiff suffers physical ED symptoms consequently.

Affirmative Defenses
1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Necessity

*Note that incapacity is NOT a defense. It does not matter if you are drunk, mentally ill, or a child. You are still liable.

Consent
1. Express: words used to consent.
a. Doesn’t count if there is fraud, duress, or the transmission of sexual diseases.
2. Implied: consent through custom, usage, or routine customary activity. This could be the defendant’s reasonable
interpretation of plaintiff’s conduct.
a. implied-in-fact consent occurs if the actor justifiably infers the victim’s consent given the victim’s actions, like if the
victim voluntarily participates in a sport that involves physical contact.
b. Implied in law consent occurs during emergencies or when the actor has reason to believe that the victim would
have consented if given the opportunity.

Things to Know About Consent

1. You must have the capacity to consent.
a. Cannot be intoxicated, mentally ill, or a child.
2. You cannot consent to something the legislature does not allow.
3. Consent can be revoked, and it has a scope.
4. Consent achieved by fraud that causes the plaintiff to mistake the nature of what they are consenting to does not count.
5. Misrepresentation or Mistake as to a Collateral Matter: it won’t make a difference if a non-important matter is mistaken by
the plaintiff when he consents to something; his consent will still bar a claim of the intentional tort.
a. Example: Martin v. Carbide… plaintiff sued a doctor for assault and battery when the plaintiff consented to an
exam and later found out the doctor wasn’t licensed in that state. The plaintiff’s consent wasn’t affected by the
lack of license.

Things to Know about Self-Defense and Defense of Others

1. The harm must be imminent or in progress. These actions of defense take place “in the heat of the moment.”
o Example: if a person is struck with a rock intentionally thrown and then the assailant runs away, the person cannot
chase the assailant down and hit him; the threat was no longer imminent when he ran away, and retaliation does
not count.
2. Defendant must have a reasonable belief that there is a genuine threat.
 o There is a subjective and objective requirement. The defendant must subjectively believe defense was needed to
repel an attack, but the defendant’s conduct is also viewed from the perspective of the reasonable person in the
same situation as the defendant.
1. Example: knowledge possessed by the defendant of the plaintiff’s violent propensities is part of the
objective circumstances when determining whether the defendant’s self-defense was reasonable.
o If you are mistaken in your belief, that’s okay.
o Verbal provocation is not a genuine threat. The words would need to be accompanied by some sort of hostile act.
3. The responsive force must be reasonable and proportionate.
o May use deadly force only if there is a reasonable belief that the threatening force would cause serious bodily
injury or death.
4. Duty to retreat
o Minority view/Restatement view: there is a duty to retreat before using deadly force.
o Majority view: there is NO duty to retreat before using deadly force.
o There is never a duty to retreat in your own home.

Supplement Note: for defense of others, it is as if the defendant is stepping into the shoes of the person they’re trying to protect. If
that person needing protection would not qualify for the self-defense privilege, then the defendant likely would not either.
Example: Person A is walking down the street and sees B and C fighting. A thinks that B needs help and jumps into defend
him by striking C. The truth is that A was the initial aggressor who B was defending himself from. Since self-defense was not
available to the initial aggressor, A may not be able to claim defense of others for his actions and might be liable to C for
battery, etc. Some jurisdictions, however, protect defendants who make a REASONABLE mistake as to who the aggressor
is.

Things to Know about Defense of Property

1. You can never use deadly force to protect property because we value human lives more than we value property.
a. This means you can’t set deadly traps.
b. If a trespasser comes peacefully, the property owner is expected to request them to leave before using force.
c. If a trespasser enters with force, the property owner may immediately use reasonable force without asking him to
leave first. But it still must be short of deadly force.
2. Merchants can briefly detain someone under shopkeeper’s privilege.
3. Supplement Note: When it comes to taking back chattel, you need to do so within a reasonable amount of time and use
only a reasonable amount of force. You need to be in “hot pursuit” of your property to use reasonable force. Once you are
not in hot pursuit, you don’t have the same right to use reasonable force to take it back. ALSO, you cannot be mistaken in
the thief. Even if your mistake is reasonable, you are not privileged to take property from someone if they are not the
person who stole it from you.

Necessity
Can only be used for trespass to land, trespass to chattels, and conversion. The idea is that, if you can prevent serious harm by
trespassing or interfering with property, you should be able to do so because that trespass/interference is likely less damaging than
the harm is.
1. Public Necessity
a. Defendant invades property during an emergency.
i. Example: Historically, a police officer who damages someone’s property during the chase of a felon was
not liable and not required to compensate innocent plaintiff for damage.
b. He does so to benefit the community or to avert public danger.
c. This is an absolute defense, so there is no liability.
d. Quimbee suggests, however, that a plaintiff could still recover for unnecessary damages that go beyond the scope.
2. Private Necessity
a. Defendant invades property to protect his own personal interest or the interest of just a few people.
b. Defendant has to pay for the actual harm to the property.
c. No nominal nor punitive damages allowed.
 d. Defendant cannot be expelled from property. If the plaintiff does expel the defendant and the defendant suffers
harm, then the plaintiff has to pay those damages.
e. Supplement Note: it sounds like this issue is weighed on a case by case basis. Whether someone can claim the
private necessity defense depends on how dangerous the situation was, if they had other reasonable options for
safety, etc.

Negligence
Definition
Negligence is conduct (an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care
imposed by law to protect others against unreasonable risk of harm. To be guilty of negligence, the defendant must:
1) Fail to exercise care that a reasonable person in his position would exercise and
2) Act in a way that breaches the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position, and the
breach must be the cause of the plaintiff’s injuries.

Elements
1. Duty: obligation to protect another against unreasonable risk of injury
a. To whom do you owe a duty?
b. How much care do you have to take?
2. Breach: failure to meet that obligation.
3. Causation: causal connection between action and injury
a. Actual
b. Proximate
4. Damages: the loss suffered

Duty
Standard of Care
• How much duty is owed? --- this focuses more on the defendant’s characteristics themselves.
o A reasonable amount. The amount of duty that a reasonably prudent person would give under similar
circumstances. RPP +SC. This is an objective standard. It’s not what the average person does or what anyone
actually does for that matter. It’s what people ought to do—it’s a construct.
o Supplement Note: the reasonably prudent person does not attempt to avoid risks that cannot be identified nor
foreseen, so the reasonably prudent person only exercises due care with respect to the risks that are foreseeable
to the reasonable person and risks that are sufficiently significant to require some measure of precaution.
o Variations of this Standard:
1. Mental inability: same standard as people without mental inabilities (RPP+SC)
o This seems unfair, but you have to hold everyone to the same standard to keep everyone safe. Creasy
outlines public policy reasons for the same standard:
a. It allocates losses between two innocent parties to the one who caused or occasioned
the loss
b. Provides incentive to those responsible for people with disabilities and interested in
their estates to prevent harm and “restrain” those who are potentially dangerous.
c. Removes inducements for alleged tortfeasors to fake a mental disability in order to
escape liability.
d. Avoids administrative problems for courts attempting to identify and assess significance
of disability.
 e. Forces persons with disabilities to pay for the damage they do if they are to live in the
world
2. Physical inability: the reasonably prudent person with the same inability under similar circumstances.
o This is a slightly lower standard. To put it another way: the bar to find negligence here is a bit
higher.
o For example, for a blind person: the reasonably prudent blind person under similar circumstances.
o This is different from mental inability because a physical inability is easier to see.
o Voluntary intoxication note: someone who is impaired because they voluntarily or negligently
ingested liquor/drugs is held to the same standard as someone who was NOT intoxicated.
3. Superior Ability: the reasonably prudent person with superior skills/knowledge/experience/expertise
under similar circumstances.
o This is a slightly higher standard. To put it another way: the bar to find negligence is a bit lower.
o Notice that this gets more specific. Here, you would take into account the skills, knowledge,
expertise, and experience, so you end up considering more of the person’s attributes.
4. Emergencies: the reasonably prudent person under similar circumstances…USUALLY. States are split.
o Some jurisdictions lower the standard in emergency cases. As long as the person confronted with
an emergency did not demonstrate antecedent negligence, they aren’t held to RPP+SC
o Most jurisdictions don’t have a different standard for emergencies because the emergency is
factored into the circumstances.
5. Children: the standard of a child of similar age, experience, and intelligence under similar circumstances
(AEI+SC). All of a child’s attributes will always be counted.
o This is subjective (smart children are held to a higher standard than their less smart peers; older
children are held to a slightly higher standard than younger children, etc.)
o This is a lower standard than that of adults.
o The exception is a child engaging in adult activities (for example, operating a motorized vehicle).
6. Extraordinarily dangerous activities: RPP+SC
o Danger is factored into the circumstances.
7. Common carriers: higher standard but differs among jurisdictions
8. Professionals – see below.
9. Landowners – see below.
• To whom is this duty owed? ---this focuses more on the relationship between defendant and plaintiff?
o Essentially to all foreseeable victims. Based on the Cardozo view, a defendant only owes a duty of care to
foreseeable victims. If the train worker had stopped to consider who might be affected by his actions in the
Palsgraf case, he would not have thought of Ms. Palsgraf 25 feet away, so she was not foreseeable. Under the
Andrews view, a duty is owed to everyone directly affected even if they weren’t foreseeable, but the victim would
still need to prove the other elements of the negligence claim in addition to duty.

Duty of Professionals
General practitioner: Professionals are required to possess and exercise the knowledge and skill of an ordinary member of that
profession in good standing in that community or a similar one. A professional’s mistake will not be negligent if it’s a mistake that
an ordinary member of the profession would make. An expert witness is probably necessary to establish the standard of care.
- Note that it is not the average member of the profession because if the average member sets the bar, then that implies that
half of all professionals are inherently negligent just by being below that average.
- It should be an ordinary member of that profession in good standing in that community or a similar one.
o So if you have a negligence case against a doctor in a small town in Vermont, you could get a doctor in a
DIFFERENT small town, ideally also in Vermont, to testify as to the custom.
- It’s okay for there to be different types of practice. As long as the defendant’s conduct falls within a type of practice that is
accepted by some other members of the profession, that is sufficient.
 o Maybe one doctor treats cancer using method A, and a different doctor treats cancer using method B. As long as
there are several doctors out there to support each kind of treatment, that’s okay.

Specialists: held to a different standard. Specialists are required to possess and exercise the knowledge and skill of an ordinary
member of that specialty in good standing nationally. It seems like the idea here is that there is ONE accepted practice.

Duty of Informed Consent: a doctor will be liable if they don’t explain these things to the patient, something bad happens, and the
patient would not have consented to the procedure/treatment if they had known.
1. Explain risks
2. Explain alternative treatments
3. Explain likely outcomes
4. Explain the procedure

Exceptions
1. You don't have to explain risks that are commonly known.
2. You don't have to explain if patient declines to hear the information
3. You don't have to explain if the patient is incompetent.
4. You don't have to explain if disclosure might hurt the patient.
5. You don't have to explain in an emergency when there is no time

Duty of Landowners
Variables to consider when establishing duty:
5. Source of injury: did the injury result from affirmative activity on the land, or was it due to an encounter with a static
condition? on the land?
6. How does the law categorize the injured entrant?
a. Undiscovered trespasser: no duty owed. Undiscovered trespassers always lose negligence claims.
i. For purposes of determining a landowner’s duty of care to someone on the landowner’s property in a claim
for the tort of negligence, a person can be a trespasser even if the person ended up on the property without
committing any intentional act. This is different than the intentional tort of trespass.
b. Discovered trespasser: regarding an activity, it’s RPP+SC. Regarding a static condition, you only have to protect them
from artificial, highly dangerous, and concealed conditions. You basically only have a duty to protect known trespassers
from man-made death traps. Having a warning would be sufficient.
c. Licensee: a licensee is someone you “like.” This is a friend visiting you, etc. Regarding an activity, it’s RPP+SC. Regarding
static conditions, you most protect from a concealed condition known to the owner. If the owner isn’t aware of the
dangerous condition, they have no duty to warn. This is a broader scope of liability than what you owe to the
trespasser because it includes natural features of the land and things that are less dangerous.
i. Court definition per Mazo: someone who enters land for their own benefit.
d. Invitee: anyone who comes onto premises open to the public at large. It’s often a business visitor, but you don’t
necessarily have to be there for a business transaction. Regarding activity, it’s RPP+SC. Regarding static conditions, you
must protect them from concealed conditions that you knew about or could have learned about by reasonable
inspection. This is known as constructive knowledge. The invitee is owed the MOST care, so you are responsible for
inspection, or making yourself aware of a danger that you might not have been aware of otherwise.
i. Court definition per Mazo: someone who enters the land for a mutual benefit.

How can a landowner insulate themselves from negligence claims?

1. They can fix the thing that is dangerous.
2. They can warn others about the thing that is dangerous.
a. If they have a big sign up warning of danger, regardless of what category the visitor falls into, it becomes AOR if
they proceed. The exception would be children (see below) because they may not be able to read the sign.
Attractive Nuisance Doctrine: protecting child trespassers require RPP+SC. The landowner will need to be aware that children might
be on the property, presumably that the property is “attractive” to children. To assess this special duty on the landowner, the
following elements must be shown:
1. there is a dangerous condition on the land of which the owner is or should be aware;
2. the owner knows or should know that children frequent the vicinity of this dangerous condition;
3. the condition is dangerous because the child is unable to appreciate the risk; and
a. Sometimes a child is old enough/capable of appreciating risk. So this does not count.
4. the expense of remedying the situation is slight compared with the magnitude of the risk.

Duty to Rescue Rule

One does not have an affirmative duty to rescue others, but there are some exceptions:
1. Pre-Existing Relationships: parent-child, employer-employee, common carrier-passenger, innkeeper-guest, jailor to
prisoner, etc.
2. Assumption of duty: a person who voluntarily rescues another is liable for injury caused by failure to act with reasonable
ordinary care (RPP+SC standard again) while performing that rescue.
a. Some states have enacted Good Samaritan statues to protect rescuers from liability in certain circumstances.
Otherwise, trying to save others would feel too risky!
3. Defendant places plaintiff in a position of peril—at that point, the defendant has a duty to rescue plaintiff from the peril
they created.
o If someone acts non-negligently and still injures someone, they might still have the duty to rescue them or prevent
further harm for them even though the non-negligent person was acting reasonably in the first place.
4. Statute or job description requires rescue.
a. For example, lifeguards have a duty to rescue people who are drowning no matter what.
b. Rescue doctrine: Firefighters, police must rescue. If they are hurt, they cannot claim negligence. It's really just the
opposite of the No Duty to Rescue rule.

Limited Duty to Compensate for Stand-Alone Emotional Harms

We are hesitant to compensate for stand-alone emotional harms because:
2) It’s difficult to determine monetary damages for emotional harm.
3) It’s difficult to assess the existence and severity of emotional harm.
4) It’s difficult to limit the scope and number of emotional harm claims arising from a single tortious event.

The ways in which a plaintiff can recover for emotional harm has expanded over the years in many jurisdictions.
1) The Impact Rule: you must have physical injury (an “impact”) to recover for emotional distress.
2) The Zone of Danger Rule: a near miss. The plaintiff was almost harmed and suffers physical manifestations of emotional
distress as a result.
a. Problematic because you could SEE harm but not be close enough to it to be in the zone of danger (see Dillon
rule below).
b. Limited in scope by the physical manifestations requirement. The plaintiff must be able to prove they have
emotional distress.
1. The Dillon Rule/Foreseeability Rule: plaintiff sees the accident, becomes distressed because they directly witnessed the
accident, and the plaintiff has a close relationship with the victim. The emotional distress is foreseeable because the
plaintiff has watched someone they love get injured.
a. Problematic because a lot of people can witness something, but not all can recover because many of them
would not be sufficiently “close” to the victim.
b. Limited in scope by the relationship requirement.
2. Can recover based on relationship similar to economic losses.
a. If your doctor negligently misdiagnoses you, for example, and causes ED, then they can be liable for that
despite lack of physical harm.
 No Duty to Compensate for Pure Economic Losses
You cannot recover for economic harm alone because the scope of this could easily get too broad.
Exception: a fiduciary business relationship. If someone you have a direct business relationship with is negligent and causes
you only economic harm, you might be able to recover.
Note that if you have a physical injury, even a very small one, you can recover for economic harm at that point.
Example: If a car runs over your foot and you miss work for a month, you can recover lost wages even though your injury
was not that severe.
Example: When a building fell, a brick hit a blue door and made a small scratch. The scratch cost $2 to fix. Because of the
fallen building, the store has to close and they lose $2,000 in sales. The building can recover for ALL wages because there
was damage.

Duty to Unborn Children

• Wrongful death cases: jurisdiction vary to the extent that they protect unborn children. Every jurisdiction at least allows
recovery for prenatal injuries that occur to a viable unborn child and the child is later born alive.
• Wrongful birth cases: usually based on negligence of a physician who should have counseled parents that their child would
have severe genetic defects; but for the doctor’s negligence, they would have aborted the pregnancy.
o If parents win, they can recover for emotional distress and the cost of raising a child with defects.
• Wrongful life cases: asserted by child suffering from debilitating birth defects. Similar to wrongful birth but from the
perspective of the child. Many jurisdictions decline to recognize this because it is hard to consider the alternative to
existence.
o If child wins, they can recover for economic loss only. Think about the child paying for their own medical expenses
as an adult.
• Wrongful conception cases: based on negligence of doctor performing sterilization procedure. Four different options for
recovery:
o No recovery at all.
o Benefits rule: a cost-benefit analysis is done to basically weigh the benefits of having a child vs. the costs of having
a child.
o Limited damages: you can maybe recover for costs/pain of giving birth but NOT for the costs of child-rearing.
Basically, recovery stops once the child is born.
o Full recovery: paying for birth but expect the parents to mitigate damages… so parents can recover for cost of
abortion or cost to do adoption, etc.
• Mother’s Duty to Fetus: varies. Some courts hesitate to scrutinize every decision a mother makes. Some have found that
the mother has a duty to fetus and is liable for negligent acts toward it.

Breach
The plaintiff must show exactly what the defendant did wrong to breach their duty.
1. Learned Hand Formula: a defendant breached their duty if the probability and magnitude of harm was less than the
plaintiff’s burden had they taken measures to prevent the harm.
a. A breach happens if the burden of adequate precaution is LESS THAN the probability of loss/injury times the cost
of the resulting loss/injury.
b. Not applied strictly because it’s confusing and can be difficult to determine exact costs.
c. the court balances only the potential severity of the possible harm to other, future victims—not the harm actually
suffered by the plaintiff.
2. Negligence Per Se: Statutory Negligence: pertains to duty as well. The statute sets the duty, and breaking the statute is the
breach.
a. Borrowing a statute and inserting it into the negligence question. In other words, the statute determines the
standard of care. If you violate the pertaining statute, you are automatically negligent because the legislature has
already deemed that behavior unacceptable.
b. Can only be used if
 i. The plaintiff is within the class of persons the statute aims to protect.
ii. The harm is within the class of risks the statute was meant to protect. ----- These 2 things are
prerequisites therefore MOST important to establishing this.
c. If you can’t use a statute, the standard is RPP+SC.
d. Exceptions:
i. Incapacity: a party can’t comply with statute (example: a minor can’t read a sign).
ii. When reasonable diligence would not have allowed compliance.
iii. When complying with the statute is more dangerous than violating it.
iv. Sudden Emergency
---- These things are exceptions and, while important, not as important as prereqs.
3. Custom: a practice followed by all or most people when engaging in an activity. Related to duty. Custom sets the duty,
and breaking custom is the breach.
a. Usually admissible to prove breach, but it’s not conclusive.
b. People can use a custom to argue that they adhered to a standard or that someone deviated from a custom.
i. For example, if it’s custom to do X and you did X, then perhaps you acted reasonably. If you did not do X,
then perhaps that’s a sign of a breach.
4. Res Ipsa Loquitor: “the thing speaks for itself”
a. Even if we don’t know exactly what caused injury, we know enough to infer there was negligence on the part of
the defendant because it’s a kind of accident that rarely occurs without negligence.
b. There is circumstantial evidence but no direct evidence.
c. To prove:
i. Plaintiff must demonstrate he was injured in an accident that doesn't normally happen without
negligence.
ii. Plaintiff must show that the accident was more likely than not attributable to the defendant.
1. Defendant had control over object that caused injury.
2. Defendant had custody over plaintiff at the time the injury occurred.
d. Jury relies on “common experience” to infer negligence.
e. Differing views among jurisdictions
i. Majority: burden of proof stays on the plaintiff. Jury is told they can accept the inference of negligence
but are also welcome to reject it.
ii. Minority view: if there is res ispa loquitor, we assume the defendant is negligent and the burden of proof
shifts to the defendant.

Causation
The plaintiff must prove that the defendant’s actions were both the actual cause (also known as cause-in-fact or factual cause) and
the proximate cause (within the scope if liability) of the plaintiff’s injury.
1) But-for cause: traditional test. “But-for the defendant’s actions would this harm have resulted.” Defendant can respond with
even if. “Even if I had acted reasonably, it wouldn’t have changed het outcome. This works well when we have 1 plaintiff and 1
defendant. But in real life, there are more complex challenges:
a) Multiple causes where EACH could have caused the damage independently.
i) Substantial Factor Test: when there are multiple defendants, each defendant’s conduct would need to be a substantial
factor in the plaintiff’s harm for the defendant to be liable. If all defendants’ actions are substantial factors, then they
are all liable and cannot blame one another.
ii) But-for doesn’t work when there are multiple defendants because if you say but-for one thing would there be damage,
there would still be damage because of the OTHER thing.
iii) Burden shifts to the defendant to prove that they were not a substantial factor.
iv) Plaintiff can recover 100% from a single defendant in this case even though there was another cause.
 b) Concurrent causes: multiple forces COMBINE to cause injury and neither force alone would have been sufficient to cause
injury.
i) Burden shifts to defendant to prove that their cause did not contribute to the harm.
ii) If a plaintiff decides to sue only one of the tortfeasors, they can still prove simple but-for causation.
c) Unascertainable causes: There is ONE but-for cause, but it is unclear which potential tortfeasor caused it. All potential
tortfeasors must have acted negligently even though only one caused the harm. If there is the possibility that one person
acted negligently and the other did not, then you cannot use this; note the difference between discerning who caused the
harm and discerning who was negligent. In this case, the burden shifts to each defendant to prove that his actions were
NOT the cause. If no defendant can exonerate themselves, then they will all be held liable for the plaintiff’s injury.
i) Market Share Liability: the percentage of market share that a potential defendant has is the percent liability they have.
This is ideal for situations where a lot of time has passed and we can’t determine who the tortfeasor was (think
multiple manufactures of a defective product). The burden again shifts to each defendant to prove they were not a
cause/did not have control over a certain market, etc.
ii) Lost Chance Cases: always medical malpractice. It’s under unascertainable causes because it’s unclear whether the
doctor caused the harm or if the disease caused the harm. You can’t say “but-for the doctor’s negligence he would still
be alive” because the disease may have killed him anyway.
(1) All or Nothing Rule: plaintiff can recover if doctor’s negligence was more likely than not the cause of harm.
(a) Plaintiff 1 has a 51% chance of recovery. Doctor misdiagnoses and patient dies. Plaintiff can recover full
amount because the patient would have survived more likely than not but for doctor’s negligence.
(b) Plaintiff 2 has a 49% chance of recovery. Doctor misdiagnoses and patient dies. Plaintiff can recover nothing
because the patient would have died, more likely than not, regardless of doctor’s negligence.
(c) This is problematic because 1) there is a vast difference in outcome for such a little difference in probability,
and 2) it’s hard to quantify exact probability.
(2) Substantial Probability Rule: plaintiffs with less than 50% chance of survival can recover something if they can
prove that doctor’s negligence to some degree lessened their chance of survival.
(3) Lost Chance Rule: the most relaxed rule. Plaintiff is allowed to recover the value of a chance for a cure that the
doctor negligently destroyed. Calculated as “total percentage of damages proven = percentage of recovery that
plaintiff would have had if the doctor exercised appropriate care.”
(a) This forces the doctor to use their best efforts to help someone.

2) Proximate Cause: offers a limitation on the scope of defendant’s liability. Focuses on whether the plaintiff’s harm was within
the “scope of liability” of the defendant’s conduct. A defendant’s liability is limited to those harms that result from risks that
made the defendant’s conduct tortious. Look at the defendant’s conduct and ask, “why did I label that as negligent in the first
place?” If there is a match between the risk and the harm, there is probably proximate cause.
a) Which plaintiffs can recover?
i) Cardozo Approach: those who would be foreseeably injured (emphasis on duty).
ii) Andrews Approach: everyone harmed whether their harm was foreseeable or not (emphasis on proximate cause). An
exception to this is if a particular plaintiff’s injury is not closely connected enough.
b) Can a plaintiff recover for specific type of harm?
i) Direct Cause Test: plaintiff can recover when the defendant’s acts are a direct cause of the harm without intervention
of independent, contributing acts. Does not matter if it’s foreseeable. When it is direct, it’s pretty straightforward and
the plaintiff has a good chance of prevailing.
ii) Foreseeability Test
(1) The type of harm must be foreseeable.
(2) The victims must be foreseeable. There must be an identifiable class of victims in “the zone of danger.”
(3) However, extent of harm and manner of harm do not have to be foreseeable.
(a) Think of manner as the precise sequence of events. We only care about the type of harm GENERALLY.
(4) Superseding vs. intervening causes
 (i) Superseding cause: a second act of negligence cuts off the initial act of negligence. It is not foreseeable to
the defendant, and it puts a kink in the chain of causation. A defendant will argue that there was a
superseding cause to absolve himself of liability. Whether the defendant is off the hook for everything
depends on how much of the harm was done by the superseding cause vs. the initial cause.
(ii) Intervening cause: there is a second act of negligence, but it does not change the fact that the initial act of
negligence was also harmful. The initial actor is still liable. Below are examples of intervening causes that
almost NEVER absolve the defendant of liability:
1. Subsequent medical malpractice: If A injures B and the doctor who treats B messes up, the doctor’s
mistake will ALWAYS be an intervening cause. The doctor’s negligence doesn’t get A off the hook.
2. Subsequent disease and accidents: Same hypo as above, but assume that the doctor does not make
a mistake and B is sent home after treatment. Despite the acceptable treatment, B still develops an
infection. A is still liable.
3. Negligent rescue: if someone trying to save the plaintiff ends up causing more injury, that doesn’t
change the fact that defendant is liable.
4. Reaction forces: other people react to defendant’s negligence, causing harm. If A shoots a gun and
the crowd around starts to run away and then B falls and is hurt because of the crowd, then A is
responsible for that.
5. Special relationships: special relationship between a plaintiff and a defendant, the relationship
creates a duty for the defendant to use reasonable care to protect the plaintiff from the crimes and
intentional torts of third parties, even though third-party acts were not reasonably foreseeable.
c) Extent of damages
i) Eggshell plaintiff rule: The defendant is not required to see the extent of the damages. The type of harm must be
foreseeable, but the cost does not be. Defendant is liable for the full extent of the plaintiff’s injuries due to plaintiff’s
pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.

Defenses to Negligence
1. Contributory Negligence
2. Comparative Negligence
3. Assumption of Risk

In real life, contributory and comparative negligence are more complicated.

The issue: WHO determines the percentage of fault we give to P and D. The jury. Should jurors be told ahead of time what kind of
jurisdiction they live in?

Contributory Negligence
The failure to use proper care for one's own safety or protection which is a legally contributing causes along with the defendant's
negligence in bringing about the plaintiff's harm. The plaintiff's own contribution, even a miniscule contribution, completely bars
their recovery.
This is a harsh doctrine because if contributory negligence is found, the plaintiff recovers nothing. This is why courts have come up
with some ameliorative doctrines:
1. Doctrine of last clear chance: a plaintiff can recover despite their contributory negligence if the defendant had the last clear
chance to avid the accident and did not do so. After the plaintiff's negligence, the defendant committed some kind of
negligence that he could have prevented. He had a "last clear chance" to prevent negligence after plaintiff's actions and
does not.
a. This is always chronological. Plaintiff is negligent at T+1 and defendant is negligent at T+2. There is time for the
defendant to react to the plaintiff’s negligence; it’s not going to be split second thing. How much time needs to be
present? That’s a question of the jury—it should be a reasonable amount of time that passes between plaintiff’s
negligence and defendant’s negligence.
 b. Example: an intoxicated person wanders onto railroad tracks and falls asleep. Train conductor is distracted and
does not see the person sleeping. If he had not been negligent in getting distracted and not paying attention, he
would have had plenty of time to pull the emergency brake and stop.
2. Reckless Conduct: situations where the plaintiff was negligent, but the defendant was something BEYOND negligent. He
was grossly negligent or even reckless.
a. Example: plaintiff is jaywalking, and defendant is driving 90 mph in a 35 mph zone when he hits plaintiff. Yes, the
plaintiff should not have jaywalked, but the defendant was reckless in driving so quickly.
Only 5 jurisdictions still use contributory negligence (NC, VA, MD, AL, DC). Most have moved onto to comparative negligence.

Comparative Negligence
We weigh the defendant's negligence against the plaintiff’s negligence, and we assign a percentage of fault to each party. The jury
acts as the factfinder and assigns these percentages.
• 46 jurisdictions use comparative negligence.

1) Pure Comparative Negligence (~12 states)

We go strictly by percentages. We always assign fault according to the percentages that are determined by the jury. The plaintiff
can always recover no matter what—even if the defendant was only 1% negligent meaning that the plaintiff can only recover
1%. This system can be harsh, however, because both parties could suffer damages in different amounts and the amount they
get varies?
a) Example: D is speeding and hits P, who is jaywalking. P’s medical bills are $100,000. P is found to be responsible for 45% of
the negligence and D is found to be responsible for 55% of the negligence, so P would recover $55,000.
b) Example: D has a very expensive car, and P has a bicycle that is parked on a curb in a negligent fashion. D hits the bicycle,
and his damages are $10,000.
i) D was 90% negligent and P was 10% negligent. D would get $1,000 because that is 10% of 10,000, and P would get
$900 because that was 90% of 1,000.
ii) If D and P were both 50%, then P would get $500 and D would get $5,000.

2) Modified/Partial Negligence
Here, the plaintiff can only recover if their negligence is beneath a certain threshold.
a) 50% jurisdictions or “no greater than D’s negligence”: the plaintiff is barred from recovery if he is more negligent than the
defendant. It can be less than or equal to. ~12 jurisdictions.
i) P is 60% and D is 40% negligent. P recovers nothing.
ii) P is 50% and D is 50% negligent. P CAN recover. He can recover 50%.
b) 49% jurisdictions or “not as great as D’s negligence.” Plaintiff’s negligence MUST be less than. It cannot be equal to. ~15
jurisdictions.
i) P is 50% negligent and D is 50% negligent. Plaintiff CANNOT recover because his negligence would have to be 49% or
less to recovery anything.
c) Slight Comparative Negligence (South Dakota only): plaintiff can recover if his negligence is slight?

Assumption of the Risk

1) Express: If you expressly assume a risk and are injured, you are barred from recovery. If you are expressly warned about
something, you are assuming the risk if you continue. Exculpatory clauses.
a) Example would be buying a ticket to a ski resort and your ticket warning you that the slopes were dangerous, etc.
b) Courts will usually enforce exculpatory clauses unless it goes against a public policy concern.
i) Hospitals, for example, can’t force patients to waive their right to the highest possible quality care.
2) Implied: risk may not be expressly stated to you, but you know about the risk and are acting voluntarily.
a) the plaintiff knew he was interacting with a negligent party,
b) appreciated the risk of doing so, and
c) chose to go ahead voluntarily.

Options for Recovery

1) AOR is complete bar to recovery.
2) If AOR was reasonable, P can recover. If AOR was unreasonable, P cannot.
3) AOR is sort of blended with comparative negligence—P can recover in percentage terms.

Multiple defendants
1) Wisconsin Rule: plaintiff’s share of negligence is compared with the negligence of each individual defendant. Any defendant
whose individual negligence is lower than the plaintiff’s (or equal to, in some jurisdictions), is dismissed.
2) Unit Rule: plaintiff’s negligence is compared to the sum total of the shares of defendants’ negligence.