Torts Meyer 2019

Micah Carper
Battery
Introduction: Elements of Intent
Elements of Battery
 an act by a defendant
 with an intent to cause harmful or offensive contact on the part of the defendant
 harmful or offensive contact to the victim.
1. Vosburg v. Putney
a. Battery without the intent to harm; but with the intent to commit an unlawful act against
the decorum of the setting of the classroom.
b. The appellant in Vosberg tried to bring three questions of law.
1. Intent of defendant and the role of intent in a battery case.
2. Medical expert testimony where a hypothetical question was posed and answered.
3. Question on the amount of damages to be paid.
2. Garratt v. Dailey
a. The doctrine of constructive intent applies to minors.
b. Illustration of the substantial certainty principle. The trial judge, in his fact finding, believed
the defendants version of events: the defendant did not intend to commit a battery.
c. The appellate court finds that if in actor knew that their actions would result in harm with
"substantial certainty," the defendant can be held liable. Substantial certainty is about
specific and imminent harm.
Elements of Harmful or Offensive Contact
 bodily harm: Any level of
o physical injury
o Illness or disease
o impairment of bodily function
o death
 property damages.
 bodily contact is offensive if it offends a reasonable sense of personal dignity.
Harmful or Offensive Quality of Contact
 Was there intent?
o Purpose or substantial certainty of offensive contact.
o Purpose to offend through contact.
 Court states there is no evidence of harm in the complaint.
o Plaintiff's sense of personal dignity was considered unreasonable.
1. Fisher v. Carrousel Motor Hotel
a. Mental Suffering is compensable even in spite of an absence of physical harm.
2. McCracken v. Sloane
a. There is no evidence of actual harm. In a "crowded world," some contact is to be expected,
not all of which will be enjoyable.
b. Court ordered the case dismissed – the first opportunity to throw out a case. Typically, on
the grounds that if the complaint were taken, assuming the facts of the case are true, the
law was nonetheless unable to provide remedy.
3. Cohen v. St. Joseph's Memorial Hospital
a. Knowing interference with the right to self-determination is battery.
 b. How does this case differ from McCracken?
1. The knowing interference with self-determination is a factual distinction. The
objection to contact was importantly based on religious grounds.
2. Another difference is the cost of accommodation.
3. Going back on a promised accommodation is also a relevant distinction.
4. The fact that medical care is founded in the deep notion of personal autonomy. The
cost of accommodation in McCracken was immense. The cost of accommodation in
Cohen was agreed to and minimal.
5. A reasonable sense of personal dignity does not have to be the majority opinion but if
most people would think one has a right to have that view or opinion or desire for
accommodation.
Religious autonomy, patient autonomy, changing social concept of offense, and the low cost of
accommodation were all the contributing factors in the different outcomes between Cohen and
McCracken.
Privileges
Privileged -- Actor owes no legal duty to refrain from conduct.
Consensual -- Plaintiff agreed to defendants otherwise tortious act.
Non-consensual -- Defendant is shielded from liability even if defendant objects to the conduct.
Consent
1. O'Brien v. Cunard Steamship Co.
a. The vaccination was plainly a battery if there was no consent. It was a harmful bodily
contact made with intent.
b. O'Brien stated that she did not verbally consent in the moment and stated that she had had
the vaccination. However, the doctor reasonably thought that the plaintiff had consented.
c. Directed verdict for the defense. Implies that a rational juror could only find for the defense
in this case. The question as to the legitimacy of the directed verdict is put forth on appeal.
d. Consent does not have to be expressed verbally for it to be legally acceptable.
e. The doctor reasonably thought that the plaintiff had consented.
f. The facts that O'Brien was a poor 17-year-old Irish immigrant are important contextual
elements to understanding policy concerns in deciding how this case was decided.
2. Bang v. Chase T. Miller Hospital
a. Patient consent to an operation must be informed of dangers and possibilities.
b. Where a physician or surgeon can ascertain in advance of an operation alternative situations
and no immediate emergency exists, a patient should be informed the alternative
possibilities and given a chance to decide before the doctor proceeds with the operation.
3. Kennedy v. Parrott
a. Because of the plaintiff voluntarily submitted herself to surgery the procedure was, absent
evidence otherwise, authorized as good surgery demanded.
b. Balance of patient autonomy and efficiency, trust in doctors, and their medical expertise.
This decision is the middle ground between O'Brien and Bang.
4. Hackbart v. Cincinnati Bengals
a. Benefit of judicial oversight in this case would be outweighed by the social cost of
judgement.
b. Why hesitate to extend tort law? Burden of cost of trial, use of a jury, more judges, societal
expenses. Doctrines of academic abstention – similar case of absence of tort liability in cases
of tenure denial, grading, etc.
Self Defense and Defense of Others
  An actor is privileged to use
o reasonable force
o not intended to cause death or serious bodily harm
o to defend himself against
 unprivileged
 harmful or
 offensive contact
o he reasonably believes another is about to inflict intentionally upon him, even if force can
be avoided.
 Exceptions to Self Defense
1. By retreating or otherwise relinquishing a right or privilege, or
2. By complying with a command, the actor is under no duty to comply or which the other is not
privileged to enforce by the means threatened.
1. Courvoisier v. Raymond
a. Defendants filing an affirmative defense of self-defense must prove that their fears of injury
under the circumstances as well as they type of force used was reasonable.
b. In this case, the Colorado Supreme Court takes a middle position in stating that one can use
self-defense if there is a reasonable perception of risk of harm.
c. Should the law allow the shopkeepers error in the moment? This court ruled yes.
Defense of Property and the Privilege of Necessity
1. Katko v. Briney
a. Though force can be used to protect property, the force cannot be calculated to cause death
or serious injury.
b. In the defense of private property, deadly force may only be used when the property owner
has a reasonable fear of death or serious injury.
c. The decision does not expand fundamentally on the self-defense provision.
2. Ploof v. Putnam
a. The inability to control movements or the movement onto another's property dictated by
circumstances outside of a person's control is not trespass.
b. Trespass by necessity, for the preservation of one's life is excusable under the law.
3. Vincent v. Lake Erie Transportation Company
a. Here, the dock owner was innocent of intent to damage the dock. The peril of the cargo ship
owner is in effect transferring his peril to the third party of the dock owner; thus, he can be
held liable for the transfer.
b. This is a corrective justice rationale. It is a willful imposition of risk on a third party.
c. One can destroy property of another through necessity of circumstance, but once the
danger necessitating such destruction has passed, one can be held liable for the property
destroyed.
Other Intentional Torts
Assault
Elements of Assault
 Acting intentionally
 To cause the reasonable apprehension of an immediate harmful or offensive contact. 
o Two types of Assault
 Uncompleted Battery - The apprehension of imminent contact and the battery itself.
Tort law separates these into distinct damages.
  Intentional Scare - Where contact is not necessary, but the apprehension of a contact
is.
Should an assault be held to the Reasonable Person Standard?
It should. Like the objective standard of offensive contact discussed in McCracken, Assault should be
held to a standard of objective reasonableness. The perceived mental anguish of a plaintiff is only an
assault if the defendant intended to create the imminent apprehension of a battery. However,
Reasonableness need not be included in every case. An unreasonable apprehension intentionally
exploited by the actor in an assault would still be considered an assault if it was the conscious object of
an actor to exploit an "unreasonable" apprehension.
1. Read v. Coker
a. Assault stands when there is imminent apprehension of bodily contact. The touchstone of
liability is whether the defendant acted with the intent to create in the mind of the
defendant the apprehension of a battery
2. Beach v. Hancock
a. Again, imminent apprehension of battery because the plaintiff did not know if the gun was
loaded.
False Imprisonment
Elements of False Imprisonment
 Intentional act to confine another within boundaries set by the actor.
 The act actually results in confinement of the other.
 The other is conscious of the confinement or harmed by it.
Caveats to False Imprisonment
1. Obstruction is not an imprisonment.
2. Boundaries must be an enclosure.
3. Restraint can be by circumstance.
Justification for Imprisonment -- When is constraint privileged?
 If one uses reasonable means of constraint,
o To detain for a reasonable amount of time,
o If there are reasonable grounds to detain.
Grounds to detain might be self-defense, defense of others, defense of property
1. Whittaker v. Stanford
a. False imprisonment does not need to be humiliating or a physical restraint per se.
2. Coblyn v. Kennedy
a. there was physical restraint in the grabbing of the customers arm by the security guard and
the blocking of his path away from the store, the sympathetic nature of the plaintiff
certainly helped his case.
3. Sindle v. NYC Transit Authority
a. Restraint or detention, under reasonable circumstances imposed to prevent injury or
destruction of property, is lawful.
Intentional Infliction of Emotional Distress
Elements of Intentional Infliction of Emotional Distress
 Extreme and outrageous conduct by the defendant,
 the intention of causing, or reckless disregard of the probability of causing, emotional distress,
 actual suffering of severe or extreme emotional distress, and
 actual and proximate causation of the emotional distress by the defendant's outrageous conduct.
 
 Extreme and outrageous behavior by the defendant
 o Severe emotional distress on the part of the plaintiff
o Defendant intended to bring about or knew with substantial certainty that their behavior
would induce such a disturbance.
1. State Rubbish Collectors Association v. Siliznoff
a. Assault does not protect every dimension of mental peace, only the threat of imminent
physical violence is addressed by assault.
b. Suspicion of mental harm is partially evidentiary, as it is harder to verify its existence and the
existence of the harm caused by it than in other intentional torts.
c. A cause is established when one intentionally subjects another to threats of physical
violence.
d. OUTRAGEOUS behavior is the only kind that will suffice to be considered IIED.
2. White v. Monsanto
a. The plaintiff could not use assault in this case but did tie in the foreseeable threat of harm.
b. In Louisiana there must be
1. knowledge to a substantial certainty or
2. purpose to induce distress.
3. Elsewhere, the IIED statute includes recklessness.
c. Here, the result was unintended and unknown, so it was only reckless, no IIED.
d. Aggravating factors can push obnoxious behavior over the edge to extreme and outrageous
behavior.
e. Social norms, as they evolve and change, can move the line of what is considered extreme
and outrageous.
3. Ford v. Revlon
a. Pattern of abuse went disregarded by the company causing extreme hopelessness and
despondence of their employee, contact was allowed to continue.
b. This allowance was considered extreme and outrageous. 
Harm to Property
Trespass and Nuisance
Trespass - The original tort. Trespass began as a strict liability offense, a bright line of the boundaries of
property. physical tangible entry
Trespass on the Case - Provides remedy for indirect harm. Driven first by carriage accidents, the
prototype of negligence.
Nuisance - Non-trespassory limitations on the use and enjoyment of one’s own land. Was a strict liability
at first but has now evolved to the unreasonable use of land in a way that detracts from one’s neighbor.
Recognition that some use of property by a neighbor could prevent the use and enjoyment of one’s own
land.
Trespass to Chattels and Conversion
Trespass to Chattels - Intentional dispossession or intermeddling with a chattel in possession of another.
Like the plate in Fisher. "Battery to a thing" The interference has to be substantial.
Conversion - Aggravated trespass to chattel. Two things push trespass to chattel to conversion.
 Exercise of dominion or control over the chattel.
 The change to the chattel must be so substantial a dispossession or meddling as to render the
object devoid of value such that the object should be replaced by the dispossessor.
o Theft is the quintessential example of a conversion.
Negligence
Elements of Negligence
 1. DUTY of care from defendant to plaintiff to modify behavior.
2. BREACH of that duty by defendant.
3. CAUSATION: Breach is the actual and proximate cause of
4. HARM to the plaintiff.
 
1. Did defendant owe a duty of care to plaintiff?
a. If so, what was the standard of care?
2. Did defendant breach that duty?
3. Did defendant's breach...
a. Actually and...
b. Proximately...
4. Cause harm?
Duty and Breach
Defining the Standard of Care
Ordinary Care –
 The care a reasonably prudent person would use in a given circumstance.
 Physical attributes can be assessed when using the reasonable person standard. Psychological
attributes are not to be applied when using the reasonable person standard.
 As a Defendant, one seeks to elevate the burden's cost as high as possible
 As a Plaintiff, one seeks to diminish the burden to show is to be low so that the likelihood of
needing to take a precaution is higher.
1. Brown v. Kendall
a. What constitutes ordinary care in a given circumstance will vary on a case by case basis.
Ordinary care is that which a prudent and cautious man would use to guard against
probable danger.
b. Imbedded in this holding is the notion of fault. The question becomes whether the actor has
breached a duty to act or omit an act. Is the actor at fault for committing the act or does he
have a duty to do so?
2. U.S. v. Carroll Towing
a. Learned Hand uses the B<PL formula to determine when a burden is to be an acceptable
one and frames the decision in economic and social costs.
Burden vs Probability x Gravity of harm

to remain on board   Length of time of the absence

Salary for a 24-hour watch   Busy NYC Harbor during

wartime

Cost of liberty for watchman   Damages of the losses

b. If one acts in a way that creates a hazard, so long as the formulaic determination bears it
out, the only reason to take a precaution is if the cost of the burden is less than the
probability of an accident multiplied by the gravity of the hazard created.
3. Adams v. Bullock
a. Here, there was no special danger showing there as a reason for specific precautions at the
point of the accident.
b. The duty to take all reasonable precautions was upheld by the defendant int his case. It was
not an unreasonable measure to use an overhead line for the trolley system.
 c. Cardozo's reasoning as to why the company acted reasonably is a fundamental approach
similar to the B<PL approach of Hand.
1. "Only an extraordinary casualty not fairly within the area of ordinary prevision could
make it (the trolley wire) a thing of danger"
2. "reasonable care in the use of a destructive agency imports a high degree of
vigilance." Only when using something that likely causes grave harm should one's
burden of case be extremely high.
4. Washington v. Louisiana Power & Light Co.
a. In applying the B<PL test, the court determines thought the gravity of the accident involving
a power line is high, the total risk magnitude was not because of the slim likelihood,
especially in light of the plaintiff's previous close call, of an accident.
b. The burden for a precaution is just shifted to the deceased but not lowered.
c. When filing a claim of negligence, all dangers need to be aggregated to consider a burden on
the defendant. Likewise, all benefit should be aggregated.
Special Rules Governing Proof of Negligence
Safety Standards
1. Martin v. Herzog
a. Where safety equipment is not used by a plaintiff, their contributory negligence in causing
harm can be considered.
2. Tedla v. Ellman
a. Where a statute defines no specific standard of care, which would always protect from
harm, it should be construed as a flexible suggestion of care, a custom which, for the
purpose of prevention of harm, may sometimes be disregarded.
3. Brown v. Shyne
a. Breach or neglect of duty imposed by statute is evidence of negligence only if there is a
causal connection between negligence of a statutory duty and the negligence resulting in
harm.
Custom
1. Trimarco v. Klein
a. Custom acts to prove foreseeability of a hazard, proves the feasibility of a given safety
precaution, and reflects the judgement and experience of many people.
b. Customs carry less weight than safety statutes because an industry may have customs
dictated by financial interests that are not necessarily the safest way to do something and
customs are not created by a legislature.
Res Ipsa Loquitur
Enables a jury to find breach of a duty where circumstances that are known are incomplete, the doctrine
fills in the blanks. One only needs the doctrine where facts cannot be definitively pinned down.
When to Apply the Doctrine
a. Exclusive control by defendant of the instrumentality causing injury
b. Injury would not, in the ordinary course of events, happen without negligence.
1. Shutt
a. Res Ipsa Loquitor places the burden of exoneration on the defendant to disprove the
negligence.
b. The doctrine might pry out facts controlled by the defendant that might be released to
disprove the negligence.
1. Here, the gap in the facts is resolvable, the plaintiff might have determined how the
defendant was negligent.
Modifications of the Standard of Care
 Higher duty if the actor is a common carrier.
 Lower if the actor is a landowner/possessor based on the respect in the law for property
possessors.
o Invitee - a person affirmatively encouraged to enter (usually for business) Standard rule of
reasonable care basically, slightly less.
o Licensee - permitted to be on the property (social guest) less duty to warn of dangers, only
those created by the possessor must be warned of.
o Trespasser - not permitted to be on the land. Duty of care is lowest, ratcheted up slightly for
children, known trespassers, constant trespassers.
Duty to Rescue
1. Risk originates from a source other than the potential rescuer.
2. Aside from some exceptions, no one is under a legal duty to help a person in peril not created by
the potential rescuer.
a. Policy Reasons
1. Difficulty of adjudication in regard to when and how one should act to help
2. Worry of imposing liability interfering with personal liberty and the individualism so
important to the theory of law in America.
Special Relationships Giving Rise to Duty to Rescue
1. Causation of Peril (Tubbs)
2. Enhancement of Peril - "Voluntary Undertaking" and:
a. Reliance by the victim (Erie)
b. Deterrence of other potential rescuers (Lacey "rest on their oars")
3. Induced Dependency (Kline)
 
1. Erie Railroad v. Stewart
a. There is no general duty unless there is some "special relationship" giving rise to a duty to
act.
b. Where there is a "voluntary undertaking" by the defendant to protect, there exists a duty
to continue that protection.
c. A special relationship can be created when there is reliance on a voluntary undertaking by
the imperiled party or deterrence of other potential rescuers.
d. In either scenario, the peril of the person is compounded by their reliance or the deterrence
of others. The undertaking has to be detected by others and internally expressed to be a
valid voluntary undertaking.
2. Tubbs v. Argus
a. If the defendant is the cause of the plaintiff's peril, they are obligated to take reasonable
steps to help plaintiff whether peril is created by negligence or not.
b. The fact that the potential actor is causally entangled in the creation of peril or (as above)
aggravation of the peril is part of the reason of the creation of the duty.
c. It accords with a moral sense one should deal with the peril of one’s own creation the causal
connection also mitigates the concerns expressed about a general duty to rescue because
the duty is focused on only those that are causally connected.
d. Though there is a duty, there is only breach if the aid is not reasonably rendered.
3. Rhodes v. ICG Railroad
a. The court found premises liability insufficient because the company and their premises did
not give rise to the peril.
 b. The injury was not the result of a slip and fall based on the creation of a hazard by the
railroad.
c. Court says there was no voluntary undertaking simply by calling the police. As a policy,
calling the police for help should not be considered the creation of a special relationship as
it might discourage people from doing so for fear of being held liable.
4. Kline v. 1500 Massachusetts Ave.
a. The landlord has the superior opportunity to act with regard to the hazard of the robbery
inside the common areas of the building.
b. Further occurrence of the robberies were foreseeable possibilities.
c. The tenant gave up some of her power over her circumstances to the landlord in regard to
safety in common areas.
d. There was a dependency, an induced reliance based on the terms of the lease, and the
landlord had exclusive control over the common areas.
e. The reason this logical leap is necessary is that the peril was by a third-party actor. If the
injury had arisen out of a condition of the premises, it would be a simpler negligence case.
5. J.A.W.
a. The application of the holding of Tarasoff is limited by a determination by the court that the
marriage therapist does not have the same duty as a psychotherapist.
b. The Tarasoff case shifted the framework of the "special relationship" from a one on one
relationship between a potential intervener and a person in potential peril to one between
the potential intervener and the perpetrator.
c. The court here finds the special relationship does not apply to marriage counselors speaking
to third parties.
Causation
Two components necessary to satisfy in regard to causation. Both must be fulfilled.
 Actual Causation - Cause in Fact - Factual question - did defendants breach act as essential
precursor to the harm caused?
 Proximate Causation - How far back in the causal chain to draw the line, as a policy decision.
Actual Causation
"But for defendant's breach of duty, would plaintiff have suffered same harm anyway?"
1. Ford v. Trident
a. Decedent was a goner in spite of the defendant's negligence. There was no actual causation
present.
b. But for the defendant’s breach of duty, plaintiff would have drowned anyway.
c. But for absence of a handrail, but for lashing of the boat, but for the absence of davits,
plaintiff would have drowned anyway.
2. Hoyt v. Jeffers
a. The question to ask here is "But for the negligence of the sawmill operator, would the hotel
have burned anyway?" The court says, based on circumstantial and historical evidence, no.
b. This case shows there need not be incontrovertible evidence of actual causation. The
standard of proof, as in most torts, is the preponderance of the evidence.
c. As opposed to res ipsa loquitor, where the evidentiary gap is about HOW the defendant was
negligent, here the gap is about how the harm came to pass.
Hard Cases of Actual Causation
1. Loss of Chance: Innovation in Plaintiff's burden of proof on causation or concept of injury.
a. Three Way Split
i. Traditional (No Recovery)
 ii. Relaxed Causation (Full Recovery)
iii. Separate Injury (Proportional Recovery)
2. Joint Causation: Innovation in the "Substantial Factor" test. (And joint and several liability)
3. Alternative Causation: Innovation in shifting the burden of proof to defendant (and joint and
several liability)
4. "Market Share" Liability: Burden shifted to defendants and the division of liability according to the
market share of harm causing product.
Loss of Chance Cases
1. Traditional Rule - (But for...) No recovery, still the majority rule
2. "Substantial Factor" test - (Cahoon) Full Recovery
3. "Separate Injury" Approach - Proportional recovery to the chance lost due to malpractice. There is
no discount of the proportion of recovery where the patient has good odds of avoiding a bad
outcome and treatment lessens the chance, only where the chance is already slim.
 
1. Cahoon v. Cummings
a. The doctor owed a duty of care to act as a reasonably prudent medical professional would in
the situation. Evidence was presented that the duty was breached.
1. Was the harm caused by that breach?
1. Had the doctor not breached his duty, the patient had a 25-30% chance of
survival.
2. The malpractice further lessened the plaintiff's chances.
3. Plaintiff probably would have died anyway so the traditional answer would be
no recovery.
b. Is the policy concern of wanting to discourage malpractice reason enough to modify the
causation standard to hold the doctor liable for the loss of chance?
c. Here, there was not actual causation, but the negligence of the doctor was a "substantial
factor" in the death of the patient.
2. Holton
a. How complicated it can all get. The lower court compensated the total injury. The court
found patient could recover for the whole amount of the injury in the appeal.
b. Does this case make sense where the whole damages of the amount are recovered but the
court uses the traditional rule?
c. The holding here is basically that there is no need to relax the burden of proof for medical
malpractice.
d. §323 - If one undertakes to render services he recognizes as necessary for the protection of
another, they are subject to liability for harm resulting from his failure to exercise
reasonable care if the failure to exercise reasonable care increases the risk of harm.
1. Reading the restatement literally, any increase in risk of harm can confer liability. This
relaxes causation for any reduction in harm at all.
2. Holton seems to state that the risk must be increased by any degree at all and the
actor can be held liable.
3. A counter to that is that §323 is a Restatement of the voluntary undertaking doctrine
from the duty to rescue. This establishes a duty, not causation.
Joint/Alternative Causation
"Substantial Factor" - Joint and several liability
How is each actor liable?
 The court could divide liability "pro rata" proportionally to the number of defendants equally.
 Or proportionally based on the amount of negligence of each defendant
  Or Joint and several liability where the plaintiff can collect the full amount from any of the
defendants and the defendants can figure out how to divide the money damages amongst
themselves,
o each is in effect responsible for the full amount of damages.
o maximum flexibility for the plaintiff,
o useful when defendants
 act in concert
 act independently but the injury is indivisible (Two cars hit plaintiff at the same time)
1. Summers v. Tice
a. Somewhat similar to joint causation, but here both did not cause harm, it was one or the
other.
b. Both are held liable unless one or the other can absolve themselves.
1. Joint tortfeasors
2. only one of whom actually caused the harm
3. both breached a duty of care.
c. The burden of proof of exoneration shifts to defendants.
d. Plaintiff must prove through the preponderance of the evidence that the defendants
breached a duty and one or the other caused harm.
Market Share Liability
Elements of Market Share Liability
 Factors of market share liability
o Generic Product
o Latency of harm
o Inability of determining specific actor causing harm
o Clarity of causation of harm by the product
o Absence of other factors that could cause harm
o Market share data that can ascribe apportionment of liability
1. Exxon Mobil and Suffolk County
a. Multiple defendants, any one of whom could have caused the harm or each of whom
caused some of the harm. All are considered negligent.
b. The difficulty is ascribing specific harm to specific actors. Plaintiffs must bring defendants
representing a substantial share of the market.
c. Defendants must either exonerate themselves or be liable for their market share of the
product which caused the harm.
d. Largely confined to pharmaceuticals, oil, chemical cases. Liability for actors that cannot
stand trial (for reasons of bankruptcy, death, etc.) is not redistributed among those actors
that can stand trial.
e. Plaintiffs cannot recover from defendants with a part of market share who have gone
bankrupt or are exonerated.
Proximate Causation
 Question of Policy - Where to draw the line in the chain of events, how far to extend the causal
link and impart liability.
 "As a matter of policy, which actors in actual causal chain should be held legally responsible for
the harm?"
  Proximate does not necessarily need to be the closest cause, but the one that makes policy sense.
"Who ought to pay for the harm caused?"
o Some courts state the line should be drawn at the most immediate cause of harm.
o The "directness test" has in the modern era fallen out of fashion.
o Foreseeability is also a concern.
A Plaintiff's lawyer would seek to A defense lawyer would seek to shift the
hold each party to the harm as proximate cause up or down the causal
liable for it. chain from the client.
1. Palsgraf
a. None could foresee such a result could unfold from the events on the train platform.
b. Tort liability only occurs when defendant's breach of duty was a breach of duty owed to the
plaintiff.
c. Here, the only breach that could be construed from the events was to the Italian that got
jostled and who's property was destroyed.
d. One is only liable "personally" from defendant to plaintiff. Plaintiff must show the railroad
company employees' conduct was wrong to her personally.
e. Maybe defendants were liable for a breach of duty to the Italian, but not the plaintiff here.
2. Rodriguez
a. Courts should use policy considerations to determine if a duty is owed.
b. The court should not weigh the evidence of a case to determine if a duty is owed as that is
up to a jury.
3. Marshall
a. In an accident due to negligence, before the dust has settled, in spite of a bizarre causal
chain, the initial culpable negligent actor can be held liable.
b. The heightened risk is not necessarily not over until the plaintiff has reached a "zone of
apparent safety"
c. plaintive injury must be spatially or temporally remote from the initial negligence to break
the "causal chain."
Intervening Causes
1. Herrera/Stahlecker
a. Can a negligent party be held liable in spite of the criminal intervention?
b. In Watson, the significance of the intervention turns on the determination if the act was:
1. intentional and malicious (superseding unforeseeable act) or
1. Breaks the causal chain
2. simply negligent (intervening foreseeable act)
1. Previous negligent actor may be held liable
c. The more modern standard is to consider the circumstances in their totality and to
potentially allow a previous negligent actor to be held liable if the crime was a foreseeable
consequence of the negligence.
Foreseeability Questions throughout Negligence
 Duty - Is it foreseeable that any harm would come to that specific plaintiff?
 Breach - What is the foreseeability of the likelihood and gravity of harm to anyone? What could go
wrong? What is the cost of the reduction of risk?
  Proximate Causation - Is it foreseeable that the specific harm suffered by the plaintiff would come
to pass? (Marshall)
o Type of harm - Marshall - being hit by a car
o Intervening causes? - foreseeability of intervention
o Position of apparent safety
o Eggshell Plaintiff - Rule of scope of damages, not of liability (Foreseeability of the extent of
the harm) All in for the damages even if the extent of harm was unknown if defendant acted
tortuously. Defendant need not be able to foresee the extent of plaintiff harm, only its
potential.
Defenses
Contributory Negligence
Complete bar to recovery if plaintiff's negligence contributed to their harm.
Had Plaintiff acted with ordinary care, injury would have been avoided.
1. Butterfield
a. If the plaintiff did not act with ordinary care the negligence of the defendant cannot be the
basis of recovery.
b. To determine whether a plaintiff was negligent, there must be a separate negligence
analysis.
2. Davies
a. plaintiff negligence precludes recovery where the plaintiff could have by ordinary care
avoided the consequence of defendant negligence.
b. here the plaintiff could not avoid the defendant's negligence, the case may stand, based on
the last chance doctrine.
Comparative Negligence
Partial bar to recovery, broken down by percentage of fault.
Two Models of Comparative Negligence
1. "Pure" - Basically a mathematical calculation regardless of allocation of fault.
2. "Modified" - Plaintiff cannot recover at all if the court finds their negligence was a greater factor
than the negligence of the defendant. A hybridization of comparative and contributory regimes.
Where a plaintiff can recover, they operate in the same way.
Assumption of Risk
Defendant must prove
 a plaintiff knew of a specific danger
 was aware of its unreasonable character and
 knowingly and voluntarily exposed themselves to it nonetheless
1. Hennessey
a. even if the plaintiff were aware of defendant’s presence and her risk of injury, her
acceptance of risk was not voluntary because defendants conduct left her no reasonable
alternative to exercise her right to enjoy her property, a right the defendant had no right to
deprive her of.
b. Foreseeability of that type of harm seems reasonable based on the negligent hitting of golf
balls, so, as a policy, to determine proximate causation, are the injury and the act
sufficiently connected? Likely yes.
Strict Liability
Abnormally Dangerous Activities
 No distinction based on presence or absence of fault.
o Actor whose conduct proximately caused injury to plaintiff is liable irrespective of their
standard of care.
 Now, in certain pockets of activity, strict liability is still applied
o Abnormally Dangerous Activities
o Wild Animals
1. Fletcher v. Rylands
a. If a land possessor creates on their land an unnatural hazard which might cause damage to
others if it were to escape, they are liable for the damage which is the natural consequence
if that unnatural hazard is to escape.
b. In a traffic collision there must be fault,
1. in traffic, there is an inherent risk of harm
2. and a mutuality of risk
3. There is a natural background risk level on a highway.
c. The risk of harm from an abnormally dangerous activity is unilaterally imposed.
2. Turner v. Big Lake Oil Co.
a. TEXAS AINT ENGLAND
3. Siegler v. Kuhlman
a. A volatile material, traveling at high speed, in large quantity, on public highways, subject to
all the hazards of the road, is inherently dangerous. Compounding that danger with the
danger of ignition when it breaks from its containment is immensely dangerous.
b. The court concludes here strict liability is proper.
1. The failure is catastrophic,
2. there is not mutuality of risk, and
3. the risk cannot be sufficiently lessened by exercise of due care.
c. Ryland's conception of "unnatural" risk means abnormal for the context. There has to be
elevation from the baseline amount of risk.
4. Toms v. Cavalry Assembly of God
a. The level of residual risk for the show was sufficiently lowered by the regulation whereas
the regulation of a gas tanker wouldn’t be, that level of risk still outstrips the baseline.
b. The court investigates the activity in its totality, not just the noise.
5. Foster v. Preston Mill Co.
a. Under proximate cause, notice changed the foreseeability of the type of harm to the mink.
The blasters were put on notice to that the type of harm.
b. Strict liability is called for when the harms caused are those which lie within the
extraordinary risk which calls for the designation.
c. The application is limited to the types of harm stemming from the activity's abnormally
dangerous nature.