Torts Outline

Negligence

Basic Elements
Duty
R3 § 7: (a) an actor ordinarily has a duty to exercise reasonable care when the
actor’s conduct creates a risk of physical harm.
(b) in exceptional cases, when an articulated countervailing principle or
policy warrants denying or limiting liability in a particular class of cases, a court
may decide that the defendant has no duty or that the ordinary duty of reasonable
care requires modification
Some jurisdictions have modified the general duty of reasonable care for those
engaging in competitive sports to a more limited duty to refrain from recklessly
dangerous conduct

Breach of duty
Damages
Causation – direct or proximate
Proximate cause or within the scope of liability

Assumption of Risk
Flip side of duty – eliminate Assumption of Risk as an analytical tool except in express
primary cases
Express
Primary = express consent

Not a defense
Implied
Primary (no duty):
P knows of risk
P appreciates risk
Voluntarily encounters risk (reasonable or not is irrelevant)
Not generally defenses
Secondary: (Contributory negligence) Unreasonable assumption of the risk.
P knows of the risk
P appreciates the risk
P voluntarily encounters the risk
Failure to use reasonable care
Is a defense (merged with contributory negligence) and subject to comparison
 Problem: Sets focus on whether P somehow consented to relieve D of liability, invites
subjective judgement that can lead to excessive grants of summary judgement on primary
assumption of risk issue

Scope of Liability – liability is limited to physical harms that result from the risks that made the
conduct tortious
§ 29: Liability
An actor’s liability is limited to those physical harms that result from the risks that made
the actor’s conduct tortious.

Role of foreseeability – Palsgraf v. Long Island Railroad, Hughes v. Lord Advocate, Doughty v.
Turner Manufacturing Co.
Many courts take the position that harm has to be foreseeable and that for the conduct
to be proximate cause it has to be foreseeable
*Courts generally consider foreseeability in deciding the duty issue and then if the court
decides that the risk created by the conduct was foreseeable, the court will conclude
that the defendant owes a duty to the plaintiff.
*After that, the trier of fact will resolve the breach issue (Carroll Towing Co. formula)

Causation
Actual/Direct Cause: But-For Causation
RST 3rd: Liability for Phys Harms § 17: The factfinder may infer that the
defendant has been negligent when the accident causing the plaintiff’s physical
harm is a type of accident that ordinarily happens as a result of the negligence of a
class of actors of which the defendant is a relevant member.
If not for the actions of D the injury would not have happened

Proximate Cause: Natural and continuous sequence of events produces the injury, without
which the injury would not have happened.
§ 27 - If multiple acts exist, each of which alone would have been a factual cause
of the physical harm at the same time, each act is regarded as a factual cause of
the harm.
§ 36 - When the actors negligence conduct constitutes only a trivial contribution
to a causal set that is a factual cause of physical harm under § 27, the harm is not
within the scope of the actor’s liability.
Unbroken by an independent intervening cause

Does not have to be the only cause or the last/nearest cause in the chain of events
Sufficient if occurring with some other cause acting at same time which,
in combination, causes damages

Substantial Factor Test: In cases where two or more defendants were negligent and the
negligence of either would have caused the accident or damage, courts may use the “substantial
factor test” to avoid the problem. (invites subjective judgements by a jury about the degree of
causation)
The “but-for” test won’t work
 It is not possible to say that but-for the negligence of D1 the damage wouldn’t have
occurred. It would have, because of the negligence of D2.
 So the issue then is whether the negligence of each defendant was a “substantial factor in
causing the injury”
Intervening and Superseding Causes
Superseding Cause
Happened after the original negligence/fault
Did not happen because of the original negligence/fault
It changed the natural course of events and made the result different from what it would
have been
The original wrongdoer could not have reasonably anticipated this event

RST 3rd Liability for Phys and Emo Harm § 34: When a force of nature or an independent act
is also a factual cause of harm, an actor’s liability is limited to those harms that result from
the risks that made the actor’s conduct tortious.

Joint & Several Liability “Cat Fight Girls” – Hickory County Case
Two or more defendants who have acted concurrently, jointly, or successively, are liable to the
plaintiff (although not necessarily under the same theory of recovery), for an indivisible injury:
The common law rule is that the defendants are J&S liable.
Each defendant is responsible for his or her share of the damages award
Each defendant is responsible for the entire award.
The impact of the rule is that if one defendant is unable to pay their fair share of the
judgement, the remaining defendant(s) is jointly and severally liable for the entire award.
Because of perceived unfairness, many states have modified the rule of J&S
liability
Some have eliminated it in favor of a rule of several liability (each
defendant pays their fair share and nothing more)
Some have modified to severally unless: when one is more than 50% at
fault or when it is a common scheme or plan with other defendants, a
person commits an intentional tort
Basic requirements:
1. Two or more defendants acting jointly, concurrently, or successively, or
where vicarious liability or imputed fault applies
 2. All Ds are at fault
3. Indivisible injury/injuries to the P(s)
Unmodified:
1. Each D is individually and jointly liable for all damages
2. P may collect all damages from any of the Ds, or from all, according to their
fair shares of the judgement
3. If P collects from only one D, that D has a right to contribution from other Ds
to the extent of overpayment
a. P v. D1 (60%), D2 (40%)
i. If D2 is unable to pay, D1 pays 100% but has a contribution
claim against D2 for 40% and vice versa
Modified:
1. Above: D1 is unable to pay, D2 is responsible for 40%
Pure comparative (with J&S):
1. Above: D2 pays 100% but has contribution claim against D1 for 60%
If D1 and D2 are in a common scheme or plan that resulted in the injury, they are treated as a
unit and if one is unable to pay, the other is responsible for 100%.

J&S (common exception): D1 (51%), D2 (49%) = D1 is joint and severally liable, but D2 would
only be severally liable and only owe 49% if D1 can’t pay.

RST 2d § 402A:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm, thereby caused to the
ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such a product, AND
(b) It is expected to reach and does reach the user or consumer without substantial change
in the condition in which it is sold.
(2) Rule stated in sub (a) applies although
(a) The seller has exercised all possible care in the preparation and sale of his product,
AND
a. Does the product depart “from its intended design . . .”?
(b) The user or consumer has not bought the product from or entered into any contractual
relation with the seller.

a. Matter of Public Policy – imposes the cost of defective products on the

manufacturer who is best able to eliminate product hazards and is in a superior

position to absorb and pass on cost of losses

 b. Practicality – Strict liability allows P to get directly to manufacturer, S.L saves

time and expense of negligence claim

c. Justice/Fairness – manufacturer who creates risk should bare costs

Product Liability Theories

Strict Liability (S.L)
Warranty
Negligence
Misrepresentation
Fraud

Defect Categories
Manufacture
Design
Warning/Instructions

Recoverees: Users, consumers and bystanders are all able to recover.

Defendants: manufacturers, wholesalers, retailers, lessors, not occasional sellers

Transactions: sales, leases, similar transactions

Damages: Personal injury, property damage but not pure economic loss

Personal Injury -----------------------------------Property Damage ---------------------------------------

Economic Loss
Tort Law ???? Contract
Law
(Economic Loss (Damage to product (No
prop. dmg
Pain and Suffering) and other property) or P.I.)

RST 3d § 21 – for purposes of this rst harm to person or property includes econ loss if caused by
harm to:
(a) Plaintiff’s person, OR
(b) Person of another when harm to the other interferes with an interest of the plaintiff
protected by tort law, OR
(c) Plaintiff’s property other than the defective product itself

RST 3d § 19 – For purposes of this restatement

(a) A product is tangible personal property distributed commercially for use or
consumption. Real property and electricity are products when the context of their
distribution and use is sufficiently analogous to the distribution and use of tangible
personal property that it is appropriate to apply the rules stated in this restatement
(b) Services, even when provided commercially, are not products
(c) Human blood and human tissue, even when provided commercially, are not subject to
the rules of this restatement