Notes - Torts - 608

Outline - Torts
Section 419
Spring 2013
I. Intentional Torts
Tort law has competing policies
● Corrective Justice
● Public Policy
A. Fault
i. Tort law is premised on fault, or blameworthy conduct
i. Strict liability is an exception as plaintiffs do not need to establish
fault
ii. Blameworthy conduct can be:
● intentional conduct
● negligence
● strict liability
ii. Cases
i. Van Camp v. McAfoos
B. Intent
i. Defined two ways
i. Acted with purpose or desire to cause contact, (Mullins) or
ii. Substantial Certainty Test
● The tortfeasor does not have to specifically intend to cause
a harmful or offensive contact, but they must only be
substantially certain that their action will do so. (Garratt,
White)
ii. Doctrine of Transferred Intent
i. A intends to hit B but hits C. The intent to hit B is transferred to
C. (Stoshak)
ii. Doctrine of Transferred Intent (between torts): If a person
intends to commit one tort but commits another tort instead,
the intent transfers to the actual tort committed.
iii. Cases
i. Garratt v. Dailey
ii. White v. Muniz
iii. Stoshak v. East Baton Rouge Parish School
iv. Cullison v. Medley
C. Extended Liability
i. A tortfeasor who commits an intentional tort is liable for all damages
caused and all consequences of that tort, not just those intended or
foreseeable.
D. Battery
Intent and result requirements
i. Elements
i. An act by defendant
ii. The act caused contact with the plaintiff (Mullins)
iii. Defendant intended to cause harmful OR offensive contact
(Cohen)
iv. Contact was harmful or offensive
ii. Cases
i. Prosser v. Keeton
ii. Van Camp v. McAfoos
iii. Snyder v. Turk
iv. Cohen v. Smith
v. White v. Muniz
vi. Mullins v. Parkview
E. Assault
i. Elements:
i. Reasonable apprehension of
● Apprehension = anticipation, not fear.
● Conditional apprehension works too
ii. an imminent contact
● imminent = no significant delay, not immediate.
● Plaintiff must be aware of imminent contact
iii. intent
● can transfer -- intend a battery and end up committing
assault because of bad aim
ii. Cases
i. Cullison v. Medley
F. False Imprisonment
i. Elements:
i. Intent to confine within boundaries fixed by the actor
ii. Actual confinement by the actor; victim must either know of the
confinement at the time it occurs, or be harmed by it if they are
unaware of the confinement
● Confinement doesn’t have to be physical, just a belief that
they can’t leave (stolen pants)
ii. Cases:
i. McCann v. Wal-Mart Stores, Inc.
G. Torts to Property
i. Trespass to Land
i. Elements
● intentional entry upon the land of another without
permission or refuses to leave
a. throw something, mistakenly get there, or have your
invitation revoked
ii. Conversion of Chattels
i. Elements
● Defendant must intends to exercise substantial dominion
over the chattel that is owned by the plaintiff.
a. Substantial dominion: Is met by theft of chattel,
destruction of chattel, or by exercising a strong
degree of control over the chattel.
b. Degree is central to distinguishing between
conversion and trespass
iii. Trespass to Chattels
i. Elements
● Intentional interference, without justification or consent,
with someone’s use or possession of property. (School of
Visual Arts)
a. This is a temporary deprivation
iv. Cases
i. School of Visual Arts v. Kuprewicz
H. I.I.E.D.
i. Elements of Emotional Distress:
i. Extreme and outrageous conduct;
ii. Intentionally or recklessly;
iii. Causes emotional distress; and
iv. Distress is severe
ii. Generally
i. Must show that relationships between individuals lent itself to
abuse (e.g. employer, servant, etc.)
ii. Express or implied threats are often made
iii. Consistency of the behavior; once time activity often won’t
cause “severe distress”
iv. Special vulnerabilities that allow stress to be severe and
infliction to be intentional/reckless
iii. Cases
i. GTE Southwest, Inc. v. Bruce
ii. Jones v. Clinton
I. Defenses
Defendant must only disprove one element of an intentional tort to defeat a
prima facie case
First 4 defenses are based on plaintiff’s conduct
i. Self-Defense
i. Defendant must prove:
● Reasonable person would have perceived a threat that
required defendant to act; and
● Defendant’s response was reasonable.
ii. Use of Force - Proportional
● You can use the same amount of force that is being used
against you
● Provocation does not justify force
● Use of deadly force is limited if you’re able to retreat
ii. Arrest and Detention / Shopkeeper Rule
i. Generally
● Defense to false imprisonment
● A shopkeeper may detain a suspected shoplifter “on the
premises” for a reasonable investigation.
a. privilege extends beyond premises (Peters v.
Menard)
● If storekeeper reasonably believes in shoplifting, they can
detain somebody for a reasonable period on the premises
ii. Cases
● Peters v. Menard
iii. Defense and Repossession of Property
i. Generally
● You can threaten to use deadly force to protect the rights
of your property and still invoke the privilege
● If you use deadly force or force likely to cause serious
bodily injury to protect property then you will not be able
to claim the privilege
● No harm no foul, but if something happens when you use an
unreasonable amount of force, even if there is not an
intent to harm then you will be unable to raise the
privilege as a defense
ii. Cases
● Katko v. Briney
● Brown v. Martinez
iv. Consent
i. Actual consent (Express)
● person agrees to the conduct (subjective)
ii. Apparent consent (Implied)
● person appears to agree to the conduct by their words or
actions (objective)
iii. Consent Defenses:
● Person lacks the capacity to consent
● Touching goes beyond what was originally consented to
(outside the boundaries)
● Fraud or mistake
iv. Cases
● Robins v. Harris
● Kennedy v. Parrot
● Doe v. Johnson
v. Necessity
i. Privileged Conduct
● Arrests and searches; officers can enter land to execute a
sear or arrest warrant
● Public rights; user of public utility (e.g. a restaurant) has
the privilege of not being denied access and cannot be held
as a trespasser
● Necessity; public and private necessity
ii. Public Necessity
● A public danger (affects the greater public) - complete bar
to liability
● Saving lives is virtually always a public necessity (Surroco)
iii. Cases
● Surroco v. Geary
● Vincent v. Lake Erie Transportation
iv. Private Necessity
● A private danger (affects your own private needs) - does
not act as a complete defense
a. If there is damage or loss, there is a requirement to
pay restitution
b. Distinguished by who is making the decision and how
many people benefit from the decision
v. Cases
● Ploof v. Putnam
● Wegner v. Milwaukee Mutual
II. Negligence
A. Elements
i. Duty
ii. Breach
iii. Actual Harm
iv. (F)Actual Cause
v. Proximate Cause
B. Duty
i. Standard Of Care - Reasonable Care/Ordinary Care
a. exercise the care that would be exercised by a reasonable and
prudent person under the same or similar circumstances to
avoid/minimize risk to others.
b. Standard never changes (Stewart v. Motts) except:
1. Physical disability = reasonable care by a person with a like
infirmity (Shepard v. Gardner Wholesale)
a. NOT Mental (Creasy v. Rusk)
2. Expert/Superior Knowledge = if an actor has more than
minimum qualities, then he is required to exercise them in
a reasonable manner. (Hill v. Sparks)
3. Jury instructions - Sudden Emergency (Bjorndal)
a. Same level of care, just being clearly explained to
the jury
c. Cases
1. Stewart v. Motts
2. Shepard v. Gardner Wholesale
3. Creasy v. Rusk
4. Hill v. Sparks
5. Bjorndal v. Weitman
ii. Children
a. If a child is involved in a child’s activity, they use a reasonable
child standard.
b. If a child is involved in an adult activity, they use a reasonable
adult standard.
1. An adult activity is generally anything involving a motor
vehicle
c. Cases
1. Robinson v. Lindsay
iii. Negligence per se

a. Statute itself supplants the usual common law standard of care
b. To establish negligence per se:
1. the statute or regulation must clearly define the required
standard of conduct; (Martin)
2. the statute or regulation must have been intended to
prevent the type of harm the defendant’s act or omission
caused; and
3. the plaintiff must be a member of the class of persons the
statute or regulation was designed to protect (O’Guin)
4. The violation must be the proximate cause of the injury.
c. A person’s conduct is excusable if: (Impson)
1. the violation is reasonable because of the actor’s
incapacity;
2. he neither knows nor should know of the occasion for
compliance;
3. he is unable after reasonable diligence or care to comply;
4. he is confronted by an emergency not due to his own
misconduct; or
5. compliance would involve a greater risk of harm to the
actor or to others.
d. Cases
1. Martin v. Herzog
2. O’Guin v. Bingham County
3. Impson v. Structural Metals
iv. Sudden Emergency
a. People who are suddenly placed in a position of peril through no
negligence of their own, and who are compelled to act without
opportunity for reflection, are not negligent if they make a choice
as a reasonably careful person placed in such a position might
make, even though they do not make the wisest choice.
b. Many districts do not use the emergency instruction, however, as
the standard of care never actually changes, merely adjusts to
the situation and it’s up to the jury to determine if the defendant
acted reasonably (Bjorndal).
c. Cases
1. Bjorndal v. Weitman
C. Breach
i. Foreseeability is Key
a. Reasonable care, not perfect
b. Alternatives are often examined
1. Pipher - How the second jerk of the wheel could have been
prevented; was there a reasonable way to stop it
2. Indiana - Balance convenience and risk; potential harms
and effort weighed
c. Hand Formula (Carroll Towing)
1. B = burden of adequate precautions against the risk (costs,
time, effort)
2. L = the gravity or magnitude of the harm or injury (loss)
3. P = probability of the harm occurring (foreseeability)
4. If B<PL and the defendant failed to incur the burden, then
it’s a breach
5. If B>PL then failure to take the precaution is not a breach
of the standard of care
ii. Proof
a. Plaintiff must prove the elements by a preponderance of the
evidence
1. Slip and fall (Thoma)
a. actual knowledge (knew) or constructive knowledge
(should have known); or
b. created the hazard
b. Can use direct evidence or circumstantial evidence
c. Custom can be used as evidence for ordinary care
1. As a sword, ok (Duncan v. Corbetta)
2. As a shield, not ok (TJ Hooper)
d. The mere happening of an accident is not evidence of breach
(Gift)
1. Res Ipsa is the exception to this
iii. Cases
a. Pipher v. Parsell (Noted)
b. Indiana Consolidated Insurance Co. v. Matthew (Noted)
c. United States v. Carroll Towing Co. (Noted)
d. Forsyth v. Joseph
e. Thoma v. Cracker Barrel Old Country Store Inc. (Noted)
f. Duncan v. Corbetta
g. The T.J. Hooper
iv. Res Ipsa Loquitor
a. For use when plaintiff cannot prove defendant’s breach, but
negligence is the leading cause of that type of harm
1. Explore alternatives (e.g. Jeffries -- no inspection on car,
may not have been negligence)
b. 3 part test:
1. The accident which produced a person’s injury was one
which ordinarily does not happen in the absence of
negligence
2. The instrumentality or agent which caused the accident
was under the exclusive control of the defendant, and
3. The circumstances indicated that the untoward event was
not caused or contributed to by any act or neglect on the
part of the injured person.
c. Res Ipsa Loquitur does not establish negligence (this is not
negligence per se). All RIL does is allow the breach issue to be
presented to the jury.
v. Cases
a. Byrne v. Boadle
b. Warren v. Jeffries
D. Actual Harm
i. A legally cognizable harm, frequently referred to as actual damages.
Failure to show that actual damage resulted from negligence will lose.
ii. Cases
a. Right v. Breen
E. Causation
i. Factual
a. But-for Test (Hale)
1. but for the defendant’s actions, the plaintiff would not
have been injured.
2. For want of a nail
b. Multiple Tortfeasors
1. Only for use when there is an indivisible injury (Landers)
2. When harm cannot be divided between multiple
defendants, each is a cause and fault apportionment rules
apply
a. Fault Apportionment Rules
i. Apportion by causation; used with divisible
injuries
ii. Indivisible injury from multiple tortfeasors
1. Joint and Several Liability with
Contribution
a. All defendants are 100%
responsible; can’t collect more
than 100% but can get it all from
1 defendant
b. Defendant can then go after
others for contribution
2. Proportionate Share
a. Jury is asked to determine fault
for each defendant
3. If defendants breach is substantial factor, defendant may
be liable (Anderson)
a. Substantial factor test determines that either of the
tortfeasors breaches was sufficient to cause the
harm
4. Burden of proof is shifted back to defendant (Summers)
ii. Cases
a. Hale v. Ostrow
b. Salinetro v. Nystrom
c. Landers v. East Texas Salt Water Disposal Co. (Noted)
d. Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway
(Noted)
e. Summers v. Tice
iii. Proximate
a. Define Scope of Risk (Palsgraf)
1. Harm that occurs must be of the same general nature of
the defendant's negligence
2. eg. internal dialogue -- gee i better not do x otherwise z
may happen
b. Danger Doctrine
1.
c. Extent of Injury Unforeseeable
1. Thin skull rule (Hammerstein)
d. Unusual Manner (Hughes)
1. Most often doesn’t matter as long as it is still within scope
of risk
2. IF harm occurs in such an unusual manner that its from a
different risk, then it destroys proximate cause (Hughes,
Turner Manufacturing) (Turner Manufacturing)
e. Intervening
1. Act is a superseding cause (Watson)
2. T1 and T2
a. T1 wants to pin it on T2
3. Acts must be sequential from T1 and T2 (Nugent)
4. Gaines Tab (OK bombing)
a. IF cause is independent of original injury and not
foreseeable it breaks causal chain and second actor
is liable
5. T2s negligence can break the causal chain
6. Position of Safety
a. Reaching position of safety can defeat liability for T1
iv. Cases
a. Bernier v. Boston Edison Co. (Mrs. Magoo struck by a car and
careens out of control)
b. Medcalf v. Washington Heights Condominium Ass’n, Inc.
c. Abrams v. City of Chicago
d. Palsgraf v. Long Island Railroad Co
e. Hughes v. Lord Advocate
f. Doughty v. Turner Manufacturing Co. LTD.
g. Hammerstein v. Jean Development West
h. Watson v. Kentucky & Indiana Bridge & Railroad
F. Defenses to Negligence
Negation of one element will defeat
Affirmative Defenses
i. Contributory Negligence
a. Plaintiff was also negligent; plaintiff failed to care for themselves
(Butterfield)
b. Complete defense
ii. Comparative Negligence
a. Can be a complete defense but most often isn’t
b. Pure comparative negligence
1. Compare both sides of the v
c. Modified comparative negligence
1. If plaintiff is too much at fault, plaintiff can’t collect
iii. Rescue Doctrine
a. If a person sees another person in imminent danger, the individual
cannot be charged with contributory negligence unless they act
recklessly
iv. Last Clear Chance
a. If the defendant discovered or should have discovered the
plaintiff’s peril and could have reasonably avoided it, the
plaintiff’s earlier negligence would neither bar nor reduce
damages
b. Cannot use contributory negligence defense
v. Illegal Activity
a. When the plaintiff’s injury is a direct result of his knowing and
intentional participation in a criminal act he cannot seek
compensation for the loss. (Barker)
vi. Assumption of Risk
a. Assumption of Risk
1. a person assumes a risk when voluntarily agrees to accept a
known and appreciated risk
2. Variation of consent that arises under negligence
a. i.e. a consent to harm
3. Complete defense in a contributory defense jurisdiction
b. 3 Types of Assumption of Risk
1. Express AoR
a. Agreement for 𝚷 to accept risks (Boyle)
i. Exceptions - Doesnt’ need to be written (e.g.
hospital in Tunkl)
b. Exculpatory clause hold harmless (e.g. sports
facilities)
c. Use doesn’t matter what kind of jurisdiction you’re
in (i.e. comparative vs. contributory)
2. Implied AoR - Primary
a. Voluntarily accepting a known and appreciated risk
through their actions
b. Plaintiff implicitly agrees to conduct that is
inherently risky (Avila).
c. No duty to make activity any safer than normal, but
cannot increase the risk
d. Still in action in contributory negligence jurisdictions
and acts as a complete defense
3. Implied AoR - Secondary
a. Voluntarily accepting a known and appreciated risk
through their actions
b. Facing defendant’s negligence, the plaintiff agrees
to encounter the risk anyway (Betts)
i. Car with breaks that were never serviced;
made known, you take it anyway
c. Merges with comparative negligence in some
jurisdictions (i.e. comparative jurisdiction regime)
and becomes a partial defense
d. Still in action in contributory negligence jurisdictions
and acts as a complete defense
vii. Cases
a. Marshall v. Nugent
b. Butterfield v. Forrester
c. Crownover v. City of Shreveport
d. Barker v. Kallash
e. Boyle v. Revici (AoR)
f. Tunkl v. Regents of University of California (AoR)
g. Betts v. Crawford (AoR)
h. Avila v. Citrus Community College District (AoR)
III. Landowner Duties

A. Classes - Trespasser, Licensees, Invitees, and Children
a. Landowners Duties
i. Invitee
1. Business Invitee - A person invited on to provide a
pecuniary benefit
2. Public Invitee - A person on the premises that is open to
the general public
3. Duty
a. Ordinary care
i. Disclose hidden dangers, unless danger is open
and obvious
ii. Licensee
1. Allowed on land with permission, but had limited license to
be there
a. Includes social guests
2. Duty
a. Avoid WWR (Gladon)
b. Disclose hidden dangers, unless danger is open and
obvious
iii. Trespasser
1. Person who has no legal right to be on another’s land and
enters without their consent
2. Duty
a. Avoid WWR
b. Except
i. Discovered in peril (then ordinary care)
ii. Activity vs condition of land
iii. Attractive Nuisance
iv. Footpath rule
1. If the landowner knows people frequent
the area, then the duty reverts to
ordinary care
b. Children
i. Attractive Nuisance Doctrine (Bennett)
1. Trespass foreseeable
2. Landowner knows of danger
3. Child, because of age, cannot protect himself
c. Open and Obvious Danger
i. If a danger is open and obvious to an individual of average
intelligence then there is no need to warn invitees or licensees.
d. Cases
i. Gladon v. Greater Cleveland Regional Transit Authority
ii. Bennett v. Stanley
B. Firefighter Rule
a. Common Law Doctrine
i. Precludes a firefighter from recovering for defendant’s negligence
b. Cases
i. Minnich v. Med-Waste, Inc.
IV. Duties of Medical and Other Professionals

A. Traditional Duties
a. Standard of Care for Medical Professionals
i. Generally accepted medical standards
1. Established by expert witnesses (Walski)
ii. Specialists held to the standards of care for their speciality
1. Means your chiropractor has no duty to refer, although they
should say “this treatment isn’t working”
b. Modified Locality Rules (Vergara)
i. Strict locality Standard of Care
1. Standard of care for that particular town
ii. Modified locality Standard of Care
1. Standard of care for a similar tow
iii. General/National Standard of Care
1. Doctors in the same class
c. Cases
i. Walski v. Tiesenga
ii. Vergara v. Doan
V. Governmental Immunity
A. FTCA
a. Private sector person comparison to demonstrate they would be subject
to liability (Olson)
i. US is liable if, as a private person, they would liable to claimant
in accordance with the law of the place where the act occurred.
b. Sovereign immunity is not waived
B. Feres Rule
a. Injuries incident-to-service are barred (Feres)
i. There is no private person equivalent of running an army
ii. Varying state laws make tort claims murky
iii. There is substantial compensation provided by the Army
C. Discretionary or Basic Policy Immunity
a. Policy decisions can lead to liability, however discretionary decisions
cannot
i. Allocation of resources, such as police force, needs to happen
without fear of a lawsuit -- otherwise they would opt not to run
them (Riss)
b. Special relationships can be an exception (DeLong)
D. Cases
a. United States v. Olson
b. Feres v. United States
c. Riss v. City of New York
d. DeLong v. County of Erie
e. Whisnant v. United States
VI. Nonfeasance
A. No Duty to Act
a. There is no legal responsibility for observing an individual in peril
b. There is no legal responsibility for placing an individual a potential
position of peril, unless physically forced (Yania)
c. Individual assume legal responsibility when they voluntarily assume care
for individual in peril (Mraz)
i. The level of care must only be that of reasonable care, not rescue
B. Exceptions, Qualifications and Questions
a. Causes harm to another person (Podias)
i. Triggers duty to help, even innocently harming
ii. Ordinary care must be used to remedy, not rescue
b. Creates unreasonable risk of harm occurring, innocently or otherwise,
must use reasonable care to ensure harm does not occur (Mraz)
c. Statute
i. E.g. Landlord must maintain door locks
d. Defendant takes charge
e. Special relationship between parties
i. E.g. Bodyguard
C. Cases
a. Yania v. Bigan
b. Wakulich v. Mraz
c. Podias v. Mairs
VII. Duty to Protect Against Third Persons, Loss of

Consortium, Wrongful Death
A. Third Persons
a. Foreseeability is key
b. Tests
i. Specific Harm Rule
1. Landowner must be aware of specific, imminent harm
about to befall individual
2. Not used much
ii. Prior Similar Incidents
1. Evidence of previous crimes on or near the premises
2. Problem: What if you were the first?
iii. Totality of Circumstances
1. Nature, condition, and location, as well as any other
factors, taken into account
2. Problem: Places too much of a burden on business owners
iv. Balancing Test
1. Balances foreseeability of harm against burden of
protection
c. Licensed Medical Professional
i. Factors
1. Foreseeability of harm to the plaintiff
2. Degree of certainty that the plaintiff suffered injury
3. Closeness of connection between defendant’s conduct and
plaintiff’s injury
4. Policy for preventing harm
5. Burden on defendant and community to impose a duty
6. Availability, cost and prevalence of insurance
ii. Credible threat to identifiable person (Tarasoff)
iii. only for mental health professionals
B. Loss of Consortium
a. Economic losses as a result of decedent's death (personal losses or
estate's losses)
C. Wrongful Death
a. Same claim as if decedent lived
b.
D. Cases
a. Posecai v. Wal-Mart Stores, Inc.
b. Tarasoff v. Regents of University of California
c. Washington v. John T. Rhines Co.
d. Chavez v. Carpenter
VIII. Strict Liability

A. No fault liability
a. If you cause a harm, factually and proximately, you are responsible,
despite lack of blameworthy conduct
B. Common Law Strict Liability
a. Vicarious Liability
i. Determine if tort
ii. Determine type of relationship
iii. Determine if tortfeasor acted within scope of employment
iv. Respondeat Superior
1. Employers can be held liable for torts by certain employees
if they were committed within the scope of employment
(Edgewater)
a. The scope of employment is defined as “the theory
that employer could exercise close control over his
employee during the period of their service.”
(Riviello)
b. Independent contractor - Can be identified by a test
which looks at whether the employer can determine
what is acceptable as an end result (independent
contractor) or something more (not an independent
contractor). (DC v. Hampton)
v. Goals
1. Prevention of future injuries
2. Assurance of compensation to victims
3. Equitable Spreading of losses caused by an enterprise
vi. Own fault (employers negligence) si different
vii.Animals
1. wild
a. culplable if harm is from wild nature
2. domestic
a. one bite rule
b. Nuisance
i. Elements
1. Act by defendant
2. That is wantonly or maliciously done
3. Which reduces or limits plaintiff’s enjoyment of the land
ii. Ordinary and common to the land/area
1. Land uses can change; re-zoning can force factory out/let
it in
iii. Reciprocity
1. Live and let live sometimes (e.g. cesspool)
iv. Public vs. private interests
1. Benefits to one party need to outweigh the other, or
through some form of compensation
2. Similarities to Hand formula (no fault, however)
c. Abnormally Dangerous Activities
i. If defendant is engaged in a dangerous activity they are strictly
liable for the repercussions of their activity
1. Common subjects
a. Chemical spills
b. Blasting
ii. Elements/Factors R 520
1. High risk
2. Inability to eliminate risk by ordinary care
3. Uncommon nature of the activity
4. Actions inappropriateness to the place carried out at
5. Extent to which the activity’s value to the community is
outweighed by its dangerous attributes
C. Cases
a. Riviello v. Waldron
b. Fruit v. Schreiner
c. Edgewater Motels, Inc. v. Gatzke
d. District of Columbia v. Hampton
e. Bamford v. Turnley
f. Sullivan v. Dunham
g. Exner v. Sherman Power Construction Co.
IX. Product Liability

A. R §402A
a. Seller in business
b. Defective product
c. Reaches user substantially unchanged
d. Prod. causes physical harm or property damage
B. Elements
a. Product was in defective condition, unreasonably dangerous for its
intended use
b. Defect existed when it is in defendant’s control
c. Defect was the proximate cause of the injury sustained
C. Manufacturing Defect
a. Product departs from expected design
b. Consumer Expectation Test
i.
D. Design Defect
a. Product designed in an unsafe way
b. Consumer Expectation Test
i. It is more dangerous than an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner; or
c. Risk Utility Test
i. if the benefits of the challenged design do not outweigh the risk
inherent in such design
1. Determining whether the design was reasonable to the
circumstances
a. Likelihood of harm
b. Gravity of harm
c. Cost of preventing harm through different design
E. Marketing Defect
a. Failure to warn
b. Negligence issue, not strict liability
c. Breach of necessary warning to reasonable user
d. Warnings serve dual functions
i. Stating object, place, activity is dangerous; or
ii. Suggesting alternative action to avoid danger
e. Defendant is burdened with disproving presumption of causation for the
harm experienced by plaintiff
F. Cases
a. Lee v. Crookston Coca-Cola Bottling Co.
b. Jackson v. Nestle-Beich, Inc.
c. Leichtamer v. American Motors Co.
d. Knitz v. Minster Machine Co.
e. Liriano v. Hobart Corp.
Torts - 608
Section 419
Spring 2013
Brian Thackston
Brief Template
Case
Plaintiff:
Defendant:
Facts
Issues
Holding
Reasoning (Analogies)
Notes
Brief Template
Case
INTENTIONAL TORTS
Introduction; Battery - January 14, 2013
Dobbs 2-11, 14 n.9, 17-34
Prosser v. Keaton
Van Camp v. McAfoos
Snyder v. Turk
Cohen v. Smith
1/16/13 - Defining Intent; Assault (35 -48)
Mullins v. Parkview Hospital
Garratt v. Dailey (35)
White v. Muniz
Stoshak v East Baton Rouge Parish School
Cullison v. Medley
1/23/13 - False Imprisonment; Property Torts; IIED
McCann v. Walmart
School of Visual Arts v. Kuprewicz
GTE
Jones v. Clinton
END OF INTENTIONAL TORTS
AFFIRMATIVE DEFENSES
Class Notes 1/29/13 - Defenses to Intentional Torts
Reading Notes
Class Notes
Peters v. Menard
Katko v. Briney
Brown v. Martinez
Notes 1/30/13 - Defense to Intentional Torts; Introduction to Negligence
Robins v. Harris
Kennedy v. Parrot
Doe v. Johnson
Surocco v. Geary
Wegner v. Milwaukee Mutual
Ploof v. Putnam
Vincent v. Lake Erie Transportation
Class Review
END OF UNIT 1 - START OUTLINING EVERYTHING PRIOR
Notes 2/4/13 - The General Duty of Care
Stewart v. Motts
Bjorndal v. Weitman
Shepherd v. Gardner Wholesale, Inc.
Creasy v. Rusk
Hill v. Sparks
Robinson v. Lindsay
Notes 2/5/13 - Statutory Standards of Care; Breach of Duty - Assessing Reasonable
Care
Martin v. Herzog
O’Guin v. Bingham County
Impson v. Structural Metals
Pipher v. Parsell
Indiana Consolidated Insurance Co. v. Mathew
Notes 2/10/13 - Risk/Utility; Proving and Evaluating Conduct
United States v. Carroll Towing
Thoma v. Cracker Barrel Old Country Store, Inc.
Duncan v. Corbetta
Gift v. Palmer
Closing Thoughts
Notes 2/13/13 - Custom; Res Ipsa Loquitur
The T.J. Hooper
Byrne v. Boadle
Warren v. Jeffries
Notes 2/18/13 - Actual Harm; Factual Cause
Right v. Breen
Hale v. Ostrow
Salinetro v. Nystrom
Landers v. East Texas Salt Water Disposal Co.
Anderson v. Minneapolis St. Paul & Sault Ste. Marie Railway
Summers v. Tice
Notes 2/20/13 - Multiple Tortfeasors
INTENTIONAL TORTS
Introduction; Battery - January 14, 2013
Law scholar: Anna Sholl
Dobbs 2-11, 14 n.9, 17-34

Tort is a wrongful act that is recognized by law as grounds for a lawsuit
Two main theories for justifying tort system

1. Corrective Justice
a. Focuses on the individual
b. E.g. - Shoot somebody, you need to make that family whole
2. Social or Public Policy
a. Focuses on the “good for society”
b. E.g. - Shoot somebody, you need to make sure this doesn’t happen
We can use these two perspectives to distinguish similar cases
Tort Law....
● Tort law is pursued in a civil court
● Tort law overlaps with criminal law in certain scenarios
● Tort law is primarily common law
● Tort law has elements or conditions that must be met
○ These constitute a prima facie case
Prima Facie Case

● The elements required for a tortious action
Procedural posture can have a large impact on a case
Fault
● Three types of torts
Intentional Conduct Negligence Strict Liability (w/o) Fault
Prosser v. Keaton
Plaintiff: Prosser
Defendant:
Facts
● Prosser owned a watch
● Thurlow stole the watch and sold it to Keeton
● Prosser identified the watch
Procedure
● Trial court held that Keeton was liable to return the watch or pay its
reasonable value
● Keeton appealed
Issues
Holding
Van Camp v. McAfoos (27)

Plaintiff: Van Camp
Defendant: McAfoos
Facts
● Defendant ran into the leg of plaintiff, causing damage to the achilles tendon
● Plaintiff alleges that the resulting injury is enough to show that defendant was
negligent and should be liable
Issues
Were the allegations made by the plaintiff enough to sustain a complaint?
Holding
No. The plaintiff did not plead intentionally wrongful or negligently wrongful use of
the tricycle.
When an essential element of the cause of action is missing (fault) then the cause of
action as a whole has not been properly pled. Fault is an essential element of liability
in tort actions (except strict liability), therefore a claim lacking any indication of
fault is insufficient.
Notes
Fault as...
● Causation
○ E.g. Cat jumping into a vase
● Blameworthy conduct
○ Either a) intentional conduct, b) negligence, or c) strict liability
○ E.g. Mark running into Ms. Van Camp
Parents
● No blameworthy conduct attributable to them
Snyder v. Turk (30)
Plaintiff: Snyder
Defendant: Turk
Facts
● Defendant became frustrated with plaintiff during a surgery
● Defendant shoved plaintiffs face into an opening and made sassy remarks
● Trial court sustained a directed verdict for defendant saying that there was no
battery
Issues
Did the unconsented-to touching result in battery?
Holding
Yes. The touching was a battery and the jury should have decided if the intent of the
touching was to offend.
A reasonable mind could conclude from the facts that the touching was battery
Notes
Elements of battery
● contact with the intent to cause harm or offense
● contact results in harmful or offensive contact
Offensive contact
● interferes with a reasonable sense of personal dignity
Cohen v. Smith (30)

Plaintiff: Cohen
Defendant: Smith
Facts
● Plaintiff’s religious beliefs forbade males from touching her naked body
● Defendant, a hospital, promised religious beliefs would be honored
● Male nurse touched plaintiff’s naked body
Issues
Would the touchings by the male nurse constitute a battery claim?
Holding
Yes, the touchings consitute a battery because they were made expressly known to
the defendant and agreed upon.
A battery occurs when an unconsented-to touching occurs, causing harm or offense.
The plaintiff’s request was reasonable, as it was for religious reasons that were known
and agreed to by the plaintiff, so we must go by those standards in terms of what
would be offensive.
Notes
● Reasonable sense of dignity is important
○ Social norms are what we must go on for this
○ If we know religious beliefs, etc. then we must go by those standards (so
long as they’re reasonable)
● Lack of consent can show “offensiveness”
1/16/13 - Defining Intent; Assault (35 -48)

Objective vs. Subjective Standards
● Objective -- standardized, e.g. market price of something
● Subjective - personalized, e.g. value of something to a specific individual
Tort standards are objective

● Judged by a reasonable person in the position of the plaintiff
● E.g. Offensiveness is what a reasonable person would be offended by
Battery requires a touching

● does not need to be flesh on flesh
○ E.g. a bullet
● it must only be associated with a person
○ E.g. yanking paper out of somebody’s hands
Mullins v. Parkview Hospital (32)

Plaintiff: Mullins
Defendant: Parkview Hospital
Facts
● Plaintiff requested privacy during surgery
● Plaintiff crossed out “presence of healthcare learners” from consent form
● Defendant practiced intubation and lacerated esophagus of plaintiff
● Trial court granted summary judgment for defendants, but Court of Appeals
reversed
Issues
Was the plaintiff’s unconsented-to touching a viable claim for battery?
Holding
No, the claim does not satisfy all the elements required for battery.
The claim properly demonstrates the first element of battery, a harmful touching
occurred, but it does not demonstrate that defendant intended to cause a harmful or
offensive contact with Mullins. She certainly did not want to cause an injury and it
couldn’t be offensive because defendant did not know that plaintiff had crossed out
the consent form.
Notes
● Reasonable sense of dignity is important
○ Social norms are what we must go on for this
○ If we know religious beliefs, etc. then we must go by those standards (so
long as they’re reasonable)
● Lack of consent can show “offensiveness”
Garratt v. Dailey (35)

Plaintiff: Ruth Garrett
Defendant: Brian Dailey
Facts
● Defendant, a 5 year old, pulled a chair out from underneath Plaintiff (Ruth’s
version)
● Defendant says that he only meant to use the chair for himself (rather than to
hurt/humiliate her)
● Plaintiff fell and broke her hip
● Lower court dismissed the action
Issues
Did he have substantial certainty that she would sit down and was he substantially
certain that she would fall get hurt?
Holding
Unknown. Remanded for clarification to determine if Brian had knowledge that his
action would cause her to fall and be harmed.
If a claim for battery is dismissed then there should be no question regarding the
intent of the actor. The evidence lacks insight into this, so it should be remanded.
Notes
Intent can be defined in two ways:
● Purpose, either/or
● Substantial certainty
White v. Muniz (37)

Plaintiff: Sherry Muniz - Shift Supervisor
Defendant: Barbara White - Retirement home resident
Facts
● Defendant was diagnosed with severe dementia
● Defendant refused to allow an aid to change her adult diaper
● Defendant lulled the aid into a false sense of security and then struck the aid
when came near to change her
Issues
Does battery require dual intent?
● I.e. - Intending to cause contact AND intended contact to be harmful or
offensive
Holding
Yes, in Colorado, the law requires dual intent and the second prong was not shown in
the case.
It is clear that she intended to hit her, but she lacked the capacity to fully understand
the offensiveness of the contact.
Notes
Items supporting the dual intent of White’s action:
● She intended to hit Muniz (and succeeded), satisfying the first prong
● She a) allowed her to come closer before hitting her, and b) told her to leave
the room after hitting her.
Polmatier v. Russ
● Russ, insane, killed his imaginary Chinese father
● Found guilty on tortious action because he intended to cause harm and knew he
was performing harmful acts, then actually harmed him
Stoshak v East Baton Rouge Parish School (42)

Plaintiff: Stoshak - Teacher
Defendant: East Baton School - School
Facts
● Plaintiff broke up a fight between two students
● Plaintiff was unintentionally struck in the head and knocked unconscious
● Plaintiff needed the case to be battery to collect maximum compensation from
school
● Lower court held in favor of the defendant, stating that plaintiff was not the
victim of from assault and battery.
Issues
If the student who struck the teacher did not intend to strike the teacher, could it be
characterized as assault?
Holding
Reversed. Intent to harm was transferred to the plaintiff, therefore there was an
assault (i.e. intent to harm somebody and an intentional harm).
The doctrine of transferred intent does not allow a tortfeasor to get away scott-free
just because they have bad aim.
Notes
Cullison v. Medley (44)

Plaintiff: Cullison
Defendant: Medley
Facts
● Plaintiff invited defendant’s daughter to house for a coke
● Later that night the family of defendant came over and harassed him
● The family continued to harass him over the next few months
● Appellate Court granted summary judgement in favor of defendants
Issues
Were the actions by the defendants enough to warrant a trial before a jury for
assault?
Holding
Reversed and remanded. The issue of assault is best left to the jury and is not a
matter of law.
Assault is an unconsented-to touching of the mind and damages can be collected from
trauma and distress. It is best left to a jury to decide if actions would arouse in the
mind of a reasonable person a feeling of apprehension that harm or distress may
occur.
Notes
Assault definition
● A touching of the mind, if not the body
● Apprehension of imminent battery
○ Apprehension does not need to be fear -- only awareness/anticipation of
imminent battery
● E.g. Throwing an eraser at a student....
○ If they were aware of it and it missed, it could be assault
○ If they were turned around and not aware of it, it could be a battery
1/23/13 - False Imprisonment; Property Torts; IIED

Words negating battery
● Not an assault
● E.g. “If you weren’t in class I’d give you a hawaiian punch”
Words offering a choice of tortious alternatives

● Assault
● E.g. “Money or your life”
Imminent apprehension
● Not assault (usually)
● “I’m going to punch your lights out next week”
○ You have options -- go to the dean, don’t come to school, etc.
Property Torts
● Trespass to land
● Trespass to chattels
● Conversion
Trespass to Land
● Somebody intentionally steps on the land of another person without permission
○ E.g. Stepping off a sidewalk onto a lawn and back onto the sidewalk - Is
a tort
○ E.g. Person who won’t leave after a party - Is a tort
○ E.g. Swerving your car and ending up in somebody’s land - Is a tort
● Nuisance - Interfering with the enjoyment of your land
○ Different tort
Intentional Infliction of Emotional Distress (IIED)

● IIED is a standalone claim
● Cf. to emotional harm which flows from another claim
Elements of IIED
● Extreme and outrageous conduct
● Intentionally or recklessly
● Causes emotional distress
● The distress is severe
Trespass to Chattel Conversion
● Intentional interference w/ ● Intentional interference to

somebody’s use or possession of personal property that
their to personal property permanently deprives or destroys
● No intention to interfere -- just an the item
intention to touch or hold that
personal property
McCann v. Walmart (48)

Plaintiff: McCann - Customer
Defendant: Walmart - Retail store
Facts
● Customer and family was stopped by Walmart employees when leaving
● Customer was informed children were not allowed in the store because of prior
thefts
● Walmart told customer police was being called
● They were held in a room for 1 hour until a security guard came in and released
them because of mistaken identity
● Lower court awarded McCanns $20,000 in compensatory damages and Walmart
appealed
Issues
Were the McCann’s actually confined?
Holding
Yes. The McCann’s were confined and Walmart is liable for false imprisonment.
The direction to the McCanns, the reference to the police, and the continued
presence of the Wal-Mart employees was enough to induce reasonable people to
believe either that they would be restrained physically or the store was claiming
lawful authority to confine them until the police arrived, or both.
Notes
Elements of false imprisonment
● Intent to confine
● Actually confined
● Boundaries fixed by the actor
● Victim is conscious of confinement
● Victim is harmed (important if unaware of confinement)
Time
● There is no limit on time -- the tort can occur in 1 minute
● The damages you receive will be what the jury determines the loss of time is
School of Visual Arts v. Kuprewicz (57)

Plaintiff: School of Visual Arts - School
Defendant: Kuprewicz - Former Employee
Facts
● Defendant caused volumes of pornographic material and job applications to be
sent to the school
● Large volumes of material caused slow computers (reduced hard disk space and
processing power)
Procedure
Trial court denied motion to dismiss trespass to chattels claim
Issues
Did defendant’s alleged actions a) intentionally, and b) without justification or
consent, c) physically interfere with the use and enjoyment of personal property in
plaintiff’s possession, and d) plaintiff was harmed?
Holding
Yes, the defendant acted with substantial certainty that his actions would interfere
with the plaintiff’s ability to use his property.
If an individual’s actions are done with substantial certainty that the results will
interfere with an individual’s use of property, and the action brings about that
consequence, they are liable for trespass to chattels.
Notes
GTE Southwest, Inc. v. Bruce

Plaintiff:
Defendant:
Facts
● Defendant was beyond the stereotypical boss from hell
● Defendant would regularly terrorize employees through threats and physical
intimidation
● Testimony revealed a variety of bizarre requests made by the defendant,
including standing in a office while he stared and vacuuming offices daily
despite janitorial services
Issues
Was the defendant’s conduct outrageous enough to sustain a claim for IIED?
Holding
Yes, the evidence supports a prima facie case for IIED. The defendant’s conduct was
outrageous, done intentionally, and could reasonably cause severe emotional distress.
Rude behavior generally doesn’t qualify as outrageous for the purpose of IIED, but the
relationship between the parties and the consistent nature of the activities went
beyond a type of management style.
Notes
Management can use tactics like yelling, but this goes well beyond the scope of what
is acceptable.
Jones v. Clinton
Plaintiff: Paula Corbin Jones
Defendant: William Clinton
Facts
● Clinton called Jones to the room
● Made several sexual advances that were turned down
Issues
Did Clinton’s actions constitute IIED?
Holding
No. Summary judgment granted for Clinton. There was no extreme or outrageous
conduct.
● Conduct itself
● Duration - 1x
○ very hard to win IIED claim on an isolated incident
● No threats
○ could feel an implied threat -- dialogue at the end and friendliness with
her supervisor
○ could not be an implied threat -- saying he would help her if she got in
trouble, etc.
● Relationship between parties
○ Not direct supervisor
● Vulnerability of the parties
○ sensibilities of the party who the actions were against
Notes
Class Notes 1/29/13 - Defenses to Intentional Torts

Reading Notes
Defenses to Intentional Torts
● Self-defense
○ So long as the threat assessment is reasonable and the response is
reasonable
● Arrest and detention
○ Peters v. Menard; owner accuses man of stealing, who then runs and
drowns in a river; state statutes made the actions defensible under
intentional tort liability
● Defense and repossession of property
○ Katko v. Briney; spring gun that would knowingly seriously harm or kill
that was used to defend possessions and with no threat to life
○ Brown v. Martinez; children were watermelon patch thieves and a
farmer’s warning shot went through a child’s leg
● Discipline
● Observing Privileges
Class Notes
Two Types of Defenses

𝚷’s conduct circumstances outside the parties’
control
I.e. - I did that because they did this.
I.e. - Yes, that happened, but this
happened and that’s why it’s okay.
Self defense
Arrest & Detention
Defense of Property
Self Defense
Principle of SD
Only do as much as you do to protect your property bearing in mind that we value
human life more than property.
Use of Force
● You can use the same amount of force that is being used against you
● Cannot use deadly force to counter non-deadly force
○ E.g. - Somebody punches you, you stab them; this is not self defense
● Cannot use self defense in response to provocation
● Reasonable, but mistaken belief that force is required is self defense;
privileged defense
○ Your enemy has a moment of clarity and comes over to hug you
● Cannot use self defense to rationalize retaliation
○ e.g. somebody punches you in the nose then walks away; when their
back is turned you punch them
● White Knighting. Somebody punches your friend, so you punch them.
Arrest and Detention

● privilege to arrest or detain
● must catch the person in the act
Peters v. Menard (61)

Plaintiff: Peters - Thief
Defendant: Menard - Store Owner
Facts
● Plaintiff was observed placing an unpaid drill set into his car
● Security officers confronted him and he told them he didn’t know what they
were talking about
● When asked to come back in the store, he ran
● Two guards chased him off the premises and he ended up drowning a river
Issues
Were the actors under control of the store privileged in their attempt to detain the
plaintiff?
Holding
Yes. A Wisconsin statute gives owners civil and criminal immunity when attempting to
detain for good cause to believe there was a theft. Summary judgment for defendant
granted.
Statute gives merchants an immunity from civil or criminal liability, provided there is
good cause, the actions were reasonable, and the length of detainment was
reasonable.
Restatement only concerns itself with “on the premises” activity, however statute can
broaden that view. Wisconsin’s statute regarding this (state from the case) is broader
than most all other states...
Notes
Katko v. Briney (62)

Plaintiff: Katko - Thief with a blown off lower torso
Defendant: Briney - Homeowner
Facts
● Defendant inherited unoccupied farmhouse
● Property was regularly broken into
● Couple installed a spring gun
● Spring gun shot people collecting cans
Procedure
● Intruder sues homeowners for battery
● Landowners raise an affirmative defense - defense of property
Issues
Was the homeowner’s use of a gun to defend their property reasonable?
Holding
No. A landowner cannot use deadly force to protect property.
There was no proportionality to it. Additionally, there was nobody home, so there was
no threat to human life.
Notes
Brown v. Martinez (64)

Plaintiff:
Defendant:
Facts
● Defendant had a watermelon patch that was being pilfered regularly
● In an effort to deter thieves, he waited outside and shot in their direction to
scare them
● Unbeknownst to defendant, a child was there and was shot
● Defendant raises an affirmative defense for defending property -- privileged to
defend property.
Issues
Was the defendants action reasonable in the circumstances?
Holding
No, the use of firearms to defend his property was unreasonable. The landowner’s use
of the firearm made him liable for the repercussions.
If you use deadly force, or force that is likely to cause bodily injury, to protect
property, that is not reasonable. If a bad outcome results, you cannot claim the
privilege -- it’s done at the owner’s peril.
Notes
Hypo - He comes out to the porch and threatens that he has a weapon.
● That could be an assault. However, it may be privileged defense for the tort.
You can threaten to use more force than you’re actually privileged to use.
Notes 1/30/13 - Defense to Intentional Torts;

Introduction to Negligence
Two Types of Defenses
𝚷’s conduct circumstances outside the parties’
control
I.e. - I did that because they did this.
I.e. - Yes, that happened, but this
happened and that’s why it’s okay.
Self defense Public Necessity
Arrest & Detention Private necessity
Defense of Property
Defense of Consent
Defense of Consent
● actual consent vs. apparent consent
○ actual consent
■ person agrees to contact
○ apparent consent
■ appears there is consent to a reasonable person
○ both are sufficient to invoke defense of consent
● Berwyn v. Austin - Hypo
○ Apparent consent
○ Consent is never to the outcome; it’s a consent to the touching
○ Consent is a defense because it affects the burden of proof
■ Otherwise, the plaintiff would have the burden of proof; it would
be an element of battery
● Consent can occur in two ways
○ express
■ saying yes
○ implied
■ conduct indicating a yes
● Types of consent defenses
○ lacks capacity
○ outside the scope of consent
○ obtained through fraud or mistake
Necessity
● Differentiating between public and private necessity
○ depends on the person taking action
■ decision for an individual/own benefit -- private
■ decision for the community -- public
Robins v. Harris (67)

Plaintiff:
Defendant:
Facts
● Plaintiff was an inmate at a prison
● Defendant was a prison guard and forced the plaintiff to perform sexual
activities
● Plaintiff contests the defendants use of the consent defense
Issues
Did the inmate have the ability to consent to the touching?
Holding
No. The inmate did not have the ability to say “yes”.
If you do not have the ability to say “no”, then your ability to say “yes” means
nothing.
Notes
Kennedy v. Parrot (70)

Plaintiff:
Defendant:
Facts
● Plaintiff consented to an appendectomy
● Surgeon found cysts during surgery and punctured them
● Plaintiff developed phlebitis in her leg
Issues
Were the doctor’s actions outside the scope of consent?
Holding
No. That was implied consent. The consent was broader than just the appendectomy.
Doctor’s need to be able to work without fear of lawsuit.
Notes
Doe v. Johnson (71)

Plaintiff: Jane Doe
Defendant: Magic Johnson
Facts
● Plaintiff had sex with Magic
● Plaintiff contracted HIV
● Plaintiff sued and Magic raised a consent defense.
Issues
Was the plaintiff’s consent to the sexual activities sufficient to raise a consent
defense?
Holding
No. There was no consent to contracting HIV.
Knowing, or reasonably should have knowing, that you have a STI is a battery. The
consent needs to be on true information and there was a duty to disclose.
Notes
Surocco v. Geary (74)

Plaintiff:
Defendant:
Facts
● Fire is raging through a city, leaping from house to house
● Plaintiff was in the midst of removing belongings when the Alcalde of San
Francisco told him to stop
● Alcalde of San Francisco blew up plaintiff’s house to stop the spread of the fire.
Issues
Can the Alcalde of San Francisco raise a defense of necessity?
Holding
Yes. The public policy validated the “taking” of the good of the whole city.
A house which would spread the fire becomes a nuisance, which is lawful to abate. In
this instance, the private rights of the individual yield to the greater interests and
convenience of society.
Notes
Wegner v. Milwaukee Mutual (75)

Plaintiff:
Defendant:
Facts
● Criminal was chased into home of innocent individual
● Police surrounded the house before throwing flash bangs, smoke grenades, etc.
and made a general mess
Issues
Did the police department’s actions constitute a “taking”, entitling plaintiff to
compensation?
Holding
Yes. The takings clause in the Minnesota Constitution entitle the plaintiff to
compensation resulting from the takings for a public good.
The case centers around basic policy considerations of fairness and justice; it would
be unjust to allocate the entire risk of loss onto homeowners for the good of the
public.
Notes
Ploof v. Putnam (77)

Plaintiff:
Defendant:
Facts
● Family was sailing when a violent tempest arose
● Family moored boat on defendant’s dock
● Defendant had servant unmoor the boat
● Family sustained injuries and boat was damaged
Issues
Did the defendant have a duty to allow the family to keep their boat there?
Holding
Yes. The defendant was required to sacrifice personal property to save the life of
another.
Necessity took away the defendants ability to eject them from the land.
Necessity also overrode the family’s tortious liability
Notes
Vincent v. Lake Erie Transportation (78)

Plaintiff:
Defendant:
Facts
● plaintiff was unloading the boat when a violent storm descended
● keeping boat docked caused major damage to the dock
Issues
Was the defendant privileged in keeping his boat attached to the dock during the
violent storm?
Holding
No, the defendant was not privileged. The plaintiff’s more valuable dock was
damaged during a divine event, but that doesn’t excuse the defendant from
compensating the plaintfiff for his loss.
Notes
Private necessity does not exclude complete liability. It is not a complete defense.
Class Review
Consent
● Lack of capacity
● Scope of
● Crime
● Revocation
Necessity
Disaster often creates necessity
● Public necessity
○ Complete defense
● Private necessity
○ Partial defense
○ No liability for the technical invasion of the other party’s rights, but
there is liability for any actual damage
● Differentiating between public and private necessity
○ Who is making the decision and who benefits from the decision
Notes 2/4/13 - The General Duty of Care
Elements of a negligence claim:
1. Defendant owed the plaintiff a legal duty;
a. Did the actor owe a duty?
b. If so, what standard of care applied to the actor’s conduct?
2. Defendant, by behaving negligently, breached that duty;
3. Plaintiff suffered actual damage;
4. Defendant’s negligence was an actual cause of this damage
5. Defendant’s negligence was a proximate cause of this damage
Intentional Torts vs. Negligence

● requisite intent is often all that's needed to be held liable for intentional torts
● only liable for negligence if a harmful outcome occurs
● deterring wrongful conduct
○ intentional torts are acts of volition -- purposefully done
○ negligence -- lapse of judgment
Stewart v. Motts (85)

Plaintiff: Stewart - Injured party
Defendant: Motts - Tortfeasor
Facts
● Defendant owned an auto repair shop
● Plaintiff offered to help repair a fuel tank
● Plaintiff poured gasoline in the carburetor and it exploded on start, burning
plaintiff
● Appeal from verdict for defendant in regards to jury instructions
Issues
Does the level of care required under the reasonable care standard fluctuate
according to the danger present?
Holding
Yes, circumstance can dictate the level of care that should be used. The definition of
negligence accounts for that, however, by demanding “reasonable care”.
There is one standard of care -- reasonable care. The standard of care will vary
depend on circumstances.
Notes
Bjorndal v. Weitman (87)
Plaintiff:
Defendant:
Facts
● Plaintiff was driving to provide roadside assistance for her father
● Plaintiff saw her father on the side of the road and suddenly slowed and turned
left
● Defendant following behind her swerved to avoid her and crashed into her
because he did not know she was turning left
Issues
Was the jury properly instructed on the notion of duty when given the “emergency
instruction”?
Holding
No. The jury is no longer allowed to be given the “emergency situation” instructions.
There is one standard of care -- reasonable care. The standard of care will simply vary
depending on circumstances.
Notes
Sudden Emergency level of care suggest a lower standard of care is required
Shepherd v. Gardner Wholesale, Inc. (91)

Plaintiff:
Defendant:
Facts
● Plaintiff suffered from cataracts and head poor eyesight
● Plaintiff tripped over sidewalk slab sticking out
Issues
Is the plaintiff held to the standard of care for a non-sight impaired person?
Holding
No, the plaintiff’s standard of care is reasonable care for a person with cataracts.
Standard of care for disabled person is altered to be reasonable care by an impaired
person.
● Not a lower standard of care or a higher one
● We take a person’s physical disability when determining reasonable standard of
care
Notes
Creasy v. Rusk (92)

Plaintiff: Creasy - Injured nurse
Defendant: Rusk - Patient
Facts
● Defendant developed Alzheimers
● Defendant was placed in a nursing home
● Defendant was easily agitated and hit a staff member one night
Issues
Is the plaintiff’s standard of care lowered because of his mental infirmity?
Holding
No, the standard of care for a mentally disabled person remains the same.
Public policy hold individuals with mental deficiencies to a standard of care equal to
that of a fully functioning person. This is to a) allocate losses between two innocent
parties, b) provides incentive to those responsible for the mentally infirmed, c)
removes inducements to feign a mental disability and escape liability, and d) removes
administrative burdens of determining the impact of the disability on the individual’s
liability.
Notes
Hill v. Sparks (95)

Plaintiff:
Defendant: Sparks - Earth mover driver
Facts
● Defendant was an operator of an earth-moving machine with several seasons
experience
● At an exhibit, he instructed his sister to stand on the ladder
● The earth mover hit a mound of dirt and this caused the sister to be thrown in
front of the wheel, where she was run over and kileld
Issues
Should an expert be held to a higher standard of care than a non-expert?
Holding
Yes, if they’re able to aptly use their experience then they are required to under
reasonable circumstances.
A reasonable person brings all of their knowledge to bear in their actions. Reasonable
standard of care only goes up -- the above average individuals (based on attention,
perception, knoweldge, memory, intelligence, and judgment) are required to use
these superior qualities under the circumstances.
Notes
Robinson v. Lindsay (97)

Plaintiff:
Defendant:
Facts
● 11 year old was injured while riding on a snowmobile with a 13 year old
● Appeal from order of new trial in negligence action
Issues
Should a child be held to a reasonable standard of care for somebody his age or for
the standard of care for an adult?
Holding
A child is held to a reasonable standard of care for a child, however, if they are
performing an adult activity (e.g. something involving a high powered motor) they are
held to an adult standard of care.
Children are held to the children’s level of care during children’s activities. When
performing adult activities, they are held to the standard of care for adults. Our
social policy of “children will be children” needs to be modified sometimes, however.
Notes
Think about situations that are adult vs. children
Notes 2/5/13 - Statutory Standards of Care; Breach of

Duty - Assessing Reasonable Care
One standard of care -- reasonable care
● one yardstick not multiple (e.g. emergency circumstance standard of care,
extraordinary standard of care, etc.)
Individual characteristics are generally disregarded

● Mental disability
Superior characteristics are factored in

● Doctor
● Specialist
Children’s standard of care
● they lack experience, knowledge, etc.
● they are held to a lower standard of care, so long as they’re engaging in a
child’s activity
● engaging in adult activities, they can be held to the adult standard of care
(E.g. Robinson and the snowmobile)
These cases are on the line between duty and breach
If a statute establishes a standard of care, breach of that duty can qualify as

negligence.
Martin v. Herzog (102)

Plaintiff: Martin
Defendant: Herzog
Facts
● Defendant was driving at night, crossed the center line on a curve, and struck a
buggy, causing death to the driver
● Defendant argued that plaintiff was negligent for failing to heed a statute that
required lights on all vehicles at night
● Trial court ruled in favor of plaintiff.
● Appellate court reversed and ordered a new trial
Issues
Was the plaintiff culpable for contributory negligence?
Holding
Held, the plaintiff was culpable for contributory negligence.
The violation of the statute is negligence per se, not evidence of negligence. The
statute clearly defines the duty and not abiding by the statute is an evident breach.
Notes
O’Guin v. Bingham County (104)
Plaintiff:
Defendant:
Facts
● 2 children were killed while playing in a landfill
● attendants were not on duty that day
● area was not fenced off
Issues
Was the defendant negligent per se?
Holding
Yes, the defendant’s lack of compliance with the statute regarding landfills rendered
it in breach of it’s duty and liable for negligence.
In order to replace common law standard of care, the statute or regulation must:
1. The statute or regulation must clearly define the required standard of conduct
2. The statute or regulation must have been intended to prevent the type of harm
the defendant’s act or omission caused
3. The plaintiff must be a member of the class of persons the statute or
regulation was designed to protect
4. The violation must have been the proximate cause of the injury
The court found that 1) conduct required by the statute was fence or barricade when
an attendant was not on duty, 2) the statute was intended to protect “human health”,
3) the plaintiff was a member of the protected class, because it was meant to benefit
unauthorized people who came into the landfill, and 4), the injury was caused by the
violation of the duty.
Notes
Really stretching the meaning of the statute.
Impson v. Structural Metals (109)

Plaintiff:
Defendant:
Facts
Defendant struck a left-turning vehicle while attempting to pass within 100 feet of an
intersection.
Issues
Were any of the driver’s excuses a valid defense for his negligent actions?
Holding
No, his excuse, ignorance in forgetting that it was there, was not a valid defense for
violating the statute and will not excuse his negligence.
The excuses for negligence stated in the Restatement do not match the events in the
case. There must be ordinary care involved in any of the excuses able to defeat
negligence per se and the driver did not display that when attempting to pass near
the intersection.
Notes
Pipher v. Parsell (114)

Plaintiff:
Defendant:
Facts
● 3 teenagers in a car
● 1 of the teenagers yanks the wheel twice, with the second incident causing an
accident
● The other passenger sues the driver
Issues
Does Parsell breach his standard of care to the other passengers by failing to prohibit
the wheel jerking from happening a second time?
Holding
Yes, he owed a standard of care and he breached it.
The defendant could have foreseen that it would happen again. He could have taken
actions to prevent it and he failed to do so.
Notes
Indiana Consolidated Insurance Co. v. Mathew (117)

Plaintiff: Indiana Consolidated Insurance Co. - Insurance Co.
Defendant: Mathew - Brother to policy owner
Facts
● Defendant filled lawnmower with gas and let it sit for twenty minutes
● Lawnmower caught on fire when turned on inside the garage
● Defendant tried to put the fire out but was unable
● Defendant left the lawnmower in the garage, which eventually burnt down in
the whole freakin’ mess
● Plaintiff argued that the defendant a) recklessly poured the gasoline and b)
was negligent in failing to push the lawnmower out of the garage
Issues
Did the defendant behave negligently (fail to exercise reasonable care/breach) when
a) filling the gas tank, b) starting the lawnmower in the garage, or c) failing to push
the lawnmower out of the garage?
Holding
No. a) The defendant only filled the gas tank ¾ full and waited 20 minutes before
starting the mower. b) The defendant also had no need to not start the lawnmower in
the garage. c) Failing to push the lawnmower out was not a breach of duty because
the risk of it blowing up in his face was not worth potentially losing his life to prevent
the spread of the fire.
Weighing the probability of issue vs. the burden of prevention, we see that the
individual acted reasonably in light of circumstances. There is one standard of care --
reasonable care -- and defendant acted reasonably in his attempt to minimize the
risks.
Notes
If this went to a jury, the defendant may want to request “sudden emergency”
instructions.
Notes 2/10/13 - Risk/Utility; Proving and Evaluating

Conduct
Negligence can be used for a) the tort of negligence, or b) the breach of a duty (i.e.
behaving negligently).
United States v. Carroll Towing (127)

Plaintiff: United States -
Defendant: Carroll Towing - Tug boat company
Facts
● Tug boat (owned by Carroll Towing) allowed a barge (owned by Conner's)
containing flour drift out and strike another craft
● The barge containing the flour overturned and sank
● The bargee (man in charge of barge) had left the vessel for about 21 hours
● Court is determining the extent to which the barge company's (Conner's)
negligence reduced Carroll Towing's liability
Issue
Was the Connor's company contributorily negligent in allowing the bargee to be away
from the ship reason enough to reduce their recovery from Carroll Towing?
Holding
Yes. It was a fair to require Connor's to have a bargee on board during working hours
of daylight, when the incident occurred.
Reasoning
Breach of duty liability can be expressed in the equation B < PL
1. P - The probability of negative consequence; P ship will break away
2. L - The injury; the gravity of the injury the ship sustained (or caused?)
3. B - The burden of adequate precautions.
Judge Learned Hand felt that the burden of having a bargee on board (the B), who
was absent without any excuse, was less than the foreseeability of an incident and
the extent, or gravity of that incident.
Notes
● Judge L. Hand assumed a duty was owed to the defendant
Thoma v. Cracker Barrel Old Country Store, Inc. (140)

Plaintiff: Thooma - Patron
Defendant: Cracker Barrel - Restaurant
Facts
● Plaintiff slipped and fell on liquid in a Cracker Barrel restaurant
● Trial court granted defendant’s motion for summary judgment
Issues
Did the plaintiff provide enough evidence demonstrating that the restaurant created
or had actual/constructive knowledge of a dangerous condition, allowing her to
defeat summary judgment?
Holding
Yes, the plaintiff supplied enough circumstantial evidence to go to the jury.
Plaintiff needed to show that the restaurant a) knew (actual knowledge)/should have
known (constructive knowledge), or b) created the spill that was on the ground.
You can draw inferences favorable to the plaintiff from the circumstantial evidence:
● spill near the kitchen caused by employee
● patron created spill
Additionally, you can draw the inference that the spill was there for at least 15
minutes, so the employer should had constructive knowledge.
This was a motion for summary judgment, so despite Cracker Barrel noting that there
are plenty of other reasonable inferences that could be drawn, the facts need to be
weighed in favor of the non-moving party.
Notes
Classic slip-and-fall case
Duncan v. Corbetta (144)

Plaintiff: William C. Duncan - Injured party
Defendant: Corbetta - Homeowner
Facts
● Exterior stairway was built with non-treated lumber
● Top stair collapsed
● Non-treated lumber was fine according to statute
● Building custom was to use pressure-treated lumber
Issues
Is the defendant liable for negligence when failing to meet the customary standard of
care?
Holding
No. Judgment affirmed. While it is established that the industry custom can create a
standard of care above statutory requirements, the homeowner had no role in the
construction of the stairwell.
What usually is done may be evidence of what ought to be done, but what ought to be
done is set by the standard of reasonable evidence, whether it is usually complied
with or not.
Notes
Gift v. Palmer (136)
Plaintiff:
Defendant:
Facts
● Driver saw two kids sitting on the curb
● Driver thought he hit a speed bump but stopped when he saw the mangled body
of the child behind him
Issues
Did the driver breach the standard of care?
Holding
Not in the book; believe it was determined that a harm in and of itself is not enough
to prove negligence.
The mere happening of an accident is not evidence of breach. Bad outcomes can
happen even when people exercise ordinary care.
Notes
Because the plaintiff cannot prove (by a preponderance of evidence) what happened,
plaintiff cannot prove a breach occurred.
Closing Thoughts
3 Takeaways
● B < PL; Burden should be less than the probability of injury, if there is to be a
breach of duty
● Each element of a prima facie negligence claim must be proven by a
preponderance of evidence (e.g. direct--testimonial, circumstantial--skidmark
tests, etc.)
● The mere happening of an accident is not always evidence of breach, although
there are exceptions to this rule
Notes 2/13/13 - Custom; Res Ipsa Loquitur

Inferences
● Two types of inferences that jurors can draw:
○ Evaluative
The T.J. Hooper (145)

Plaintiff:
Defendant:
Facts
● Two barges (No. 17 and 30) were being towed by two tugs (Montrose and
Hooper)
● The barges and the tugs were lost in an easterly gale
● Cargo owners sued the barge owners and the barge owners sued the tug owners
● Owner of the tug filed a petition to limit his liability
● Lower court found the vessels to be unseaworthy because they lacked radios to
be warned of the impending storm
Issues
Does the industry custom of not having radios insulate the defendant from some of
the liability?
Holding
No, the industry does not get to set the standard of care.
Industry custom can be evidence of what ordinary care should be, but it is not
dispositive.
Notes
Industry custom is something that parties may look to in trying to prove what the
standard of care requires.
● The plaintiff can introduce evidence that shows the defendant may not have
met the industry standard of care
● The industry won’t establish a standard of care won’t establish ordinary care,
however
Byrne v. Boadle (147)

Plaintiff:
Defendant:
Facts
● Plaintiff was walking outside of a shop when a barrel of flour rolled out of a
warehouse fell on his head, rendering him unconscious
Issues
Do the circumstances allow the plaintiff to advance his negligence claim?
Holding
Yes, the plaintiff should be allowed to bring the case to the jury.
Some things speak for themselves in terms of negligence -- res ipsa loquitur.
Notes
Res ipsa is used for a very small number of cases -- only when negligence is the most
likely explanation.
Res ipsa only allows the plaintiff get to the jury. The plaintiff also still must prove the
remaining elements for negligence.
Cf. Gift v. Palmer: In car accidents, there are other inferences that can be drawn. In
Byrne, a barrel falling out the window most likely occurred because of negligence.
Res Ipsa Loquitur Tests

● Test 1 - Eaton v. Eaton, Common Law Test
○ Accident would not occur w/o negligence
○ Instrumentality that caused accident was under 𝚫 control
○ 𝚷 didn’t cause
● Test 2 - Restatement (2d)
○ Absence of negligence
○ Other causes or conduct of 𝚷 or 3rd party are ruled out
○ Within scope of 𝚫’s duty
Warren v. Jeffries (153)

Plaintiff:
Defendant:
Facts
● defendant gave mom keys to go to the store
● kids went to the car and climbed in back seat
● closing the door and a clicking sound happened
● car rolled back and older brother opened the door and instructed the children
to jump out
● Terry Enoch tumbled forward under the wheel and was crushed by the wheel
Issues
Does res ipsa loquitur apply where negligence of the defendant is not the only
reasonable explanation for an occurrence?
Holding
No. Res ipsa loquitur does not apply when negligence of the 𝚫 is not the only
reasonable inference that can be drawn from the occurrence.
The case lacks one of the prerequisites of a res ipsa loquitur case -- the
instrumentality must be solely under the control of the defendant.
Notes
Car was never inspected so on appeal, the facts had to be considered as they were.
They couldn’t look into mechanical failures to rule them out.
Notes 2/18/13 - Actual Harm; Factual Cause

Right v. Breen (163)
Plaintiff:
Defendant:
Facts
● Plaintiff was sitting in an automobile at a red light when struck from behind by
defendant
● Minor vehicle damages and no physical damage was reported
● Plaintiff later brought claim for damages for injury from defendant’s
negligence
Issues
Does negligence require proof of actual damages?
Holding
Yes. A negligence claim requires proof of actual damages.
Injuries suffered by the plaintiff were more likely the result of one of the five
previous accidents they had been in. Nominal damages are a deterrent, which makes
sense for intentional torts, but would not function as a deterrent for negligence which
is not intentionally done.
Notes
Compensatory damages are meant to compensate.
● Economic damages
● Non-economic damages
○ pain and suffering
○ loss of enjoyment of life
Punitive damages are meant to punish.
Hale v. Ostrow (165)

Plaintiff:
Defendant:
Facts
● Plaintiff was walking home from a bus stop
● Plaintiff was forced to leave the sidewalk because bushes had extended too far
from an individual’s lawn
● When stepping off the curb she slipped on a chunk of concrete, fell to the
ground and crushed her hip
● The route plaintiff was walking on was unfamiliar to her because she had taken
a different bus
Issues
Is a defendant’s action a cause in fact of the plaintiff’s harm if the harm would not
have occurred but for the defendant’s action?
Holding
Yes. Factual causation is established by asking, “but for the defendant’s negligence,
would the harm have occurred?”
A defendant’s actions don’t need to be the sole cause, but if they’re a contributing
factor then they’re a factual cause of the harm.
Notes
Defendant’s breach only has to be a cause, not the cause, to qualify as factual cause.
But-for test is the anchor for factual cause.
Salinetro v. Nystrom (167)

Plaintiff:
Defendant:
Facts
● Plaintiff was in a car accident and needed xrays on lower back and abdomen
● Plaintiff was unknowingly pregnant during the time of xrays
● Plaintiff visited gynecologist, who informed her that she was pregnant and
complications had occurred from the xray
Issues
Will a party be liable for negligence only if such conduct causes the injury?
Holding
Yes, a defendant will be liable if their negligence was a contributing factor to a harm
that could have otherwise been avoided, but for it occurring. In this case, however,
the harm may have occurred regardless of the negligence.
You need to be able to connect the breach and the harm. The doctor’s negligence was
not the cause of the harm to the child -- it would have happened whether or not the
doctor was negligent.
Notes
Notes 2/20/13 - Multiple Tortfeasors

When we can apportion fault according to causation, we do.
● There are:
○ Divisible injuries
■ E.g. - If A breaks C’s arm, and B break’s C’s foot, A is liable for
damages to the arm and B is liable for C’s foot
○ Indivisible injuries
Fault Apportionment Rules
1. Joint and several liability
● In these states, can only recover the extent of the injury
○ E.g. C is injured passenger in accident where A & B are equally
responsible; C can recover from either or both, if one of them, then that
individual can then sue for contribution from the other
2. Proportionate Share Liability

● Assesses blameworthiness
○ E.g. A is 80% responsible and B is 20% responsible for total damages
Determine cause first

● doctor who sloppily mended arm didn’t cause original break, can’t be held
liable
Landers v. East Texas Salt Water Disposal Co. (170)

Plaintiff:
Defendant:
Facts
● Plaintiff owned a lake stocked with fish
● Two salt water disposal lines were on both sides of the property
● Both lines ruptured and the fish ended up dying
Issues
If harms independently caused cannot be identified, does the tortfeasor escape
liability?
Holding
No. Existing case law is being overruled. When multiple tortfeasors create an
indivisible injury, they are held jointly and severally liable.
It is not equitable for the tortfeasors to escape liability. The plaintiff should be able
to bring action independently or together.
Notes
This created a causation problem -- it would have happened from either one of the
negligent acts. Because they happened together, however, they labeled them both as
the factual cause.
Anderson v. Minneapolis St. Paul & Sault Ste. Marie Railway

(171)
Plaintiff:
Defendant:
Facts
● Plaintiff’s property was burned in a fire
● One of the fires was negligently started by a railroad company
● The other fire was caused by unknown, possibly non-negligent means
Issues
Can the defendant be found liable despite it being impossible to determine if the fire
they started was the one that actually burnt the plaintiff’s land?
Holding
Yes, the defendant can be held liable if it is determined that their actions were a
substantial cause for the harm sustained by the plaintiff.
The court used a substantial factor test. The defendant’s fire was a substantial factor
contributing to the loss of the plaintiff’s property.
Notes
Summers v. Tice (175)

Plaintiff:
Defendant:
Facts
● Plaintiff and defendants were out hunting
● Defendants shot for a quail, which was in the direction of the plaintiff, who
ended up getting hit in the face
● It was unknown which tortfeasor caused the actual harm
Issues
Can the defendant’s be liable if it cannot be determined which actor’s negligence was
the actual cause of the harm?
Holding
Yes, it is equitable to hold both defendant’s liable and shift the burden of disproving
the claim unto them.
Although both defendants were negligent, only one caused the harm. Determining
that is impossible, but that doesn’t mean that they are both excused from liability;
it’s more equitable to hold them both accountable and shift the burden their way so
they can duke it out.
Notes
Notes 2/25/13 - Proximate Cause
Medcalf v. Washington Heights Condominium Ass’n, Inc. (187)

Plaintiff:
Defendant:
Facts
● Plaintiff was visiting friend’s apartment
● Buzzer was broken so friend had to manually let plaintiff enter
● While waiting to be let in, a mugger mugged plaintiff
● Plaintiff brought a claim against apartment association
Issues
Was defendant’s failure to maintain the buzzer a proximate cause of the plaintiff’s
harm?
Holding
No, the failure to maintain was not the proximate cause as it was not foreseeable by
defendant because it was outside of the scope of risk contemplated.
The defendants could not reasonably foresee that their failure to maintain the buzzer
would be substantial incentive for the commission of a violent criminal act. The
purpose of a buzzer is convenience, not protection.
Notes
Abrams v. City of Chicago (189)

Plaintiff:
Defendant:
Facts
● Plaintiff was having contractions and requested an ambulance
● Hospital refused the ambulance because the contractions were too far apart
● Friend opted to drive plaintiff to the hospital
● Friend also opted to drive through a red light and was smashed into by a
speeding driver who was drunk and on cocaine
● Plaintiff brought a claim against the hospital stating that their failure to
provide an ambulance was a (proximate) cause of her injuries
Issues
Was the hospital’s refusal to send an ambulance the proximate cause of plaintiff’s
injuries?
Holding
No, the injuries were outside the scope of risk considered by the responder who
decided against sending the ambulance.
The defendant would not have contemplated a high, drunk driver slamming into the
plaintiff. That was beyond the scope of the risk, severing the chain of liability.
Notes
Palsgraf v. Long Island Railroad Co (190)

Plaintiff:
Defendant:
Facts
● Plaintiff was standing on the railroad platform after purchasing a ticket
● A man on the other side of the platform tried to hop on the train as it was
pulling away
● A guard shoved him onto the train as he was falling backwards off of it
● The shove caused him to drop a covered package containing fireworks
● The fireworks fell under the wheel of the train, exploded, and knocked scales
over onto the plaintiff on the other side of the platform
Issues
Was the defendant a proximate cause for the injuries sustained by the plaintiff?
Holding
No, the plaintiff’s injury was not a foreseeable risk. When exercising reasonable care
and ordinary vigilance, it was impossible for them to have contemplated the events
that unraveled eventually causing injury to the plaintiff.
Proof of negligence in the air, will not do. The conduct of the guard was wrong in
relation to the package holder, but not the plaintiff. The plaintiff was outside of the
range of apprehension, so she was outside the scope of risk. This does not mean that
if a harm takes an unexpected path, the defendant won’t be held liable, however.
Notes
Hughes v. Lord Advocate (198)

Plaintiff:
Defendant:
Facts
● Defendant left an uncovered manhole unattended during a tea break
● Plaintiffs, two boys, took a kerosene lantern found nearby and began playing in
the manhole
● After leaving the manhole, the plaintiffs accidentally knocked the lantern into
the hole causing an explosion
● The explosion somehow led to one of the boys falling into the hole, resulting in
serious burns
Issues
Was the harm outside the scope of the risk because the manner in which it occurred?
Holding
No, the harm was within the scope of the risk, despite the unusual and
uncontemplated way in which it occurred.
The harm occurred in an unusual manner, however, it was not the result of a new and
unexpected factor. Kerosene is a dangerous material that may result in burns, which
was the harm experienced by the plaintiff. Even if the exact way a harm comes about
is unforeseeable, it does not mean the accident itself is unforeseeable.
Notes
Doughty v. Turner Manufacturing Co. LTD. (199)

Plaintiff:
Defendant:
Facts
● Defendant’s processing plant used vats of molten liquid
● Covers for the vats had to often be removed and replaced as part of the
process
● A worker knocked one of the lids into the vats one day
● Several minutes later, the vat exploded, spewing the molten liquid and injuring
the plaintiff
Issues
Was it a foreseeable risk that the liquid would be ejected from the vat if the lid were
to fall inside?
Holding
No, the harm was not the result of a foreseeable risk, rather it was the result of a
new and unexpected factor.
The lids were intended to protect against the foreseeable risk of splashing of the hot
liquid. In their absence, it was not the splashing that they safeguarded against which
caused the injury, rather, it was an unexpected chemical reaction that was the result
of the lid falling into the vat and no longer acting as a means of protection.
Notes
Hammerstein v. Jean Development West (201)

Plaintiff:
Defendant:
Facts
● Plaintiff, an elderly man who was diabetic, was a guest staying on the second
floor of a hotel that knew about his infirmity but was unable to give him better
accommodations (e.g. on the ground floor)
● In the morning a fire alarm went off and the plaintiff was forced to walk down
several flights of stairs
● While walking down the stairs, he twisted his ankle, got a blister, and
eventually ended up with a gangrenous infection as a result of his diabetes
● The fire alarm was known to erroneously sound and had never been corrected
Issues
Was the faulty fire alarm a proximate cause for the plaintiff’s injury?
Holding
Yes, it is foreseeable that a malfunctioning fire alarm would bring about harm to one
of the guests at the hotel.
The type of harm that the plaintiff sustained was of the variety that was a reasonably
foreseeable harm from the circumstances (i.e. alarm sounding in the early morning).
The extent of the injury may not have been foreseeable, but the underlying injury
was.
Notes
Thin skull rule
Watson v. Kentucky & Indiana Bridge & Railroad (204)

Plaintiff:
Defendant:
Facts
● Defendant, a railroad, negligently derailed a gasoline tank car
● Man in the area threw a match, causing an explosion that injured the plaintiff
Issues
Is the railroad liable for plaintiff’s injuries despite the intervening act of
match-throwing man?
Holding
No, the defendant will not be liable for injuries sustained by the plaintiff unless the
actions of the second tortfeasor were reasonably foreseeable by the first tortfeasor.
If the intervening agency is something so unexpected and extraordinary that the
defendant could not have reasonably anticipated it, then they will not be held liable.
This is especially true if it was a criminal act.
Notes
Notes 3/11/13 - Defenses to Negligence - Contributory

and Comparative Negligence
Proximate Cause
● Scope of risk is all you need to worry about here
Defenses to Negligence
● Similar to intentional torts
○ Defendant must only negate an element of negligence
● Affirmative defenses
Contributory Negligence
● Complete defense
○ Negates recovery
● Elements are that of negligence
○ Duty is almost always a given -- an individual has the duty to take care
of themselves
○ Harm is almost always a given -- case wouldn’t be brought if there
wasn’t a harm
○ Breach is almost always the biggest question
Comparative Negligence
● partial defense
○ can negate recovery, but not completely
● Pure comparative negligence statute
○ Weighs fault on one side (plaintiff) and compares it to the other
(defendant)
■ E.g. If plaintiff is 10% at fault, the recovery is diminished by 10%
● Modified comparative negligence statute
○ Weighs fault on one side versus the other, but if fault of plaintiff exceeds
that of defendant, no recovery
■ E.g. If plaintiff is 60% at fault, they get nothing; if plaintiff is 10%
at fault, recovery is reduced by 10%
Exceptions to Contributory Negligence

● The Rescue Doctrine
● Last Clear Chance or Discovered Peril
○ Plaintiff is in peril and the defendant discovered or should have
discovered the peril and failed to do so
○ Plaintiff frequently does something dumb first
● Reckless or Intentional Misconduct
○ If in a contributory negligence jurisdiction, barred
○ In a comparative negligence jurisdiction, they would look at fault
apportionment
Marshall v. Nugent (213)

Plaintiff:
Defendant:
Facts
● Driver was forced off the road by a truck near the crest of the hill
● While pulling the car back onto the road, the plaintiff went to warn other
drivers that there were vehicles ahead
● Vehicle came up the hill and crushed the plaintiff
Procedure
Issues
Is the defendant liable when an injury results from the the act of another, which was
deemed by the jury to be foreseeable intervening act?
Holding
Prince’s (T1) negligence was over and done by the time defendant Nugent collided,
but the consequences of the negligence had not fully played out.
The “risk” that Prince (T1) created had not terminated when the plaintiff was
harmed.
Notes
Butterfield v. Forester (219)

Plaintiff:
Defendant:
Facts
● Plaintiff left a public house and was riding violently
● Defendant left a pole sticking out of the ground, which the plaintiff struck
● A witness determined that he would have seen the pole if he was not riding so
violently
Issues
Does the plaintiff’s contributory negligence prevent him from recovering?
Holding
Yes, the plaintiff’s negligence significantly contributed to the incident, defeating his
claim.
One person’s fault will not dispense the need to use ordinary care when going about
life.
Notes
Barker v. Kallash (237)

Plaintiff:
Defendant:
Facts
● 15 year old was making pipe bombs from illegal firecrackers obtained from a 9
year old
Issues
Is a plaintiff allowed to recover from a defendant who illegally sold firecrackers that
contributed to the plaintiff’s harm which occurred during the illegal act of pipe bomb
making.
Holding
No recovery.
If a plaintiff is engaging in an illegal activity, you are barred from recovery.
Notes
Illegal activity has to be something “serious” (e.g. riding a snowmobile illegally is not
serious).
Notes 3/27/13 - Implied Assumption of Risk

Assumption of Risk
● a person assumes a risk when a personal voluntarily agrees to accept a known
and appreciated risk
● Variation of consent that arises under negligence
○ i.e. a consent to harm
● Complete defense in a contributory defense jurisdiction
3 Types of Assumption of Risk
● Express AoR
○ Agreement for 𝚷 to accept risks
○ Ex culpatory clause hold harmless (e.g. sports facilities)
○ Use doesn’t matter what kind of jurisdiction you’re in (i.e. comparative
vs. contributory)
● Implied AoR - Primary
○ Voluntarily accepting a known and appreciated risk through their actions
○ Plaintiff agrees to conduct that is inherently risky
○ No duty
○ Still in action in contributory negligence jurisdictions and acts as a
complete defense
● Implied AoR - Secondary
○ Voluntarily accepting a known and appreciated risk through their actions
○ Facing defendant’s negligence, the plaintiff agrees to encounter the risk
anyway
○ Merges with comparative negligence in some jurisdictions (i.e.
comparative jurisdiction regime) and becomes a partial defense
○ Still in action in contributory negligence jurisdictions and acts as a
complete defense
Boyle v. Revici (239)

Plaintiff:
Defendant:
Facts& Procedure
● Plaintiff is diagnosed with cancer
● Plaintiff sought several opinions
● Defendant offered an alternative option that he expressly stated was not
approved by the FDA, other doctors, etc.
● Plaintiff’s condition quickly deteriorated and she died
Issues
Should express assumption of risk, which would have barred the plaintiff’s claim, been
the instructions given to the jury?
Holding
Yes. There was an assumption of risk and the jury should have been instructed to
decide accordingly.
The patient expressly agreed to the accept the risks the alternative therapy exposed
her to.
Notes
Tunkl v. Regents University of California (240)

Plaintiff:
Defendant:
Facts
● Plaintiff sustained injuries allegedly from negligent caretaking at a hospital
● Plaintiff was required to sign a release from any and all liability
● Trial court submitted it to the jury who found in favor of defendant
Issues
Can a hospital contractually shift the risk to patients?
Holding
No, the party cannot transfer the risk to patients because it is not a truly voluntary
shifting.
Contract cannot be enforced for public policy reasons. Individuals admitted to
hospitals are in no position to shop for alternatives--it’s a compulsory assumption of
the risk. Ordinarily, a party engaged in a private transaction can shift the assumption
of the risk onto the buyer, but a hospital and patient relationship does not fit the bill.
Notes
Betts v. Crawford (244)

Plaintiff:
Defendant:
Facts
● Plaintiff was hired to take care of a home
● Children frequently left toys on the stairs, which the plaintiff knew about
● Plaintiff tripped on the stairs and was severely injured
● Plaintiff sued for negligence
● Defendants claimed implied assumption of risk
Issues
Should the court use the implied assumption of the risk instruction for the jury or
comparative fault?
Holding
The court properly used the comparative fault instructions. When assumption of risk is
used as a defense to an established duty (master/servant relationship) then implied
assumption of risk merges with comparative negligence system.
Plaintiff’s decision to fail to care for herself (i.e. walk down the stairs without seeing)
was in itself negligent. With both parties negligent, we use comparative negligence to
determine liability.
Notes
Avila v. Citrus Community College District (245)

Plaintiff:
Defendant:
Facts
● Plaintiff was hit in the head with a beanball during a preseason game
● Plaintiff walked to first base and then second before leaving the field
● Plaintiff claimed negligence on the part of the defendant
● Defendant claimed implied assumption of risk (primary) as they were inherent
risks to the game; they claimed they did nothing to increase the inherent risks
Procedure
Trial Court - Granted judgement in favor of defendant
Appellate Court - Reversed
State Supreme Court - Reversed reversal
Issues
In the sporting context, does an implied assumption of risk bar liability for injuries
inherent to the sport?
Holding
Yes, the assumption of risk made by the plaintiff bars defendant’s liability.
Primary assumption of risk completely removes liability from defendant because
defendant owes no duty to prevent the risks from occurring. A beanball is an inherent
risk to the sport, so defendant had no duty towards plaintiff, other than protecting
him from things that go beyond what could reasonably be expected to occur and
protected against.
Notes
Notes 4/1/13 - Duties of Landowners; Firefighter’s Rule
Review
● Assumption of risk
○ Voluntarily confronting a known risk
○ Complete defense
● Duty
○ Is there a duty?
■ obligation to conduct
○ What standard of care applies?
New
Landowners Duties
● Invitee
○ Type 1 - A person invited on to provide a benefit
○ Type 2 - A person on the premises that is open to the general public
○ Duty
■ Ordinary care
■ Disclose hidden dangers, unless danger is open and obvious
● Licensee
○ Allowed on land with permission, but had limited license to be there
■ Includes social guests
○ Duty
■ Avoid wilful, wanton reckless injury (WWR)
■ Disclose hidden dangers, unless danger is open and obvious
● Trespasser
○ Person who has no legal right to be on another’s land and enters without
their consent
○ Duty: Avoid WWR
■ Except
● Discovered in peril
● Activity
● Footpath rule
○ If the landowner knows people frequent the area,
then the duty reverts to ordinary care
Recreational Use rule could change status and therefore, duty owed
Gladon v. Greater Cleveland Regional Transit Authority (263)

Plaintiff:
Defendant:
Facts
● Man had 5 beers at a baseball game and went to the subway to go home
● Man was attacked by two males and ended up on the tracks when a train rolled
by and injured him
● Raised two claims of negligence; negligent security and negligent operation
Issues
Did the defendant owe the plaintiff a duty?
Holding
Yes, but it the duty was only that of a trespasser, which extended only to protecting
him from willful or wanton conduct. If the landowner discovered the trespasser in
peril, the RTA’s duty is to use ordinary care to avoid injury. This duty does not activate
for licensee’s or trespassers until they knew or should have known victim is on the
tracks. This is a question for the jury.
The plaintiff was either a licensee (because of private necessity privilege) or a
trespasser, but he distinction does not matter to the analysis because the duty owed
is the same -- protection from willful or wanton conduct. If a trespasser or licensee is
discovered in peril, it must then be determined if the landowner met the reasonable
standard of care when the peril is discovered.
Notes
Entered the tracks w/o permission so he was a trespasser, rather than a licensee. He
started out as an invitee before he fell into the tracks.
Bennett v. Stanley (268)

Plaintiff:
Defendant:
Facts
● Plaintiff moved next to defendants
● Defendant had a pool that fell out of use for 3 years
● Pool was drained but the defendant allowed rainwater to collect in it to a
depth of about 6 feet
● There were frogs, tadpoles, snakes, and other wild beasts running about
● Child fell in and died while trying to catch said beasts
● Mother died while trying to save the child
Issues
Should child trespassers become another class of users who are owed a different duty
of care?
Holding
Yes, the court is adopting the dangerous instrumentality doctrine (AKA attractive
nuisance), which imposes upon the owner or occupier of premises a higher duty of
care to a child trespasser when such owner actively and negligently operates a
hazardous machinery or other apparatus, the dangerousness of which is not reaily
apparent to children.
Children are entitled to a greater level of protection than adults in tort law. The
court’s decision to not incorporate the attractive nusiance doctrine was decided in a
differetn time -- when foreseeability was more difficult because we lived in a more
spread out society.
Notes
Attractive Nuisance Doctrine
1. Trespass foreseeable
2. Landowner knows of danger
3. Child because of age cannot protect himself
O’Sullivan v. Shaw (273)

Plaintiff:
Defendant:
Facts
● Plaintiff dove headfirst into the shallow end of the pool
● Plaintiff suffered injuries to neck and back
● Pool ranged from four to eight feet deep and had no markings depicting the
depth, other than a diving board on one end of the pool
Issues
Did the homeowner have a duty to warn individuals about the diving headfirst into the
shallow end of the pool?
Holding
No, the homeowner did not need to warn others about potentially dangerous
conditions arising from an open and obvious danger.
This is not an issue of assumption of risk because that concerns a plaintiff’s failure to
exercise due care for their own safety and the open and obvious danger doctrine is for
defendant’s duty of care.
Notes
Minnich v. Med-Waste (276)

Plaintiff:
Defendant:
Facts
● Plaintiff saw medical waste truck rolling into the road
● Plaintiff jumped in and stopped it but he got injured in the process
● Defendant raised the Firefighters Rule, which originated from property disputes
Issues
Would the Firefighters rule, a common law doctrine which precludes a firefighter
from from recovering for defendant’s negligence bar the plaintiff’s claim?
Holding
No. The Firefighters Rule has never been followed in this jurisdiction and they won’t
begin following it now.
Courts have allowed police officers and firefighters to recover for an act of negligence
unrelated to the specific reason the officer or firefighter was originally summoned.
Notes
Notes 4/3/13 - Duties of Medical Professionals; Practice

Question Review
Expert witnesses are always needed to help establish the standard of care
Specialists
● Held to the standard of their specialty
Non-medical Professionals
● held to their own standard of care
● duty to treat according to their profession, but do not have a duty to refer you
to a doctor
○ E.g. bad cough -- they can treat you, but they must at some point tell
you I can’t treat you for this
Other professionals
● held to the standard of their profession
Walski v. Tiensenga (286)

Plaintiff:
Defendant:
Facts
● Plaintiff was injured during surgery; their laryngeal nerves were severed
resulting in the loss of a voice
● Defendant chose to use an abnormal technique, a wide cut around the thyroid,
as there was significant scar tissue that did not allow for the normal technique
Issues
Did the defendant act negligently in deciding to make a wide cut around the nerves,
rather than locating them and segregating them?
Holding
No, the doctor was not negligent and cannot be found liable for medical malpractice.
The expert witness failed to establish that there was a generally accepted medical
standard of care for the procedure. The medical profession requires a fair amount of
independent judgment so deviating opinions within the framework of established
procedures is acceptable.
Notes
Vergara v. Doan (291)

Plaintiff:
Defendant:
Facts
● Plaintiff’s child was delivered in a manner that caused severe and permanent
injuries
● Plaintiff urged the court to abandon the “modified locality rule”
Issues
Should the jury have been instructed to use Indiana’s modified locality standard of
care for plaintiff’s medical malpractice case?
Holding
No. The court abandons the modified locality rule but upholds the appellate court’s
judgment.
Alternate instructions wouldn’t have changed the outcome of the case.
Notes
Standards of care
● Strict locality Standard of Care
○ Standard of care for that particular town
● Modified locality Standard of Care
○ Standard of care for a similar town
● General/National Standard of Care
○ Doctors in the same class
HIRPA v. IHC Hospitals (296)

Plaintiff:
Defendant:
Facts
● Patient became unresponsive and a blue light was triggered, indicating the
need for a doctor
● Defendant, a doctor, entered and attempted to help but the patient died
● Plaintiff, the decedent’s spouse sued and defendant rebuffed with good
samaritan rule
Issues
Did the Good Samaritan rule defend the doctor against the suit?
Holding
Yes, the Good Samaritan rule applies.
Good Samaritan rule protects doctors. The statute used in Utah is a broad one and it
applies to the workroom (i.e. the hospital). Other states construe it more narrowly,
but not us -- we love protecting doctors because we love being healed by these
modern day Jesi.
Notes
Notes 4/8/13 - Governmental Immunity; Nonfeasance

Governmental Immunity
Historically
● Traditionally, the government is immune to suit
○ Trace this back to the King
● Government can waive its sovereign immunity
○ Only when waived can you bring suit
○ Most states have partially waived their sovereign immunity
FCTA
● Many state’s law are modeled after this
○ E.g. Maryland State Tort Claim
Discretionary Decisions
● Discretionary -- design of policy/authority to make a decision
● Non-discretionary -- implementation/actions done while carrying out policy
Nonfeasance
● Exceptions
○ Defendant causes harm to another
■ If injured through no fault and no aid is given, defendant is liable
for everything subsequent
○ Defendant creates a dangerous situation
○ Statute
○ Defendant takes charge (gratuitous services)
○ Special relationship between plaintiff and defendant
United States v. Olson (324)

Plaintiff:
Defendant:
Facts
● Two injured mine workers and a spouse of the decedent (plaintiffs) are suing
the US (defendant)
● Plaintiffs are claiming negligence against the federal mine inspectors
Issues
Is the defendant liable for the negligent actions of regulatory workers without a
private sector equivalent?
Holding
No, there must be a private sector equivalent for liability. Local statutes holding
municipalities liable is not enough to waive sovereign immunity.
It must be shown that there is a private person analogy to find the US government
liable.
Notes
Exceptions
Statute
Judicially created
No strict liability
Feres Rule
Feres v. United States (327)

Plaintiff:
Defendant:
Facts
● Plaintiffs injured in a variety of ways while employed by the US Army (e.g.
killed in barracks fire while on active duty)
● Plaintiffs want to sue the Army for negligence
Issues
Is the government liable for negligent activities that occur while in the service?
Holding
Claims are barred because injuries received were “incident to service”.
1. No private-law analogue; i.e. nobody else runs armies
2. Varied laws of the states would make tort law inconsistent for the relationship
between government and soldier
3. The Army provides substantial compensation as a substitute for tort liability
Notes
Fourth policy rationale -- subjecting govt. to military related suits would compromise
military discipline.
Riss v. City of New York (335)

Plaintiff:
Defendant:
Facts
● Plaintiff was terrorized by rejected suitor for several months
● Police were aware of the matter and were called before the incident took
place
Issues
Are municipalities immune from liability arising out of the negligent failure of police
authorities to protect citizens from crime?
Holding
Yes. Police work is discretionary and the defendants cannot be held liable for a
negligent failure to protect citizens.
The allocation of resources is an inherently discretionary issue for the police and
without a specific statute, there is no reason that the FCTA shouldn’t apply.
Notes
DeLong v. County of Erie ((336)

Plaintiff:
Defendant:
Facts
● Plaintiff called 911
● Plaintiff’s emergency call was wrongly routed to a police station further away
● Plaintiff was seen running from the house, bleeding, and died shortly
thereafter
Issues
Was the municipality liable for the negligent treatment of the call?
Holding
The holding affirmed a judgment for the plaintiff in a wrongful death action.
There is a standard of ordinary care, as the government voluntarily assumed a
function. They can be held liable for their negligence in this instance.
There was a special relationship between the plaintiff and the government (i.e. a
caller and 911 operator).
Notes
Distinguish from Riss because this was less of a discretionary decision and more of an
implementation of policy to take care of somebody at a particular place and time.
Yania v. Bigan (347)

Plaintiff:
Defendant:
Facts
● Defendant was engaged in coal strip-mining which created large tracts of land,
some of which had filled with water
● Plaintiff jumped headfirst into a trench and died from drowning
● Defendant offered no assistance to save plaintiff
Issues
Does a person have a duty to take reasonable care to save a person?
Holding
No, there is no legal responsibility from placing an adult in a position of potential
peril.
Plaintiff voluntarily placed himself in a position of potential danger. Cajolery and
inveiglement can have a mental impact, but it is still the individual’s own freedom of
choice that rules the day in these kinds of instances. Plaintiff voluntarily jumped in
and defendant had no responsibility to help him other than exercising ordinary care.
Notes
Wakulich v. Mraz (352)

Plaintiff:
Defendant:
Facts
● Defendants (brothers) provided plaintiff with a quart of alcohol and offered
incentive to drink it
● When she became unconscious, defendants moved her downstairs, eventually
gave her a pillow, and encouraged others to not call the hospital for help
● Plaintiff was taken to her friends house and then the hospital who pronounced
her dead
Issues
Does an individual assume voluntarily assume the duty to care if they take actions
demonstrating an undertaking concerning another’s well being?
Holding
Yes, they voluntarily assume a duty to care.
One is liable for injuries sustained when the injuries are a result of that person failing
to meet the standard of care they volunteered. The actions of the defendants in this
claim clearly demonstrate a proactive undertaking for the plaintiff’s wellbeing yet the
harm she experienced was a result of their failure.
Notes
Gratuitous services --
Podias v. Mairs (354)

Plaintiff:
Defendant:
Facts
● Defendants were driving back to school after a night of drinking when they
struck a motorcyclist
● Motorcyclist was unconscious and laying in the road, but the defendants
thought he was dead
● Passengers urged the driver to flee, where they all went their separate ways
Issues
Can the non-driving defendants also be liable for the main tortfeasor’s negligence?
Holding
Yes, the purported actions by the other two defendants make them directly involved
in the incident.
The court is stretching the rule here. Being liable for a driver’s actions would be a
nightmare, but the way that the individuals were directly involved allows the court to
stretch the rule. The defendants were in a position to help, and despite not having a
real relationship to the injured party, other than observing, the court determines that
they were in a position to help, it was foreseeable that not helping would further
harm the plaintiff, and their relationship to the primary wrongdoer and the incident
itself creates a special relationship.
Notes
Notes 4/10/13 - Duty to Protect Against Third Persons;

Loss of Consortium; Wrongful Death
Duty to protect against third persons
1. Lowest - warn
2. Medium - reduce risk
3. Highest - duty to control
Foreseeability Tests for Determining Liability Arising from Third Party Inflicting Harm
● Specific Harm Rule
● Prior Similar Incidents Rule
● Totality of the Circumstances Rule
● Balancing Test
Posecai v. Wal-Mart Stores, Inc. (380)

Plaintiff:
Defendant:
Facts
● Man was hiding under plaintiff’s car in the defendant’s parking lot
● Man robbed plaintiff of $19,000 of jewels
Issues
Is the landowner liable for the tortious activities that occurred on its property?
Holding
Yes, but there must be a balancing test to determine if the circumstances grant
recovery.
The burden of protection must be weighed against the foreseeability of the harm. It is
simple economics, weighing the foreseeability and gravity of the harm against the
cost of implementing something to prevent or deter.
Notes
Before applying the third person liability tests, you need to ensure that there is a
relationship (e.g. landowner and licensee, carrier and passenger, etc.).
Tarasoff v. Regents of University of California (391)

Plaintiff:
Defendant:
Facts
● Young man was seeing the college psychiatrist, defendant
● The young man professed that he was going to harm his ex-girlfriend, with the
defendant knowing her by name
● The defendant informed the campus police, who detained the young man
● The young man was soon thereafter let go
● The young man went on to kill the girl
Issues
Is the defendant liable to the plaintiff for negligently failing to disclose the risk of
harm?
Holding
Yes, the defendant is liable.
Despite the covenant between patient and doctor, there was a duty to exercise
reasonable care in warning the plaintiff of the danger she was facing.
Notes
Chavez v. Carpenter (452)

Plaintiff:
Defendant:
Facts
● Unmarried father was killed by a drunk driver
● Daughter died
● Parents lived with their son, the father, and brought the claim
Issues
Can the parents of a decedent advance a survival action?
Holding
Yes, they can bring a claim.
Despite being initially barred by the statute because the child survived the father,
they were dependents, so the it will be a question of the jury. Also, the claim for the
father’s death was passed onto the child and then from the child to the estate, so
they may be able to still advance the claim.
Notes
Notes 4/15/13 - Wrongful Death; Vicarious Liability

Notes from Chris Monte
Riviello v. Waldron
Plaintiff:
Defendant:
Facts
● Defendant, employed by a bar, was flipping a knife while talking to plaintiff
● Plaintiff was struck in the eye and sustained serious injury
Issues
Is the employer liable for defendant’s actions?
Holding
Yes. The bar owner is liable as defendant was acting within the scope of his
employment. The scope of employment is defined as “the theory that employer could
exercise close control over his employee during the period of their service.”
Social policy allows for an aggrieved party to, rather than being limited to deriving
equity from an often impecunious plaintiff, would allow modern economic devices
(e.g. insurance, cost accounting) to spread the impact.
Notes
Fruit v. Schreiner
Plaintiff: Schreiner - Injured victim with crushed legs
Defendant: Fruit - Life insurance salesman
Facts
● Defendant was driving to a part for a networking activity
● Defendant lost control of the vehicle and ran over plaintiff’s legs
Issues
Is defendant’s employer liable for injuries caused by defendant?
Holding
Yes, employer’s defendant is liable for the injuries sustained by plaintiff.
An enterprise assumes liability for losses to third parties that are incidental to
activities furthering the ambitions of an enterprise.
Notes
Notes 4/17/13 - Vicarious Liability; Common Law Strict

Liability
Review
Loss of Consortium
● To recover
○ claim must be value
○ right kind of relationship (class)
○ prove loss of comfort, services, etc.
Survival
● Assets would have been bestowed after this
Wrongful Death
Vicarious liability
● respondeat superior
○ employer is responsible for employee’s wrongdoings
● two things to look for
○ right kind of relationship
○ act within scope of employment
Strict Liability
● liability without fault
○ if you cause a harm, you are responsible for it, despite your lack of
blameworthy conduct
Nuisance
● Elements
○ substantial interference w plaintiff’s use & enjoyment of land
○ unreasonable invasion
○ intent or abnormally dangerous activity
● Coming to a nuisance
○ just one factor
■ land uses change so that factor can’t be dispositive
■ plaintiff is also already compensated because they probably
bought the land at a lower price
● remedies
○ damages measured by loss of land value
○ injunction to stop the activity/abate the effect on landowners
Edgewater Motels v. Gatzke (465)

Plaintiff:
Defendant:
Facts
● Defendant was a district manager for Walgreens restaurants in Minnesota
● He lived out of a room in plaintiff’s hotel
● Defendant threw a cigarette into the plastic garbage can while filling out a
reimbursement form for employer
Issues
Was the conduct performed by the employee that caused the harm one that was
authorized by the employer?
Holding
Yes, his employer could be held vicariously liable for the actions.
Defendant was within the scope of employment when the incident allegedly occurred.
He was filling out reimbursement forms that served a dual purpose -- one personally,
but more importantly, one for the company. Even if he had not been in the scope of
his employment
Notes
District of Columbia v. Hampton (472)

Plaintiff: Hampton - Two year old’s mother
Defendant:
Facts
● Two year old was was placed in the care of defendant, a foster parent
● Defendant’s sons beat the two year old child to death while mother left the
children unattended for 10 hours
● Plaintiff, the dead child’s mother, brought suit against foster parent and the
DHHS, who placed the two year old with the foster parent
Issues
Was the defendant an independent contractor of the DHS or was she an employee (in
a servant-master relationship)?
Holding
The defendant was an independent contractor, as the power to control the individual
is the determining factor for establishing this relationship.
The right to inspect and the right to set standards is not the same as the right to
control the servant. Independent contractors can be identified by a test which looks
at whether the employer can determine what is acceptable as an end result
(independent contractor) or something more (not an independent contractor).
Notes
Determining the relationship is highly fact-specific.
Bamford v. Turnley (487)
Plaintiff:
Defendant:
Facts
● Plaintiff was neighbor of defendant
● Defendant was operating a kiln on his own land that brought awful stenches
into the plaintiff’s property, affecting his enjoyment and use of the property
● Defendant had move the kiln as far aways he possibly could
● Plaintiff sued defendant for nuisance
Procedure
Issues
When the use of one’s land leads to the detriment of another, will a nuisance occur
even if the use is legitimate and carefully calculated?
Holding
Yes, the homeowner is liable for nuisance, granted it is not an act that is necessary
for common and ordinary use (e.g. emptying a cesspool).
Activities like emptying a cesspool or burning leaves is a “live and let live” scenario;
it’s a reciprocal nuisance. Baking bricks is a not reciprocal. Additionally, baking bricks
is a private interest, where the benefit of the defendant is not offset by some other
form of compensation for the aggrieved party. The defendant cannot characterize the
brickmaking as a public good (people can use them) because it is unfair for the burden
to be weighed by one individual (who is not being compensated).
Notes
Hand formula is similar (does the benefit outweigh the consequences), but it can be
differentiated because the Hand formula relates to negligence and this ruling relates
to strict liability.
Sullivan v. Dunham (500)

Plaintiff:
Defendant:
Facts
● Defendant was blasting rocks
● Tree stump flew as a result of a blast and killed plaintiff
Issues
Can a plaintiff be found liable for blasting rocks on their own property?
Holding
Yes, when blasting rocks or trees on the lands of another, there is liability as a
trespasser.
Though one has the right to blast, the other has a right to the beneficial use of
property.
Notes
Exner v. Sherman Power Construction Co. (501)

Plaintiff:
Defendant:
Facts
● Defendant was blasting for a hydroelectric plant
● Explosion shook a house and the plaintiff from the bed, also damaging the
property
● Trial court found for the plaintiff with defendant found to have violated a
statute
Issues
Could the defendant be held liable if the class of person suing is not a member of the
class protected by the statute?
Holding
Yes, absolute liability will bind the defendant.
Even if the defendant is not at fault, they are engaged in a dangerous activity, so
short of an excuse of liability, they are strictly liable for the repercussions of their
activity.
Notes
Abnormally dangerous activities (e.g. blasting things) will be held under strict
liability.
Notes 4/22/13 - Products Liability

Strict Liability & Products Liability
1. Is activity abnormally dangerous?
○ If no, then default to negligence laws.
○ If yes, move on.
2. If so, did it cause harm?
○ If harm occurs, the harm that occurs must be of the type that makes the
activity abnormally dangerous.
○ When determining harm, use proximate cause standards during your
analysis.
Defective Products
● Types of product defects
○ Manufacturing defects (AKA production flaws)
○ Design defects
○ Information defects
■ Don’t really use strict liability standards; end up applying
negligence standards
● Negligence
○ Foreseeability is the standard put forth by Cardozo
○ Privity is no longer required after Cardozo’s ruling, which substitutes
general negligence principles for contractual undertakings: “ If the
manufacturer is negligent where danger is to be foreseen, a liability will
follow”
● Misrepresentation
○ No privity is required for injuries resulting from conditions of the
product that were misrepresented
○ This can often lead to punitive damage awards
● Express Warranty
○ Express warranties (e.g. the windshield is shatterproof) is a contractual
liability (strict liability)
● Implied Warranty
○ Product should meet some kind of normal expectation as to quality and
safety
○ Caveat emptor has been used less and less
○ UCC 2-314: goods are “fit for the ordinary purposes for which such goods
are used”
● Warranty as Contract Claim
○ Implied warranties often run alongside express warranties (e.g. car
manufacturer cannot disclaim liability through contract with retailer)
○ Strict tort liability has become favored over use of this
● Strict Tort Liability
○ Purpose is to “insure that the costs of injuries resulting from defective
products are borne by the manufacturers that put such products on the
market rather than by the injured persons who are powerless to protect
themselves
○ R 402A
■ Sellers were strictly liable for physical injuries to person or
property other than product itself
■ Privity rules were abolished
■ Defect products were unreasonably dangerous and had strict
liability applied to them
■ Consumer’s reasonable expectations defined what counted as a
defective product
○ Reasoning
■ Consumer expectations
■ Loss spreading
■ Practicality
● Negligence often the cause, saving cost litigating that
(negligence per se similarities)
■ Fairness
● Manufacturer enjoys advantages and disadvantages of
commerce
● Risks for manufacturer are non-reciprocal without strict
liability
■ Deterrence
● Strict liability deters creating unsafe products
● Pure Economic Harm
○ No physical harm of any kind, only damage to the product which is
reduced in value because of it’s defect
○ Contractual liability is required to enforce; no negligence or strict
liability
Elements of Defective Product

1. Seller is engaged in Business
2. Product is defective
a. Unreasonably dangerous
3. Unchanged
4. Causes physical harm or property damage
a. Requires factual and proximate cause
Lee v. Crookston Coca-Cola Bottling Co. (515)

Plaintiff:
Defendant:
Facts
● Coke bottle exploded in waitress’s hands
● Not hit by anything or subject to extreme temperature changes
● Trial court denied strict liability and jury found no negligence
Issues
Is circumstantial evidence, much like the res ipsa loquitur doctrine, sufficient enough
to take a strict liability or negligence case to the jury?
Holding
Yes. A defect may be inferred from circumstantial evidence.
For negligence, she must show two things - defect result of negligence and defect was
present when it reached her.
For strict liability she must only show one thing - defect was present when it reached
her.
Therefore, the jury should have been given the strict liability instructions.
Notes
Prima facie elements of liability
● Product was in defective condition, unreasonably dangerous for its intended
use
● Defect existed when it is in defendant’s control
● Defect was the proximate cause of the injury sustained
Merging consumer expectations and design defect

● product is defective if it departs from consumer’s expectations
Exam Information
● ⅓ multiple choice
● ⅔ essay
● allowed to bring in one piece of paper, double sided (8 ½ x 11)
● Resources: Crunchtime
Leichtamer v. American Motors Co.

Plaintiff:
Defendant:
Facts
● Plaintiff was offroading when car flipped over
● Defendant’s roll bar collapsed inwards increasing the amount/extent of the
injuries
Issues
Was the item designed in such a way that it was unreasonably dangerous?
Holding
Yes.
The way that it was designed did not compensate for rolling over end to front and it
folded inwards, hurting and killing plaintiffs. The product did not behave safely in a
way that the average user could reasonably expect.
Notes
Knitz v. Minster Machine Co.

Plaintiff:
Defendant:
Facts
● Press was designed in a way that did not adequately protect operator’s
extremities
● Press cut two of plaintiff’s fingers off when her foot errantly pressed the pedal
to operate it
● Trial judge gave summary judgment for manufacturer
Issues
Did the product (press) have a design defect that made operation more dangerous
than an ordinary user would expect and did the defect’s benefits outweigh the
likelihood that it would cause injury?
Holding
Yes, the product’s defect was such that it was unreasonably dangerous for a
reasonable user to operate.
The risk posed by the design was in no way outweighed by the benefits it conferred.
An improved design was suggested by a safety engineer and the economic cost of
implementing it would not have been too great for the owner to bear.
Notes
Notes 4/24/13 - Product Liability Continued
Liriano v. Hobart Corp (535)

Plaintiff:
Defendant:
Facts
● Plaintiff injured his hand in a meat grinder while using it for the second or
third time
● Plaintiff never received proper instructions on the operation of the machine
● There was a safety guard that was meant to be attached to it and it had been
removed, unbeknownst to the plaintiff, and the machine bore no indication
that a safety guard belonged on it
● Trial court ruled for the defendant and believed that it was the plaintiff’s
responsibility to know what danger he faced
Issues
Is the kind of conduct required to meet the standard of care one of fact, which should
submitted to the jury?
Holding
Yes, the type of conduct required is a question of fact that should be submitted to the
jury.
The duty to warn is not lifted despite a clear and evident danger. A jury may find that
a manufacturer should nevertheless include a warning on a device that would allow
unfamiliar users to understand the danger and the ways to protect against it. The
burden is on the defendant to prove that it’s failure to warn was not factual cause of
the injury; when the negligent behavior causes the harm that occurred, it shifts the
burden to the defendant to rebut.
Notes

Notes - Torts - 608

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Notes - Torts - 608

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Outline - Torts

First 4 defenses are based on plaintiff’s conduct

iii. Negligence per se

III. Landowner Duties

IV. Duties of Medical and Other Professionals

VII. Duty to Protect Against Third Persons, Loss of

VIII. Strict Liability

IX. Product Liability

Dobbs 2-11, 14 n.9, 17-34

Two main theories for justifying tort system

Prima Facie Case

Procedural posture can have a large impact on a case

Van Camp v. McAfoos (27)

Cohen v. Smith (30)

1/16/13 - Defining Intent; Assault (35 -48)

Tort standards are objective

Battery requires a touching

Mullins v. Parkview Hospital (32)

Garratt v. Dailey (35)

White v. Muniz (37)

Stoshak v East Baton Rouge Parish School (42)

Cullison v. Medley (44)

1/23/13 - False Imprisonment; Property Torts; IIED

Words offering a choice of tortious alternatives

Intentional Infliction of Emotional Distress (IIED)

Trespass to Chattel Conversion

● Intentional interference w/ ● Intentional interference to

McCann v. Walmart (48)

School of Visual Arts v. Kuprewicz (57)

GTE Southwest, Inc. v. Bruce

Class Notes 1/29/13 - Defenses to Intentional Torts

Two Types of Defenses

Arrest & Detention

Arrest and Detention

Peters v. Menard (61)

Katko v. Briney (62)

Brown v. Martinez (64)

Notes 1/30/13 - Defense to Intentional Torts;

Arrest & Detention Private necessity

Robins v. Harris (67)

Kennedy v. Parrot (70)

Doe v. Johnson (71)

Surocco v. Geary (74)

Wegner v. Milwaukee Mutual (75)

Ploof v. Putnam (77)

Vincent v. Lake Erie Transportation (78)

Intentional Torts vs. Negligence

Stewart v. Motts (85)

Shepherd v. Gardner Wholesale, Inc. (91)

Creasy v. Rusk (92)

Hill v. Sparks (95)

Robinson v. Lindsay (97)

Notes 2/5/13 - Statutory Standards of Care; Breach of

Individual characteristics are generally disregarded

Superior characteristics are factored in

These cases are on the line between duty and breach

If a statute establishes a standard of care, breach of that duty can qualify as

Martin v. Herzog (102)

Impson v. Structural Metals (109)

Pipher v. Parsell (114)

Indiana Consolidated Insurance Co. v. Mathew (117)

Notes 2/10/13 - Risk/Utility; Proving and Evaluating

United States v. Carroll Towing (127)