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Tort - A civil wrong Ior which the law provides a remedy
I Liability Based on Fault.
- There are 3 theories oI culpability:
1) Intentional
2) Negligent
3) Strictly Liable
II Intentional Torts
Rules Ior Intent
- Intent - Is concerned with an actor`s state oI mind at the time oI the act. It is not
concerned with motive or even the results oI their act. These considerations involve
volition, with which intent is not concerned.

- Two analytical tests suIIicient to prove Intent:
1) Act with the purpose to cause
2) Substantial certainty

- 1 Acting with the purpose to cause, generally, is easy to demonstrate. The actor
preIormed the action to elicit the result.
2 Substantial certainty asks iI a reasonable person in the actor`s position would have
known the consequences oI their actions were greater than a mere risk.

- TransIerred Intent Once intent has been established, intent will transIer Irom any
intentional tort, except IIED, so that an intent to injure A will become an intent to injure
B, regardless oI the original target.

- Minors Minors are held to the same reasonable person standard as adults.
- Mental Illness - The same is true Ior the mentally ill, except Ior those torts which require
speciIic intent such as deception. The thinking is that those in charge oI the mentally ill
have a vested interest in the tranquility oI their property. II they do not have money, then
holding them liable Ior their damages does not harm them.

- Mistakes A mistake, even in good Iaith, does not negate intent. This carries over to
cases oI
- Mistaken Identity - Which also does not negate intent. Either could inIluence damages,
II Battery

The tort oI battery exists to provide a remedy Ior actions which trespass on one`s person. It
protects physical tranquility.
- A battery is the intentional act oI a harmIul or oIIensive contact upon another.
- Prima Facie Case Requirements:
1) Intentional
2) Either a) HarmIul or b) oIIensive
3) Contact
1) Intent Iollows the same rules given beIore: SC and PTC tests. Keep the list oI
qualiIications in mind.
2) A) HarmIul easy to prove. It is a Iactual inquiry.
B) OIIensive this goes hand in hand with harm. II a person is harmed, they are assumed
to be oIIended as well.
4 There are cases where the person is not harmed and there is a method to
determine whether a reasonable person would be oIIended in that situation. To
determine oIIense one must consider:
1) The time,
2) The place,
3) The circumstances, and
4) The relationship oI the parties
3) Contact Contact can be either direct or indirect.
4 A battery may occur with or without actual touching, the act need only contact
those things commonly held to be a part oI one`s person. This includes cloths and
things grasped by the hand.
4 Crowded World Some touching is assumed in the course oI our day to day lives.
4 Battery can occur without a plaintiII being conscious.
III Assault
The tort oI assault exists to provide a remedy Ior the mental damage. It protects mental
- An assault is an intentional act which causes the imminent apprehension oI contact
coupled with the apparent ability to complete a battery
- . Every conscious, observed battery includes an assault.
Prima Facie Case Requirements:
1) Intent
2) Imminent apprehension oI harmIul/oIIensive contact
3) Apparent ability

1) Intent Iollows the same rules given beIore: SC and PTC tests. Keep the list oI
qualiIications in mind.
2) Imminent apprehension the anticipation oI a battery.
4 This is the Iocus oI analysis Ior assault. Words alone do not constitute an assault
because there is no imminent apprehension that they will be Iollowed.
4 One must be conscious to experience an assault.
4 Does not necessitate Iear. Only apprehension or anticipation.
4 Use battery`s standard Ior harmIul/oIIensive contact
3) Apparent ability a Iact sensitive inquiry, and as such, will vary Irom case to case.
4 Most jurisdictions Iind that once Im. App. Is Iound, App. Ab. goes hand in hand.

IV False Imprisonment
The tort oI Ialse imprisonment exists as a remedy Ior a physical trespass. It protects physical
- False imprisonment is the intentional restraint oI another`s physical liberty against his or
her will without adequate legal justiIication.
- Prima Facie Case Requirements:
1) Intentional restraint
2) Against the will oI another
3) Without legal justiIication
1) Intent Iollows the same rules given beIore: SC and PTC tests. Keep the list oI
qualiIications in mind.
4 The restraint does not have to be literally physical; it need only restrict the
physical liberty oI another. The courts have ruled Ialse imprisonment in an area as
large as a state, however, have drawn the line a countries which are deemed too
great an area to be imprisoned.
4 Does not include reIusal to admit entry.
4 Includes 'pranks, which ties back into the good Iaith mistake rule.
4 II a reasonable means oI escape exists, then there is NOT Ialse imprisonment
4 II the plaintiII is unaware oI the exit, then there IS Ialse imprisonment.
4 Unreasonable escape iI:
1) Exposure oI a person
2) Material harm to cloths
3) Danger oI substantial harm to another

4 II plaintiII is in no danger in their imprisonment, and could escape by
unreasonable means, deIendant is not liable Ior damages they may incur during
such an escape.

2) Against the will oI another there are two components to this element. One or the other
need be satisIied. One must be:
A) Aware oI conIinement or
B) Harmed by the conIinement
- A) Being aware requires being awake. Being unable to recall the conIinement later due to
a Ioggy memory does not preclude a Ialse imprisonment claim.
- B) Harm, like in battery, should be Iairly easy to demonstrate. It is a Iactual inquiry.
4 It is not against someone`s will iI they agree to stay
4 One may be restrained by acts or words they Iear to disregard. In such a situation
their consent is not held against them.
4 iving into moral pressure does not count as an objection.

3) Without legal JustiIication The police have legal justiIication to detain someone iI they
a. Probable cause or
b. A warrant Ior arrest
4 Being arrested without either leads to 'Ialse arrest, a sub-doctrine oI Ialse
4 However, being convicted oI the oIIense is a complete deIense Ior Ialse arrest
4 The shopkeeper rule allows merchants to detain persons they reasonably suspect
oI shop liIting Ior a reasonable time.
V Intentional InIliction oI Emotional Distress
IIED exists to protect mental tranquility. Was originally only an aspect oI damages, but became
more widely accepted during the 1960s and 70s with the advent oI psychological medicine.
One who intentionally inIlicts, through extreme and outrageous behavior, severe emotional
damage is liable Ior that distress and any physical damage it causes.

Prima Iacie case requirements:
1) Intentional
2) Extreme or Outrageous
3) Causal connection between wrongIul conduct and distress
4) Must be severe

1 Follows the same rules as other intentional torts, except IIED cannot be transIerred. It must
be targeted at the plaintiII.
4 There is an exception Ior Iamily members iI deIendant simply knew they were
2 The conduct must go beyond the limits which are tolerable by society.
4 The law does not protect the abnormally sensitive person.
4 II the deIendant knew oI plaintiII`s sensitivity and preyed upon it, it will allow Ior
an IIED claim.
4 The law will consider some speciIic classes oI person`s sensitivities, like children
or rape victims.
3 Casual Connection This is a Iact sensitive inquiry.
4 Severity Requires a beIore and aIter comparison.
4 Simply crying is not suIIicient to prove IIED.
4 Some jurisdictions require evidence supported by expert witness testimony.
4 Most will rely on the deIendant`s conduct itselI
4 Will also look to physical symptoms
4 Severity parallels damage award.
VI Trespass to Land
This tort exists to protect possessory rights to exclusive ownership.
The Intentional incursion onto the land oI another
Prima Facie case requirements:
1) Intentional entry
2) Against will oI the owner
- No damages have to be proved
1 Intent, same as other intentional torts.
4 II through the entry, the deIendant takes possession oI the land, plaintiII may have
a cause oI action Ior ejectment. This would entitle the plaintiII to get a sheriII and
remove the deIendant.
4 II trespass to land is Iound, it does not matter what the deIendant was doing on the
land. Even iI it was beneIicial. This connects back to the idea that intent does not
consider motive.
4 ::s est sol:2 sky to soil, traditional limits oI property rights

4 FAA regulations dictate that all airspace necessary Ior saIe takeoII and landing
belongs to the public.
2 - Against will oI the owner
4 Owner retains the right to deny anyone access to their land
4 Exceptions:
1- Public utilities
2- Innkeepers
3- Common carriers
4 Privilege to be on someone`s land may expire because oI:
1- Time II guest knows they are no longer welcome
2- Location guest may over step there bounds
3- Purpose guest preIorms some act they shouldn`t, like arson
4 DeIendant is liable Ior the consequence oI their trespass, even iI they were not
VI Trespass to Chattels
Protects property rights.
Trespass to chattel is the intentional intermeddling with the chattel oI another that either a)
dispossesses the chattel; b) damages chattel; c) deprives the owner oI use oI the chattel; or d)
either harms an owner physically or the owner`s interests.
- Must prove damages
- Automatic nominal damages iI liable, to protect against other intermeddlers.
- Little brother to Tort oI Conversion, covers less than total loss
There are diIIerent prima Iacie case requirements Ior each type oI intermeddling:
1) Intent Same Ior each
2) Dispossessed / Impaired / deprived / harmed
3) C must additionally prove damages, a b and d take care oI that in element two:
4 Why not A? Dispossession oI chattel is regarded as damage in itselI.
4 Mere interIerence must prove damage (c).
VII Conversion
An intentional exercise oI dominion or control over a chattel oI another which so seriously
interIeres with the right oI another to control it that the actor may justly be required to pay the
owner the Iull value oI the chattel.
1) Intent
2) Dominion or Control

3) Severity
4 Land, and anything attached to it, cannot be converted. II the things attached, like
crops, are severed Irom the land, they become chattel and a plaintiII may bring
action Ior conversion.
4 Anyone who is in possession oI a chattel can maintain an action Ior conversion,
even iI their possession is wrongIul and in deIiance oI the true owner.
4 Allows recovery by those who do
1- Intent same tests
- Can be liable even iI deIendant was not subjectively at Iault. ood Iaith mistakes do not
stop intent, may inIluence punitive damages.
4 ood Faith Purchases, there is a distinction between purchases that transIer a title
and those that do not
Purchasing stolen goods is conversion, thieI cannot give title
Purchasing stolen goods obtained through Iraud, not conversion, title was
transIerred to thieI.
Purchasing stolen goods through a dealer oI the same kind, not conversion

2- Dominion or Control
How an actor converted the chattel:
4 Acquiring possession (stealing it)
4 Destroying it (killing an animal)
4 Using it up
4 Receiving it (purchasing Irom a thieI)
4 Throwing it away
4 Misdelivering it
Money must have changed hands so the chattel would be legally the
plaintiII`s when it is lost
4 ReIusing to surrender it
May make two causes oI action: one when possession was taken, another
when it was not returned
Returning goods may not bar the action Ior conversion, but might reduce
3- Severe - Must render the chattel useless, either through extreme inconvenience or
4 Measure Ior damages is the market value oI the chattel at the time the conversion
took place.
4 Damages cannot be recovered on the basis oI sentiment.
4 Outrageous behavior may allow plaintiII to recover emotional damages
4 Punitive damages may be recovered iI the conversion was malicious

VIII Privileges
Some deIenses will apply to all torts towards people and property. Some apply just to property
and others just to people.
- Issue is not the privilege, the privilege arises because there is something to deIend again.
IX Consent: Applies to both people and property.
- Two types oI consent exist.
4 Expressed verbalized, written
4 Implied Actors can only be guided by overt acts and physical maniIestations oI
4 instances where consent is not applicable:
1) The plaintiII is mistaken oI the nature or character oI the deIendant
2) Consent is coerced
3) There is a situation that no one could consent to, like statutory rape
4) The plaintiII lacks the capacity to consent
4 Consent to tortious acts is not implied by participation in violent sports
4 Doctors must, generally, obtain consent Irom their patients.
4 Consent cannot be Iraudulently induced.
- Medical Care Exception: 1) patient is unconscious or incompetent, 2) there is risk oI
serious bodily harm iI treatment is delayed 3) a reasonable person would not object to the
treatment 4) the doctor has no reason to believe the patient would object to the treatment.
- Extended Operation: II a surgeon Iinds a new, damaging ailment in the same area oI
incision he is operation on, he/she may elect to extend the operation without asking
4 Consent is ineIIective iI the person is drunk
4 Consent may be invalidated iI it was in violation oI a criminal statute. Depends on
the jurisdiction, considerations: a) denying compensation to a wrongdoer who is
injured in the course oI that wrongdoing, b) the deterrent eIIect oI not allowing
compensations c) the question oI whether the intentional tort actually took place,
and d) the maxim 'in equal guilt, the position oI the deIendant is stronger.
X SelI-DeIense
Anyone is privileged to use reasonable Iorce to deIend himselI against the battery oI another.

- II a deIendant REASONABLY believes the Iorce is necessary and a REASONABLE
PERSON in the same position would believe the same, there is a privilege EVEN IF they
are mistaken about the need Ior Iorce.
- It is an aIIirmative deIense, meaning the deIendant must demonstrate the reasonable
person standard
- UNLESS the deIendant is a police oIIicer. In that case, the plaintiII must demonstrate the
prima Iacie elements Ior a battery exist and that the Iorce was unreasonable.
- Once the threat oI harm is gone, the privilege disappears.
- Insults do not justiIy selI-deIense but provocation may mitigate damages.
- DeIendant has burden oI proving Iorce was reasonable.
- TransIerred intent also carries over: deIending against A and hitting B does not make one
liable to B, absent negligence
XI DeIense oI Others
Similar to selI-deIense, most cases involve Iamily members.
- The restatement oI torts has adopted the view that reasonable Iorce is justiIied even when
mistaken that it is necessary
- Main question is use oI Iorce, like selI-deIense
XII DeIense oI Property
Reasonable Iorce is justiIied when deIending one`s property.
- At .ommon law, deadly Iorce is never justiIied in deIending property. SelI-deIense takes
over iI one Ieels like they are threatened.
- Statutes like the 'Make My Day laws permit the use oI deadly Iorce when deIending a
home against intruders.
- Absent this, only reasonable Iorce necessary to protect property is justiIied.
XIII Recovery oI Property
Reasonable Iorce is justiIied in pursuit oI the recovery oI property
- Recovery must 1) come in continuous, Iresh, hot pursuit (aww yeah) oI dispossession and
2) must demand property back. No Iorce will be justiIied without these elements.
- II mistaken, recovery oI property will not act as a deIense.
- Again, only reasonable Iorce that does not breach the peace.
- Merchant`s Privilege: able to detain suspected shopliIters provided they have 1) a proper
cause Ior detention 2) proper purpose, which includes only searching belongings and
calling the police, 3) do so in a reasonable manner, and 4) the detention is Ior a
reasonable time. While this is a conservative privilege, it has been expanded to include
the area immediately adjacent to the shop as well as hot pursuit oI a Ileeing shopliIter.

XIV Necessity
Otherwise tortious acts may be justiIied out oI necessity. Applies exclusively to property.
Three ways property might be taken:
1) War Powers Act
2) Eminent Domain, in the IiIth amendment
3) Necessity
- War Powers and eminent domain both Iollow court proceedings and grantee
compensation Ior the property.
- A growing number oI states have statutes which will compensate Ior necessity
Two types:
- Public Necessity: SacriIice oI private goods Ior the public good. Public Necessity,
traditionally, would not compensate, but many states have statutes allotting Ior some
amount oI compensation.
4 An emergency is not suIIicient Ior Public Necessity. There must be an imminent,
impending threat to the community or a community interest.
- Private Necessity: A sacriIices B`s property Ior A. In this situation, A would compensate
B`s damages because A trespassed to protect his own property. Once a threat on your liIe
is removed, you must compensate Ior any damage.
Negligence regulates unreasonable risks.
- Risks are dangers that are known or should have been known.
4 Known an actual knowledge
4 Should have been known Constructive knowledge, justiIies the imputation oI
knowledge on an individual
4 Can`t regulate all risks, only unreasonable risks
Four elements make up the prima Iacie requirements. All must be proven to establish negligence.
A. Is there a duty Ior reasonable care?
B. Was there a breach oI that duty?
C. Was the breach oI duty the cause and proximate cause oI injury?
D. Were there actual damages done?
Negligence may be used in three ways:
1) IdentiIying the context oI a case (This is a case oI negligence)
2) The liability component Ior a deIendant (The deIendant was negligent)

3) The context oI conduct (Elements one and two, was there a duty?)
Aegligence, Elements 1&2
- A duty exists where the law is justiIied in imposing a special obligation between the
plaintiII and the deIendant.
- These obligations or duties exist only where there are unreasonable risks.
%wo questions
1) Is there a duty?
2) If so, what is it?
Q1: Is there a duty?
- This is a question oI law. Once a duty is established one only needs to reIer to precedent.
- Three tests exist at common law to asses Ioreseeable risks:
- Magnitude oI Risk Test , Risk Utility Test , and the Carroll Towing Test
Magnitude oI Risk Test - Asks iI the risk is great enough that a reasonably prudent person would
avoid it.
4 Not concerned with probability
4 'Citizen v. Citizen cases
Risk Utility (Turntable) Test - Is there a and feasible way to reduce the risk?
4 Practical: Cheap
4 Feasible: easy
4 'Citizen v. Business cases
Carroll Towing Takes an algebraic approach, asking iI the burden oI care (B) is less than the
probability (meaning Ioreseeability) (P) oI injury (L).
4 Maritime or Admiralty cases
- At common law, the three tests are said to be mutually exclusive, however, each test is
designed to reach the same result. ThereIore misapplication should not become an issue.
- Once a duty is established by the court, it remains and precedent is all that needs to be
Q2: What is that duty?
- eneral rule: What a reasonably prudent person in the same or similar circumstances
would do. (RPP SSC)

- The RPP is an ideal, objective standard. He/she should be a reIlection oI the community,
which might be local, regional or even global given todays globalized culture.
- The jury decides what the RPP looks like and iI this element has been met.
- Judge may prescribe relevant, or Iacts inIluencing the RPPs behavior.
Custom and use may be entered as evidence iI:
1) The custom is widely known to the community
2) The deIendant knows about the custom
Custom and use is not dispositive. Just because many people may be doing something it does
not make it reasonable. The jury decides iI this circumstance is enough to warrant a RPP to
modiIy their behavior.
Child`s standard oI care departs the most Irom the RPP Iormula, it is a subjective inquiry
applied to minors.
4 Asks what a child oI the same background, education and experience would have
4 Children will be held to an adults standard oI care iI they are either engaging in
adult or inherently dangerous activities.
4 Some courts maintain arbitrary date limits, so it would be wise to check the local
courts policy
Insanity Insanity will not be a relevant circumstance iI it is long term because the deIendant
should have Ioreseen the risk. A sudden, short term attack, commonly called temporary insanity,
can provide a deIense through a relevant circumstance.
Disabilities People with long term disabilities, like blindness, are held to the standard oI care
someone with their same disability would have exercised.
- Ignorance is not a relevant circumstance where a RPP would have made an attempt to
Iind out the appropriate inIormation.
Emergency can be a relevant circumstance, provided it deprives the deIendant oI the
opportunity to think clearly and they did not create the emergency.
4 II the emergency was Ioreseeable, it is not a relevant circumstance

ProIessional Standard oI Care A proIessional is one who holds themselves out as having
superior knowledge or skill in a given area. They are held to the standard that includes their
proIession in the SSC.

Being a proIessional imposes 6 obligations:
1) Must possess the skills and knowledge they claim to have
2) Must use those abilities in a good Iaith eIIort to the beneIit oI their client.
3) Must behave as a RPP.
4) Must use expert testimony to prove or disprove deviation except in cases oI gross
) Expert testimony must Iirst describe what the RPP standard is
6) Must show how it was deviated Irom
a. Undisputed expert testimony is binding on the court!
Locality rule to national standard Malpractice Ior doctors operated, historically, on a rule that
beneIited rural areas which only held physicians accountable to the level oI care oI a doctor in
the region where they lived. This imposed evidentiary and substantive issues (docs wouldn`t
testiIy against their Iriends, couldn`t get expert witnesses). Many courts now use a National
Standard, which looks to the national community oI doctors.
- Because proIessionals are engaged in work that is highly technical, beyond the
knowledge oI the lay person, expert witnesses are required.
Suits Ior proIessional negligence are called malpractice. They compare the deIendant to a
normal, practicing member in good standing with the community.
Informed Consent - Medical Malpractice. Full disclosure oI all material risks must be made. A
risk is material is it would be likely to eIIect a patient`s decision.
Cause oI action based on InIormed Consent
1. Duty to InIorm, Doctrine oI InIormed Consent A patient has the right to selI-
determination, to that end, doctors have a duty to inform their patients oI risks and
alternatives to a procedure, except when:
A) The risk is one a patient knows or should have known
B) Cases where disclose detrimental
C) There is an emergency and the patient is incapacitated

2. Causation Subjective question, asks only what the plaintiII would have done. An
objective test would violate the policy objective.
That being said, there are some jurisdictions that use a Reasonable Patient
Causal Connection between doc`s choice an injury
3. Damages
Duty to inIorm includes conIlicts oI interest.

Some jurisdictions ask what a reasonable doctor would discloses while others
ask what a reasonable patient would want to know
Withholding inIormation and changes oI conditions can mean a lack oI
inIormed consent.
Court should not determine RPP SSC
%wo Alternatives exist to tell us if a duty exists: 'iolation of Statute and Res Ipsa Loquitor
There are two relevant issues concerning RIL:
Q1 Does the Statute or Doctrine apple?
Q2 II so, what is the procedural eIIect?

'I - 'iolation of Statute
Concerned with the applicability oI quasi-criminal statutes leading to negligence. (NEVER
when the statute applies to a license).
Always plead common law negligence because, in the absence oI precedence,
it is unknown iI the a statute will be applied.
Violation oI a statute is a shortcut to establishing negligence because:
statutes tell us what the duty is - the enacted law, and
what the RPP SSC would do, obey the law.
Violation oI a statute only inIorms us oI the Iirst two prima Iacie elements oI negligence.
Q1 - To determine this ask:
1. PlaintiII in class to be protected
2. Harm the one protected against
3. Is Public Policy Iurthered
AIIorded greatest weight by the court. Corresponding common law duties to
may inIluence a judge`s willingness to create liability Ior violating a statute.
Q2 There are three possible procedural eIIects
Procedural eIIect is concerned with the psychological impact oI jury instructions.
There are three possible procedural eIIects with unique impacts. It is a misnomer because all oI
the eIIects are the same, providing elements 1 and 2.

1) 1 Negligence per se- (negligence as a matter oI law) gives the jury instruction that
can conIuse the jury and lead them to conIuse negligence with strict liability.

2) Rebuttable Presumption- gives the plaintiII the elements oI duty and breach, but the
deIendant may provide an excuse Ior the violation oI statute. The excuse must be
strong and concise in order to be accepted by the jury. II the excuse is accepted by
the jury, then the plaintiII will most likely lose unless they can successIully plead
common law negligence.

4 Some statutes, like child labor or Pure Food Acts, do not have
reasonable excuses.
3 Evidence oI Negligence jury has the broad discretion to determine negligence in
any manner it deems Iit. This procedural eIIect has the weakest legal eIIect because it has no
constraints on the jury.
A judge decides which instructions to give .
#:les of Law
%he plaintiff has three d:ties
1) B:rden of Pleading
2) o2ing forward with eno:gh evidence that all of the pri2a facie case req:ire2ents
are present
3) B:rden of pers:ading the trier of fact (:ry).
%wo types of Evidence.
1) Direct Eye-Witness Evidence. %his 2ay be 2anip:lated and can be torn apart by the
other side.
2) irc:2stantial Evidence- evidence of a fact fro2 which an inference of the existence
of the face in disp:te can be drawn. Most say that circ:2stantial evidence is better to
have than eye-witness beca:se the proof is there, and the evidence is 2:ch harder to
q:estion. With this kind of evidence, one 2:st prove '2ore likely than not` that the
opposing party is liable.
'II - Res Ipsa Loquitor
'The Thing Speaks Ior ItselI
In some circumstances, the mere Iact oI an accident occurring raises an inIerence that
establishes a prima Iacie case Ior negligence. It is employed in rare and unusual cases on the

grounds that the deIendant has superior evidence. Res Ipsa Loquitor is an exception to the
two general rules oI Civil Liability:
1) PlaintiII has the burden oI prooI
2) The law will never presume liability
Res Ipsa Loquitor exists to Iurther the publi. poli.y that the law will assist
those wrongIully injured.
Q1 - To determine iI the doctrine applies:
1) PlaintiII must demonstrate that the accident doesn`t normally occur without negligent
4 Concerned with the character oI the event. It must be a rare and
unusual event which does not normally occur in the absence oI
negligence. The conclusion oI this objective can be provided by either
common knowledge or expert witness testimony.
4 Typically not applicable to car crashes, too common and easily
2) The deIendant had control over the instrument that caused the plaintiII`s injuries.
4 This way the court can know, more likely than not the correct
deIendant is beIore them. PlaintiII should produce evidence that
eliminates equal probability that someone else is truly liable
Medical Treatment Exception DeIendants must absolve themselves when
the plaintiII is attempting to recover Ior injuries received while unconscious
and receiving medical treatment.
3) The plaintiII must prove they were not guilty oI contributory negligence.
4 This is NOT a common requirement in many jurisdictions.
!ro.edural Effe.t
There are three possible procedural eIIects Ior Res Ipsa Loquitur:
1) InIerence oI negligence- gives the jury broad discretion. The most it can give the
plaintiII are the elements oI duty and breach

2) Rebuttable presumption- With this procedural eIIect, the deIendant is allowed to
explain precisely how the injury occurred without their negligence. It is not enough
Ior the DeIendant to show they exercised reasonable care. Can lead the jury to give
the plaintiII all 4 elements oI negligence unlike violation oI statute.

3) Burden oI prooI is shiIted to the deIendant- the plaintiII almost always wins with this
procedural eIIect. Also leads to a prima Iacie case Ior negligence.


Which instruction is given hinges on the rarity oI the event.
'III -Legal Cause
Aegligence, Element 1hree
An action must be both the Cause in Fact and Proximate Cause oI the plaintiII`s injuries
Cause in Fa.t Demonstrating that the action was the cause in Iact requires plaintiII to prove
there is a causal relationship between the deIendant`s action and plaintiII`s injury.
At a minimum, the plaintiII must provide evidence that answers the questions:
1) Who caused?
2) What caused?
3) How caused?
The answers to these questions must point to the deIendant`s negligence.
Three exceptions exist to these tests as a way to provide remedies to wrongly injured plaintiIIs,
lacking suIIicient prooI.
1) Summers v. Tice concurrent acts oI negligence Irom multiple deIendants with only one
2) Enterprise liability allowing Ior a whole industry to stand trial when the injury was
caused only by one member, provided that the industry is quite small and closely
3) Market Share Liability- allowing multiple deIendants to stand trial that make up a
majority oI the market share oI the product which caused the injury.
4 Some courts only allow a plaintiII to collect damages which represent
the oI the market share owned by each deIendant.

Additionally, one may always ask the court to make a new exception.
At common law, there are two tests to determine cause:
1) Sine Qua Non / But For test - Jury is instructed to create a hypothetical situation where
the deIendant`s negligence is ignored to determine iI the consequences would have still
occurred. It has been criticized on two grounds:
Test would not work with multiple deIendants
Instructed the jury to ignore evidence, which undermines its purposes
2) Substantial Factor Test Works essentially the same way but, when multiple deIendants
exist, they are lumped together.

Cause in Fact must be determined beIore Proximate Cause can be determined.
!roximate Cause The process oI limiting liability to some socially acceptable range.
!ubli. !oli.y - Limiting liability is important. We must cut oII liability somewhere out oI
respect Ior Iinancial security. Cause in Iact by itselI would leave deIendants open to an unceasing
chain oI liability.
The test Ior Proximate Cause is a test oI Foreseeability
An exception to the test oI Foreseeability is the Egg Shell Rule
A) States that a deIendant must take the plaintiII as he Iinds him.
B) Holds deIendant liable Ior the onset oI a pre-existing condition aIter a
negligent act
C) Is only applicable when it is a naturally occurring, pre-existing condition
a. Some courts limit the application to physical injuries, others protect
the Iragile psyche as well.
D) No outside agency can be responsible Ior its cause.
E) Rationale behind the rule is that we want to protect against personal injuries
Intervening/Superseding Cause
Intervening causes have no eIIect on an analysis oI negligence; however, iI it becomes a
superseding cause then it breaks the chain between cause and eIIect. The test asks iI the cause
was Ioreseeable, that is, iI the act was within the scope oI the risk. II so, then all deIendants are
liable. May require an expert wittiness to describe want the standard oI care was and how it was
deviated Irom.
4 Traditionally at common law Criminal A.ts where never seen, and
a.ts of God where always seen, as superseding causes. Today,
criminal acts will be a superseding cause iI it was unIoreseeable and,
conversely, Ioreseeable acts oI od will not be superseding.
4 Sui.ide is generally not a superceeding cause but may become one iI it
results Irom an uncontrollable urge, caused by the deIendant`s
negligence. .
4 Res.ue Do.trine (!ubli. !oli.y)
'peril invites rescue
Rescue is ALWAYS Ioreseeable and never superceeding
It is Ioreseeable and presumed.

oint %ortfeasors

BeIore addressing the issue oI a deIendant`s or deIendants` conduct, the doctrine oI Joint
TortIeasors must be examined:
One plaintiII may only have one recovery Ior their damages. This is because
damages are designed to put a plaintiII into their pre-injury position. All
damages, besides pain and suIIering, must be show to a mathematical
The doctrine oI joint tortIeasors joins multiple parties into order to avoid duplicative outcomes. It
has been the subject oI tort reIorm in all jurisdictions and as such, varies Irom state to state.
Traditionally, the plaintiII would 'own a lawsuit and could choose which deIendants to bring in.
Today, all parties own a suit and a deIendant is Iree to Iile 3
party suits and cross-claims.

Two relevant issues arise Irom oI Doctrine oI Joint TortIeasors
1) Whether the law is justiIied in its implementation
2) What is the consequence oI implementation?

To answer the Iirst question, we examine three possible scenarios:
1) Concert oI Action- there is a concert oI action when multiple tortIeasors exercise an
agreement to engage in tortuous conduct. The agreement may be expressed, implied,
or tacit.

2) Breach oI concurrent duties- Applies to joint tortIeasors who were all negligent

3) Indivisibility oI harm- is applicable when it is impossible Ior the plaintiII to
determine who among several deIendants caused what injury. Applies to negligent
and intentional joint tortIeasors
For the second issue oI what happens as a consequence oI making them joint tortIeasors,
there are Iive possibilities:
1) Joint and Several Liability- each joint tortIeasor is held jointly and severally liable.
Either they all pay everything or one pays everything
All, Some, or one deIendant is responsible Ior Iull amount oI damages.

2) SatisIaction - when the plaintiII has already been made whole by the payment oI one
or all joint tortIeasors, plaintiII is unable to receive more compensation.


3) Release
enerally, release oI one deIendant Release oI all
4 UNLESS, where the plaintiII expressly reserves the right to claims
against the other tortIeasors
This results in a credit oI settlement against the judgment. So,
iI a plaintiII is awarded 100, settles with one deIendant Ior 0,
still may collect the other 0.
4) Contribution
Allows one tortIeasor to collect part oI a payment Irom another.
Does not apply to intentional tortIeasors, do not want to reward criminals

4 Does not apply when the plaintiII has no cause oI action against the
joint tortIeasor. Also, a good Iaith settlement with the plaintiII protects
the settling deIendant Irom a contribution claim brought be a non-
settling deIendant.
) Indemnity
4 Where paying party is innocent and it was NOT the cause oI the
injury, the law aIIords the right to 100 reimbursement Irom the party
which was the primary cause oI injury.

!ubli. !oli.y
As a general rule, there is no duty to help anyone where the risks were not oI the
deIendant`s own making.
However, where a special relationship exists between the plaintiII and the deIendant, then
a duty may be owed.
1. Between plaintiII and deIendant where the deIendant has control oI the
2. Can be between the deIendant and a third party.
3. Examples: Master-Servant, Invitee-Inviter, Social Host
In the past, there was a long laundry list oI relationships that qualiIied as special
relationships, but over time 3 Irameworks were determined Ior resolving whether a
special relationship exists:
1) Duty arises when the deIendant assumes responsibility. By taking control, the
deIendant prevents others Irom coming to aid.
2) The deIendant voluntarily begins an undertaking
3) The deIendant makes a gratuitous promise to assist.

Negligent Infli.tion of Emotional Distress
One who negligent conduct causes in another severe emotional distress. Must go beyond
the bounds oI acceptable behavior. The conduct must be beyond the range oI tolerance oI
a reasonable person, the law will not assist the abnormally sensitive person.
Prima Iacie requirements: SAME AS NELIENCE NIED will take things like
'severity into account in the 'damages section
ii. eneral Rule: Only recover IF the plaintiII was in the one of Danger, doesn`t have
to be physical impact.
a. EXCEPTION - iI it was Ioreseeable that a third party
would be injured.
a. Where plaintiII was located near the scene oI the
b. Observance oI the accident
c. Familial relationship.
3. Unborn Children
i. Majority Rule: Viability establishes the line/time at which a cause oI action will prove
in Iavor oI the still born

ii. Minority Rule: a stillborn does not have a cause oI action, must have seen the light oI
4. wners and ..upiers of Land - nother way to deter2ine DU% :nder p:blic policy
utside the !remises
i. Use oI Property cannot endanger others outside.
ii. Owner has a duty to protect others outside the premises Irom artiIicial
conditions on the land which may cause injury.
1. ArtiIicial Conditions
a. Must have notice that the dangers exist.
b. Exception to notice Where the acts oI the operator creates
the condition.
iii. No duty to protect against natural causes
a. Traditionally there was a Rural(no)/Urban(yes) dichotomy
b. Modern Must have actual knowledge or should have
actual knowledge.
n the !remises
b. Duty is determined depending on the classiIication oI the injured.
i. Trespasser
1. DeIined On premises without permission

2. The duty is to reIrain Irom purposeIully harming the trespasser
a. iI the trespasser is known elevates the trespasser to the
level oI a licensee
ii. Licensee
1. DeIined Must have an invitation (implied/expressed) Ior beneIit
oI a licensee. (ex. Social uest)
2. Duty
a. To WARN oI KNOWN dangers that the Licensee
DOESNT know about.
iii. Invitee
1. DeIined Someone on virtue oI invitation (implied/expressed) Ior
owner/occupier`s Iurtherance oI business or beneIit.
2. Duty to keep their premises reasonably saIe
a. To inspect
b. To WARN until REPAIR
i. Can only warn Ior a reasonable time.
3. rocery Store Exception:
a. A warning is suIIicient iI owner knows the invitee will
encounter and ignore the warning.
4. Note: An invitee can IorIeit that status and revert back to
trespasser or licensee IF they exceed the scope, purpose, time, or
area oI the invitation.
iv. A minority oI jurisdictions have abolished the classiIication system
5. !erson`s utside the Established Categories
a. Children
i. The Categories oI trespasser-licensee-invitee are abolished
ii. Attractive Nuisance Doctrine
1. Owners owes a duty to the child iI the owner is aware oI a
condition on the land with would entice a child to enter the
2. Only where the burden oI eliminating the risk is less than the
probable/Ioreseeable injury.
b. Person`s Privileged to Enter
i. FireIighter`s Rule
1. ProIessional reason Ior beneIit oI owner
2. The owner has no duty to protect against any reasonable/ordinary
a. II the negligent act is what necessitated the rescue.iI NOT
and another ROSSLY negligent act, then the owner owes
a duty.
6. Lessor and Lessee
a. eneral Rule:
i. The landlord may NOT be held liable Ior the injuries oI the guests oI their
b. Exceptions
i. Dangers known to the Lessor and not the Lessee

ii. Conditions dangerous to the Outside Premises
iii. Leased Ior purpose Ior admission oI the public
1. Obligation PRIOR to transIer to keep reasonably saIe
iv. Common areas shared by many tenants hallways, eg.
v. Where Lessor contracts to repair
vi. Negligence on part oI the Lessor on such repairs
vii. Further exceptions even where the plaintiII does not Iall with in any oI the
6 exceptions listed above.

Note: Andrew`s dissent in Palsgraf notes that the world owes the world a duty. This would put
everyone on notice and assumes the duty requirement.
Element Four: Damages
I. Rules oI Damages
1. Objective is to put plaintiII in pre injury position
2. Absent any statute to the contrary, plaintiII gets only one recovery
3. Where possible, must be shown to mathematical exactitude
4. PlaintiII is not entitled to recover Ior any element oI damages they
do not oIIer prooI oI
. When recovering Ior permanent injury, the amount oI the reward
must be discounted to present day cash value
a. II invested today, the amount would reach the entirety oI
the judgments on the day they die

Two questions are ALLWAYS relevant:
1) Is the damage subject to the rule oI mathematical exactitude?
2) Is the damage subject to the rule oI discount?
4 II so, how does one prove them?
Bills, liIe expectancy tables, speculation
II. 6 Elements oI Damages.
a. Non-Economic Jury has Broad discretion with amounts
i. Past Pain and SuIIering and Future Pain and SuIIering
1. Physical
2. Mental
3. Brings in PlaintiII`s Iamily, Iriends, doctors, plaintiII themselves
4. Not discounted to present day cash value
b. Economic (must prove to a mathematical exactitude or IorIeit)
i. (Past) Loss oI Earnings
1. What you should have made up until this moment had you been
able to work at your previous job.
ii. (Future) Loss oI Earning Capacity
1. Need to bring in an economist and a vocational therapist
2. TestiIy to what would have earned, might have earned
a. What you might REASONABLY become in the Iuture
b. Look at liIespan
c. Work span

d. Look at actuarial tables
3. In the case oI children
a. Those who have never been employed
b. Use speculative evidence, but still must have mathematical
iii. Past Medical
1. Necessary and Appropriate
2. Total oI the bills
iv. Future Medical
1. As doctor and look at Iuture surgeries, medicine, and the like.
2. Jury can cushion judgment a little to look at unspeciIied situations.
3. For a Permanent Injury
a. The judgment must be discounted to present cash value
b. To where iI invested with the appropriate amount oI return,
then by the time they die, it will amount to the entirety oI
the judgment.
c. Excessive only iI it so SHOCKS the conscious oI the court that it is obvious
there was bias, passion, and/or prejudice on the part oI the jury.
i. PlaintiII adijure
ii. DeIendant remittiture

4 Hedonic damages loss oI liIe satisIaction
4 Loss of consortium loss oI a spouse`s ability to help around the house

Collateral Sour.e Rule
4 DeIendant should not beneIit Irom the plaintiII`s insurance/own
4 DeIendant cannot admit evidence oI a collateral beneIit to the plaintiII.
EXCEPTIONS ( to permit evidence oI a collateral source).
1) ReIute plaintiII`s testimony that they were compelled by
Iinancial need to return to work
2) ReIute plaintiII`s testimony they did not work when they had
3) Shoe the plaintiII had attributed the issue to some other
condition, like illness
4) Impeach testimony that plaintiII had paid Ior bills themselves
O f the so:rce was for any O%ER p:rpose than for
2itigating da2ages.
4 The PlaintiII MUST mitigate damages
IF Iailure to mitigate the deIendant is not
liable Ior those additional damages.
DeIendant is responsible Ior ALL the
mitigation damages.

IF surgery is the Iorm oI mitigation, then
the court will look to whether a
reasonable person would do it.
Measure oI property damages
4 Property that can be repaired
Fair Market value BeIore and AIter
4 Property that CANNOT be repaired market value oI the property at
the time it as destroyed
4 Sentimental value cannot be recovered.
Punitive Damages
4 Not entitled to punitive damages unless the deIendant was engaged in
egregious conduct, malice
I. Contributory Negligence
a. AT traditional common law all or nothing
i. Every person is obligated to use reasonable care Ior themselves.
1. Failure to do so, then contributory negligence.
2. II plaintiII was at all contributory negligent, then lost ALL right to
ii. Criticized
1. Not Iair Ior the plaintiII to bear the entire cost oI the injury. Only
slight negligence resulted in a complete loss.
iii. Erosion process
1. To make it an aIIirmative deIense
2. Make contributory negligence a question oI Iact Ior the jury
3. Restrict the claim oI contributory negligence to negligence,
excluding intentional torts
4. Last Clear Chan.e Do.trine
a. Contributory negligence oI the plaintiII will not bar the
right to recovery, IF the deIendant had the last clear chance
to protect Irom the plaintiII`s negligence.
b. Criticized because all it does is shiIt the entire burden oI
cost to the deIendant.
II. Comparative Fault
a. Objective Set out a mathematical threshold to which contributory negligence is
not applicable.
b. 2 kinds
i. Pure
1. PlaintiII`s damages are reduced in portion to the percentage oI
negligence attributed to him.
ii. ModiIied (2 kinds)
1. Not as great as 0 (0/0)
a. II less than 0 - Then Iollow the pure rule
b. II more than 0 - Then Iollow contributory negligence
2. Not greater than 49 (49/1)

a. II less than 49 - Then Iollow the pure rule
b. II more than 49 - Then Iollow contributory negligence.
c. 'Slight Only in South Dakota, apportions damages so long as the plaintiII`s
negligence was 'slight in comparison with the negligence oI the deIendant

III. Assumption oI the Risk
a. At early common law, this was considered a COMPLETE bar oI recovery
b. 2 Iorms expressed and implied
c. Expressed
i. Exculpatory Clause 'Hold Harmless (oIten in a K)
1. PlaintiII expressly exempt deIendant Irom liability oI own
2. eneral Rule Parties have the right to Ireely contract.
a. Two Issues:
i. Was the clause valid
1. It MUST Iollow the K in
ii. Is it subject to a public policy exception
1. Protected party intentionally caused harm or
engaged in gross negligence.
2. rossly unequal bargaining power,
exercised to deprive the person oI some
essential necessity (unconsionability).
iii. When it involves a public interest.
1. Cannot be criminal
2. It would shock the community to know that
the parties would K without liability.
3. No universal deIinition.
4. Typically an essential element oI society.