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Intentional Torts

The Big Picture
Rights to physical security and liberty cannot be absolute (because they negate the other in absolute). Tort law historically developed to compensate victims of a crime because criminal law is between state and the wrongdoer (early Holmes). By second half of 19th century tort law evolving into a distinctive substantive field addressing the problem of accidental injury (later Holmes).  “Argument from Policy”: public generally profits by individual activity; key is to accommodate “desirable” forms of risky behavior by limiting liability to unreasonable conduct that causes injury to others; injuries arising out of reasonable behavior are “inevitable” facts of social life that do not violate the victim’s right to physical security.  “Principle of reasonableness” embodies the policy decision of how to balance liberty and security. Tort liability achieves: 1. Compensation of Injuries: often through loss-sharing or loss-spreading, insurance. 2. Deterrence or Prevention of Injuries: deterrence of undesirable risky behavior. 3. Redress of Rights Violations Caused by Wrongful Conduct: not necessarily limited to payment of compensatory damages.


Harm to Body

1. 2. 3. 4. Act by D With intent to inflict a harmful or offensive touching Harmful or offensive touching Causation

1. Act by D  Act refers to volitional movement of D’s body.  Unconscious acts (e.g. epileptic seizures, persons asleep) are not volitional.  Persons not legally competent (e.g. children, insane) are capable of volitional acts 2. Intent  D must act with intent to inflict a harmful or offensive touching.  Intent is determined by whether D acted with desire to cause touching or belief that touching was substantially certain to occur.  P generally need not prove D’s intent to offend or injure, just that D intended a touching that might be offensive or harmful.  Although motives are immaterial in establishing prima facie case, D may be liable for punitive damages if malice is present.  Transferred Intent: If D acts intending to cause a battery, assault, false imprisonment, trespass to land, or trespass to chattels, he will be liable even if the particular harm or P is unexpected. 3. Harmful or Offensive Touching  Touching must involve contact with P’s person or something closely associated with P (e.g. knocking P’s hat off her head).  Touching is “harmful” if it injures, disfigures, or impairs the body.  Touching is “offensive” if it would offend a reasonable person’s sense of dignity (a hypersensitive reaction is insufficient).  P need not have knowledge of the touching at the time thereof. 4. Causation  D’s conduct must directly or indirectly bring about the injury.  Setting in motion the force that actually causes the touching suffices. 5. Damages  Actual damages are not required.  Compensatory (e.g. pain and suffering, medical bills) and punitive damages 2

(if D acted maliciously) are coverable.

BatteryRestatement (Second) of Torts, § 13
Battery: Hamrful Contact An actor is subject to liability to another for battery if (a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) A harmful contact with the person of the other directly or indirectly results

IntentRestatement (Third) of Torts, § 1
A person acts with the intent to produce a consequence if: (a) The person acts with the purpose of producing that consequence; or (b) The person acts knowing that the consequence is substantially certain to result.

Vosburg v. Putney
“Egg-Shell Skull” Rule Wis. 1891

Plaintiff is liable for all injuries resulting directly from his wrongful act whether he could or could not have foreseen them.


Causation  P’s apprehension must be legally caused by D’s act or something D set in motion (same as battery). “Don’t turn or I’ll shoot”). “Take back what you said or I’ll kill you”).  Words alone are ordinarily insufficient except where surrounding circumstances force P to rely on mere words (e. 2.  Nature of P’s Apprehension: P’s apprehension must be reasonable. 4. 4 . Damages  Actual damages are not required. Compensatory and punitive damages are recoverable (same as battery). where threat is of future harm). 2.g.Assault Elements 1. apparent ability to inflict a touching suffices. Act by D  Act must be volitional movement of the body. 4. Words may negate the threat (e.g.g. Fear is not required. “Duc! X just threw a rock at you!). Act by D With intent to cause apprehension of an immediate harmful or offensive touching Apprehension Causation 1. 5.g. intent to inflict a harmful or offensive touching or cause apprehension of a harmful or offensive touching). Intent  Same as battery (i. Apprehension  P must be placed in reasonable apprehension of imminent harmful or offensive touching of P’s (and not someone else’s) person and must be subjectively aware of the threat at the time thereof.  Source of Threatened Harm: D is liable if he arouses apprehension of harm from any source (e. A conditional threat may be an assault where D is not privileged to make the threat (e. 3.  Transferred intent doctrine is applicable.  Imminence of Threatened Harm: Threat of an imminent harmful or offensive touching is required.e. 3.

 Intent to confine is required. 5.  P may also recover for injuries suffered in a reasonable attempt to scare. Threats of immediate harm to P. or iv. P’s property.  Compensatory and punitive damages are recoverable (same as battery). Physical force exercised against P or a member of P’s family. ii. 4. Actual or apparent physical barriers to escape (includes refusing to release P when under a duty to do so). or P’s family. 2. 5 .False Imprisonment Elements 1. Confinement  P must be restricted to a limited area without knowledge of reasonable means of escape and must be aware of the confinement at the time thereof or else be harmed by the confinement. Intent  Measured by the desire or belief in substantial certainly test. but words alone may suffice. 3. iii. Causation  Confinement must be legally caused by D’s intentional act or a force set in motion by D (same as battery).  Cause of Confinement: may be by: i. 3. Assertion of legal authority and P’s submission thereto. 4. 2. Act by D  Act must be volitional. Damages  Actual damages are not required. Act by D With intent to confine P to a specific area Confinement Causation 1.

Extreme and outrageous conduct by D With intent to cause severe emotional distress Causation Severe emotional distress 1. The courts will consider the totality of the circumstances. 2. Act by D  D’s act must be extreme and outrageous. 5. Damages  Compensatory and punitive damages are recoverable. 3. Intent  D must intend to cause severe emotional distress.e. 6.  Words alone may suffice. D is liable for causing severe distress in a person with known sensitivities even if a reasonable person would not have been so distressed.  Extensionliability to third persons: D’s liability also includes emotional distress of members of the intended victim’s family if their presence was known to D.  However.  Reckless conduct (i. 4. but simple insults are not actionable.  Exceptions: Cases based on racial or gender attacks or insults may be actionable under state or federal law even if not amounting to a traditional tort. demonstrable physical injuries were required. Causation  Under early view. 4. Severe emotional distress  Distress must be more than a reasonable person could be expected to endure. 3.  Under modern view. where D disregards a high probability that his act will cause emotional distress) also suffices.  Doctrine of transferred intent is not applicable here. Defenses  Common law defenses to other intentional torts are irrelevant here.  Intent is inferred where D knows P is particularly sensitive.Intentional Infliction of Emotional Distress Elements 1. distress alone suffices outrageousness of conduct insures reliability of the claim. 2. 6 .

Defenses and Privileged Invasions of Personal Interests Consent Most courts treat consent as an affirmative defense. 3. (b) An immediate decision is necessary. Acts in excess of consent: if the invasion goes beyond the scope of consent. Mistake may be one of two types: 1. Types of Consent 1. 2. (c) There is no reason to believe P would withhold consent if able. 2. b. Actual (express) consent. 4. Fraud: Consent is ineffective if procured by fraud (unless the fraud relates to a collateral matter). 2. Duress: Consent given under duress (physical force or threats) is ineffective. the consent is ineffective. a. Consent implied by law: if necessary to sae a life or other important interests and: (a) P is unconscious or otherwise unable to consider the matter. Mistake: Ps consent is ineffective if due to a mistake caused by or known to D. Mistake of fact: if P fails to understand the nature or consequences of the invasion of her person or property. and (d) A reasonable person in P’s position would consent. Apparent consent: what the reasonable person would infer from custom or from P’s conduct. a few require plaintiff to show lack of consent as part of the prima facie case. 3. Mistake of law: A mistake of law caused by D renders P’s consent ineffective. her 7 . When consent is not a defense 1.

the claim is usually treated as negligence. the doctor may be liable for battery. Criminal Acts: [omitted]. Self-Defense (a) Non-deadly force Non-deadly force may be used if defendant reasonably believed plaintiff was about to inflict imminent bodily harm. Lack of consent in medical treatment: If a person did not give consent to medical treatment. or (4) Defendant intentionally injures a third-person (unintentional injuries create liability only if defendant is negligent). (2) Defendant uses excessive forcethis may give plaintiff the right to use force in self-defense. not as in international tort. (e) Reasonableness This is tested objectively (reasonable person standard). 5. (d) Limitations on right of self-defense The right to self-defense is limited where: (1) Defendant knows the danger is terminated. a. (c) Threats of force Defendant is privileged to threaten greater force than she could actually use if such threats would do no more than cause apprehension. (b) Deadly force Deadly force may be used if defendant reasonably believed plaintiff was about to inflict death or serious bodily harm. (3) Plaintiff’s conduct is privileged. and the force used was reasonably necessary to prevent the harm. 8 . b. Incapacity to Consent 6. Defendant is under no duty to retreat unless defendant recognized that plaintiff acted unintentionally or had mistaken defendant’s identity.consent is ineffective. Lack of informed consent: If P alleges that she was not adequately informed of the risks and benefits prior to surgery.

and (3) Defendant. (2) Defendant reasonably believes force is necessary to prevent or terminate the intrusion. as long as such threats only cause apprehension. intrusion must in fact constitute a threat of death or serious bodily harm to defendant or defendant’s family. Force to Effect Recapture of Chattels Wrongfully Withheld (a) Tortious dispossessions Defendant is privileged to use reasonable non-deadly force to recapture chattels of which he was tortiously dispossessed under the following conditions: (i) defendant is in fact entitled to immediate possession of the chattel. or the demand appears futile. The modern view protects the actor’s reasonable mistake. and (iv) recapture is effected from the dispossessor or a third party having knowledge that the property was stolen. defendant was diligent in discovering the loss and in his efforts to retake the chattel). (iii) defendant is in “fresh pursuit” (i. 9 . or customary in the locale. The traditional view protects defendant only if the person protected is actually privileged to defend herself. duress. and (ii) adequate warning is given or posted. If the devices threaten death or serious bodily harm. (ii) demand for return has been made by defendant and ignored. makes a demand that the intruder desist or leave (unless the demand appears futile).Defense of Third Persons A person may be privileged to use deadly force to protect another only to the extent the person defended would have been privileged to use deadly force under the circumstances. Force to Recover Possession of Land Wrongfully Withheld The majority view is such a case recognizes no privilege. The minority view permits prompt and reasonable non-deadly force when dispossession is achieved by fraud. or without claim of right. He may use nondeadly force if: (1) Intrusion by plaintiff is not privileged (or plaintiff led defendant to believe this). (c) Threats The Second Restatement permits defendant to threaten greater force than he is actually privileged to use. (b) Mechanical Devices Such devices may be used only where (i) reasonable and necessary. Defense of Land or Chattels (a) Non-deadly Force Defendant may not use deadly force to defend land or chattels. etc.e.. force. prior to the use of force.

(b) Other dispossessions In cases of non-tortious dispossession. the seller may repossess peacefully. But in conditional sales contract situations where the buyer defaults. (iii) only reasonable. there is no privilege to use force. Privilege of Arrest (a) Arrests for felonies without an arrest warrant. (c) “Shopkeeper’s Privilege” In most states. nondeadly force is used. and (iv) the detention is for only as long as is needed to conduct a reasonable investigation. 10 . a shopkeeper is privileged to detain temporarily for investigation if: (i) there are reasonable grounds to suspect the person detained. (ii) detention is on the store premises or in the immediate vicinity. A private citizen is privileged to arrest without a warrant only when a felony has in fact been committed and there are reasonable grounds to believe this person committed it.

a person with the right to immediate possession may maintain the action. Intent  Defendant must intend to intrude on the land or know with substantial certainty that his actions will cause entry. i. The transferred intent doctrine applies.) is treated as a nuisance. 3. Act by defendant  Defendant’s act must be volitional (same as battery). (Note: There may be a 11 . Note. an act by defendant with intent to invade the land. however. ii.Harm to Property Trespass to Land A prima facie case involves plaintiff in possession of land or entitled thereto. modern authority limits possession to the “immediate reaches” of the land. 2. vibrations. DistinguishNegligence Defendant is liable for negligent entry if damages are shown. 4. Failure to leave or remove an object after consent is withdrawn is also sufficient.. Plaintiff in possession or entitled to immediate possession Any possession (even wrongful possession) is sufficient. but he need not know the land belongs to another. that although a tenant has possession during a lease. etc. 5. 2. An intrusion of nonphysical nature (e. Act by defendant Intent Intrusion on Land Plaintiff in possession or entitled to immediate possession Causation 1.g. DistinguishStrict Liability Certain invasions are actionable on a strict liability theory. and causation. if no one is in actual possession. 3. and intrusion upon the land. courts usually permit an action by the landlord or tenant. 4. smoke. However. but each can recover only for damages to his own interest.  Airspace above land There is no right to possession of airspace above the normal minimum flight altitude. Intrusion on land Defendant must personally enter the land or cause entry by a third person or object. Elements 1. Below the minimum flight altitude.

g. Causation The invasion must be leally caused by defendant’s act or by a force set in motion thereby. Damages Actual damages generally are not required.. 12 . Defendant is liable for any harm caused. trespasser can be liable for causing owner to have heart attack). 5. 6. even if it was not foreseeable (e.possibility of a nuisance action even though there is no actionable trespass.

.g. Intent Defendant must have intended to deal with the chattel in the manner in which he did so.g. If there is only an intermeddling. The transferred intent doctrine applies. and causation.Trespass to Chattels A prima facie case involves plaintiff in possession of a chattel or entitled thereto.. an act by defendant with intent to invade a chattel interest. Causation The invasion must have been legally caused by defendant’s intentional act or a force set in motion by defendant. Act by defendant Intent Intrusion of chattel interest Plaintiff in possession or entitled to immediate possession Causation 1. there is no action unless there is actual damage to the chattel. 6. rental value) or for conversion of chattels. 3. 13 . e. 4.. 3. plaintiff can sue for loss of use (e. 4. 2. an invasion of such interest. Act by defendant Defendant’s act must be a volitional movement resulting in dispossession of or harm to plaintiff’s chattel.g. Invasion of Chattel Interest This can be by “dispossession” (assertion of proprietary interest in chattel. Plaintiff in Possession or Entitled to Immediate Possession This is the same as in a trespass to land. Defendant’s mistaken belief that he had a right to do so is no defense. e. Elements 1. theft) or “intermeddling” (a lesser interference. 2. 5. throwing a stone at plaintiff’s car). Damages For dispossession. 5.

or (vii) refusing to surrender chattel on demand (but carrier or bailee is privileged to make a qualified refusal to deliver of the purpose of investigating ownership). 2. an act by defendant with intent to substantially invade a chattel interest. or claim and delivery Plaintiff may obtain return of the chattel and collect damages sustained 14 . Elements 1. 6. 4. defendant takes chattel or bars possessor’s access without consent). (iv) buying or receiving stolen property where defendant intended to acquire ownership rights (good faith is irrelevant).. a substantial invasion of such interest. Act by defendant Defendant’s act must be a volitional movement that results in a substantial interference with another’s possession of her chattels. and causation. detinue. Remedies If dispossession. Substantial invasion of chattel interest This can be accomplished by any of the following: (i) substantial dispossession (e. Plaintiff in possession or entitled to immediate possession Same as in preceding sections. (vi) misdelivering a chattel.g. Act by defendant Intent Substantial invasion of chattel interest Plaintiff in possession or entitled to immediate possession Causation Remedies 1. Causation Same as in preceding sections 6. even by innocent mistake. (iii) unauthorized use by bailee (use must amount to material breach of authority). 3. 3. (v) selling or disposing of stolen property. 5. (ii) destruction or material alteration of chattel. Intent Defendant must have intended to deal with the chattel in the manner in which he actually did deal with it. 5.Conversion of Chattels A prima facie case involves plaintiff in possession or entitled thereto. 2. 4. plaintiff has a choice of actions: (1) Replevin.

(2) Forced sale damages Plaintiff may recover the value of the chattel plus damages for detention (i. i.during its detention. 15 . Effect of offer to return Defendant’s prompt offer to return mitigates damages if defendant acquired the chattel in good faith and did not affect its value or condition.e. If plaintiff accepts defendant’s offer. plaintiff no longer has an action for conversion but only for trespass to chattels. forced sale of chattel to defendant).

defendant cannot enter a building other than that in which his chattels are kept. defendant has no privilege. Instead. he must bring an action for replevin. defendant may use reasonable. non-deadly force subject to the same conditions attached to the recapture of chattels defense. However. defendant has a complete privilege to enter to retake his chattels after demand (unless demand would be futile or would subject the chattel to harm). is liable for damages causes in process of recapture but not for mere trespass).g. defendant has an incomplete privilege (i. etc.e. Limitation In all cases. If plaintiff persists. Third party at fault If chattels are on land because of a third party’s act.. defendant has an incomplete privilege where the landowner is unaware of the tortious dispossession. storm) causes chattels to be on another’s land. he has no privilege..g. detinue.. failure to secure chattels).     Privilege to Exclude or Evict Trespassing Chattels of Another Defendant is completely privileged to use reasonable force to exclude chattels of another 16 . Act of God If an act of God (e. Chattel owner at fault If the chattel owner is at fault. Defendant is not liable for damages to plaintiff’s land if defendant acted reasonably.  Landowner at fault If the landowner is at fault. Privileged Invasion of Another’s Land to Reclaim Chattels The scope of the privilege depends on where fault lies for the presence of defendant’s chattel on plaintiff’s land. if the underlying causal factor is defendant’s negligence (e.Defenses and Privileged Invasions of Land and Chattels Consent Plaintiff’s valid consent (expressly or by conduct) to the invasion is a defense. defendant has no privilege if defendant is not in fact entitled to possession of chattel. mistake is irrelevant. However.

non-deadly force. Privileged Invasion of Land or Chattels to Abate a Nuisance An owner or possessor of land may. 3. but D must enter at a reasonable time and use only reasonable force (force to person not allowed). defendant may shoot neighbor’s dog in defendant’s chicken coop). but is liable for resulting damages. Privileged Invasion of Another’s Land or Chattels as a Public Necessity 1. The privilege holder may break and enter dwellings and use reasonable. Note that if defendant’s entry is proper initially but he subsequently acts improperly.g.  Distinguishpublic nuisance There is no privilege for abatement of a public nuisance unless the injury is “peculiar in kind. Detouring around obstructed highway A traveler on a public road has an incomplete privilege to enter neighboring lands where the road reasonable appears impassableunless obstruction is the traveler’s fault. Reasonableness is tested by the need for immediate action. Media The First Amendment does not give the media a privilege to enter private land whenever they seek information even important information. Thus. The harm prevented must exceed the harm caused by the invasion. whether the force is excessive. The privilege is complete. and the comparative values of the property.. 17 . defendant can break and enter a dwelling and use whatever force on the property owner is reasonably necessary to affect the privilege. Averting public disaster There is a complete privilege to use reasonable force to enter land or interfere with a chattel if it reasonably appears necessary to avert a public disaster.” Effect of Defendant’s Misconduct There is no privilege of defendant did not act “reasonably while exercising the privilege.where reasonably believed to be necessary to protect defendant’s interests or chattels (e. Privileged Invasion of Another’s Land or Chattels as a Private Necessity There is a privilege to enter land or interfere with chattels where it appears reasonably necessary to protect any person from death or serious harm or to protect land or chattels from injury. invade property or chattels of another to abate a nuisance. The privilege supercedes the landowner’s privilege to exclude trespassers. 2. after demand to abate.

defendant is liable for the subsequent misconduct not for the initial intrusion. 18 .

Establishing the Tort Obligation: Duty Feasance and Foreseeability The Ordinary Duty Other Duty Factors Substantive Content of Duty: Fault or No-F Negligence v. Duty. Standards Rules of Reasonable Care Landowner Liability Causation Factual Causation Multiple Tortious Causes Tests of Proximate Case Proximate Cause. Strict Liability Battery Revisited Negligence Liability The Reasonable Person Reasonable Care Customary Safety Practices Statutes and Regulations The Untaken Precaution Circumstantial Evidence Rules v. and Damages 19 .

Multiple Tortfeasors Joint and Several Liability Vicarious Liability Grouping Liability Market-Share Liability Defenses Based on Plaintiff’s Conduct Contributory Negligence Last Clear Chance Assumption of Risk Relation to Objective Causation Comparative Responsibility The Decline of Objective Causation Plaintiffs and Defendants Among Defendants Apportionment Factors 20 .

that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion. snapping or baring teeth. Tame Animals Tame Animals: Owner only liable for negligence.Traditional Strict Liability Animals Wild Animals Wild Animals: Restatement Third: Subjects owner or possessor of wild animals to strict liability for physical harm. unless restrained. to cause personal injury” (Restatement Third). but a strict liability rule applies to domestic animals that.”  Owner and possessor jointly liable for any damages to plaintiff’s real property and animals.  Wild animal: Any animal “that belongs to a category of animals that have not been generally domesticated and that are likely.S.  21 . have shown dangerous propensities even if they have not bitten.. as individuals. unless owners had prior knowledge that animal had vicious propensities. owners have no duty to prevent animals from straying onto a public roadway.” Under the English common law inherited by U.  Abnormally dangerous animals: “An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency” (Restatement Third) o Knowledge is established either by reference to prior attack incident (one is enough) or other evidence: growling. Cattle Trespass “An owner or possessor of livestock or other animals. except for dogs and cats. but Restatement Second limits recover to harms “not reasonably to be expected from the intrusion.

2001 Owner strictly liable for injuries caused.D.S. 22 .  Comment on Subsection (2): One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on. the possibility of which makes the activity abnormally dangerous. (2) This strict liability is limited to the kind of harm. only for harm that is within the scope of the abnormal risk that is the basis of the liability.  Strict liability if owner knows or has reason to know that the animal has abnormally dangerous propensities.  Ultrahazardous or Abnormally Dangerous Activities General Principle Restatement Second. § 519: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person.Affirmative Defenses for Wild Animals Animals in the zoo governed by negligence principles Animals in national parks governed by negligence principles Public Policy “Fencing in” or “fencing out”? Western U. or Negligence liability if an ordinary. land or chattels of another resulting from the activity. states had “fencing out” statutes to allow animals to graze on federal land without trespassing on adjacent private properties. prudent person should have foreseen the event that caused the injury and taken steps to prevent the injury (ordinary negligence standard of foreseeability). Batteen Wild Animals Domesticated Animals S. although he has exercised the utmost care to prevent the harm. Cases Gehrts v.

(b) An activity is abnormally dangerous if: (1) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors. Affirmative Defenses Restatement Second Defenses § 522. the following factors are to be considered: (a) Existence of a high degree of risk of some harm to the person. (c) Inability to eliminate the risk by the exercise of reasonable care.  Comment on clause (d): An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. Animals and Forces of Nature One carrying on an ultrahazardous activity is liable for harm under the rule stated in § 519. (d) Extent to which the activity is not a matter of common usage.Abnormally Dangerous Activities Restatement Second. although the harm is caused by the unexpectable 23 . and (2) The activity is not one of common usage. (e) Inappropriateness of the activity to the place where it is carried on and. land or chattels of others. (f) The extent to which its value to the community is outweighed by its dangerous attributes. § 20 (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. (b) Likelihood that the harm that results from it will be great. § 520 In determining whether an activity is abnormally dangerous. Restatement Third. Contributing Actions of Third Persons.

the more we want actor to consider the possibility of making accident-reducing activity changes = the stronger case for 24 . assumed to be futile. Contributory Negligence (1)Except as stated in Subsection (2). § 523. 1969 One who engages in blasting must assume responsibility. to experiment with methods of preventing accidents that involve not greater exertions of care. Perini Corp. and be liable without fault. Plaintiff’s Abnormally Sensitive Activity There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the plaintiff’s activity. changing. the contributory negligence of the plaintiff is not a defense to the strict liability of one who carries on an abnormally dangerous activity. When activity involves substantial risk of harm. or (b) Action of an animal. v.(a) Innocent. missing in a negligence regime. § 524A. § 524. or (c) Operation of a force of nature. Strict Liability “Substantial risk of harm” N. Cases Spano v. degree of care exercised not relevant. Assumption of Risk The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.Y. 7th Cir. negligent or reckless conduct of a third person. or reducing the activity giving rise to the accident. for any injury he causes to neighboring property. but instead relocating. American Cyanamid Co.R. (2)The plaintiff’s contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to strict liability. 1990 Indiana Harbor Belt R. The greater the risk of accident and the greater the cost of accident if one occurs. Strict Liability Incentive Cauclultion By making the actor strictly liable we give him an incentive.

evidence not destroyed by accident). 25 .e.strict liability. Policy Non-reciprocal risks subject to liability. Rule Accidents that are due to lack of care can be prevented by taking care.. such accidents are adequately deterred by the threat of liability for negligence. and when a lack of care can be shown in court (i.

Strict Products Liability Evolutions of the Common Law The Restatements Boundary Problems Manufacturing Defects Design Defects Warning Defects Plaintiff’s Conduct Damages 26 .

Duty of Due Care Duty is determined by the court and requires a two-step inquiry: (i) whether defendant owed a duty of care. defendant’s subjective good faith belief is immaterial. Negligence (Based on the “Duty of Due Care”) A prima facie case involves an act or omission to act that breaches a duty of care and is the actual and proximate cause of plaintiff’s injuries. a. i. the second broad category of tort liability. 2. (ii) what the scope of that duty is. Objective test The test is objective. she owes a duty to act as a reasonable person ought to under the same or similar circumstances. “reasonable person” would act differently in emergency). Act or Actionable Omission by Defendant Duty of Due Care Breach of Duty Actual Cause (“Cause in Fact”) Proximate Cause (“Scope of Liability”) Damages 1. Default duty to act as a “reasonable person” would Where defendant’s conduct creates a risk of physical harm. 6. Defendant is at fault for failing to perform some legal duty. 4.Negligence In General Negligence. 3. Elements 1. 2. However. ii. 5. Act by Defendant This refers to a volitional act or an omission when under and affirmative duty to act.. and if so. imposes liability for results that were not intended by defendant. the 27 . Standard remains same under all circumstances The circumstances dictate the care required (e.g.

v.. ii. limitations in ability may require exercise of greater care. Medical Profession Some courts held doctors to the standard of doctors in the “same” community. Special knowledge and skills Those engaged in a profession or trade are held to the standard of care exercised by similar professionals in the same or similar communities. Adults with mental deficiency There is no allowance for mental disability in part because of the fear of fraud and in part because of the difficulty in applying a reduced standard. Persons with physical disability Such persons are held to the standard of the reasonable person with that disability. Common carriers Historically. They may be held to an adult standard when they engage in dangerous adult activity (i. National standards may be imposed for nationally certified medical specialists. Plaintiff must establish the particular standard for medical care. but modern courts are moving toward the reasonable person standard. courts held common carriers to a higher standard. Children Minors are held to the standard of care that would be expected from a child of like age. intelligence and experience. The courts are split on whether the standard is the level of disclosure customary 28 . to a patient. 1. i. The modern trend expands the standard to “similar” communities.e. b. iii. iv. etc. driving a car).. Variances in the generalized standard of due care The reasonable person standard applies to all persons. a. alternatives. Informed consent Doctors have a duty to disclose relevant information about benefits and risks. Compare: Those voluntarily intoxicated are held to the standard of a sober person. Thus. and generally presents it by expert testimony.standard never varies.

However. The same result applies where the rescuer injures a third person. Broad (Andrews) view The broad view is that defendant’s duty of due care is owed to anyone in the world injured as a result of defendant’s breach of duty. Applicationduty to rescuers The duty of due care extends to persons injured while making an attempt to rescue the imperiled person. d. Narrow (Cardozo) view Under the narrow view. iii. the original defendant will not be liable if the rescue attempt was foolhardy under the circumstances. ii. defendant is liable. Judge v. i. defendant’s moral blameworthiness for her conduct. whether imposing 29 .. most courts hold that no duty is owed to unexpectedly injured persons.e. However. Limitations on duty Even if defendant’s actions created a risk of harm. there is a duty of due care owed only to a “foreseeable plaintiff” or class of persons in the “zone of danger” (Palsgraf majority). There are exceptions where there is an emergency or where disclosure would be detrimental to the patient’s health. leaving the foreseeability of a particular plaintiff a matter to be determined in the context of proximate cause (Palsgraf dissent). courts sometimes analyze the facts of a case and its policy implications to determine whether and to what extent to impose a duty. i. The unforeseeable plaintiffto whom is the duty of care owed? If a reasonable person would not have foreseen the injury to anyone from defendant’s the medical profession or that required based on what a reasonable doctor would recognize as material to the patient’s decision. c. but whether injury to that particular plaintiff was foreseeable is questionable. and a doctor does not need to disclose his inexperience. jury Justice Cardozo felt that judges ought to determine plaintiff’s foreseeability. Some courts limit a defendant’s duty due to a consideration of the closeness of the connection between defendant’s conduct and plaintiff’s injury. iv. views differ when defendant could have reasonably foreseen danger to someone. whereas Justice Andrews wanted to leave such questions to the jury as a matter of proximate cause.

Judge Learned Hand’s formula for this analysis is: Breach = P x L > Burden on defendant of taking the risk. 3. Some courts indicate that this analysis requires a balancing of the foreseeable severity of harm to plaintiff against the foreseeable social value of defendant’s conduct. Accident must be of a type that normally does no occur absent someone’s negligence This is most often applied to commonplace and 30 . a. i. Defendant’s conduct is unreasonable if the magnitude of risk outweighs the benefit. i. e. no duty exists absent a special affirmative duty. (iii) voluntary undertaking. Proving what actually happened This may be shown by direct evidence or circumstantial evidence. b. the extend of the burden imposed and its consequences on the community. Determining whether conduct proved is unreasonable Whether defendant acted reasonably under the circumstances is generally a question for the jury. But where plaintiff’s injury results from defendant’s negligent failure to act (nonfeasance). in the face of special problems of principle or policy.liability will further the policy of preventing future harm. etc. The line between act and omission Where plaintiff is injured as a result of defendant’s negligent action (misfeasance). Courts also refuse to impose a duty. A finding of breach includes determination of (i) what in fact happened. Res Ipsa Loquitur (“the thing speaks for itself”) Occurrence of a particular harm may tend to establish what happened and that it was through defendant’s fault. Essential Elements Three elements must be established: 1. a duty of reasonable care exists. and (v) encouraging dangerous acts. (ii) negligent/nonnegligent creation of risk. Misfeasance or nonfeasance? Courts sometimes find the following situations difficult to characterize: (i) negligent entrustment. Breach of Duty Conduct that exposes others to an unreasonable risk of harm (i. and (ii) whether those facts show defendant acted unreasonably.e. c. despite the clear creation of a risk. conduct falling short of the duty owed) is a breach of duty. (iv) negligent misrepresentation.

Effect of establishing res ipsa loquitur Most courts treat res ipsa loquitur as giving rise to a permissible inference of negligence. evidence of defendant’s adherence to or departure from the reasonable person standard. the ultimate issue is one of probabilities. 3. the doctrine applies even if defendant cannot add any evidence on the issue of what happened. bleachers at a ball field do not ordinarily collapse absent negligence). Other courts give it the status of a rebuttable presumption. Other factors affecting use of res ipsa loquitur Most courts hold that if the above three elements are met. “Joint control” or “concerted action” theories of control Some courts find “exclusive control” in a group of physicians and nurses where each had contact with an unconscious patient who is injured (Ybarra case).. 4. still others classify it as a presumption that can be dispelled by any counterevidence. but not conclusive. How custom established 31 . Third Restatement’s single-element approach The Third Restatement adopts only the first element above because “exclusive control” and “no plaintiff contribution” are merely used to determine that defendant’s negligence likely caused plaintiff’s injury. 2. d. Negligence attributable to defendant Some courts require a showing that the instrumentality causing injury was under defendant’s exclusive control.ordinarily safe activities (e. The better view questions whether the injury was one that defendant owed a duty to guard against. a. Effect of custom and statutes Safety-related statutes and customs may be offered as some. Neither plaintiff nor a third party contribute to or caused plaintiff’s injuries No inference arises if it appears that plaintiff’s own conduct (or acts of a third person) was the likeliest cause of the accident. i. ii. iii.g.

The minority views treat a violation as a rebuttable presumption of evidence only.). and 3. it was safer under the circumstances not to comply. Unexcused violations If there is no excuse. i. The minority views treat a violation as a rebuttable presumption of evidence only. i. 2. In such situations. Actual Cause (“Cause in Fact”) Defendant’s negligence conduct must be the cause in fact of plaintiff’s injuries. Statutory duty is clear. If crucial facts are disputed. the majority defers to the judge’s decision in the validity of the excuse.. Statute cannot be used to establish negligence per se if defendant had a legally acceptable excuse for its violation (e. there is negligence per se if the excuse is invalid. the jury will determine these. 2. defendant is physically disabled or incapacitated. Excuse offered If an excuse is offered. courts may use the criminal statute to establish breach. Requirements for negligence per se For a criminal statute to constitute breach for purposes of a civil suit.g. e.e. ii. Effect of violation of statute 1. defendant will be charged with knowledge of it. 32 . its purpose must be to avoid the type of harm plaintiff suffered. If defendant is a member of the community in which the relevant custom is practiced. plaintiff would not have been injured but for defendant’s negligent conduct. Statutory purpose was to protect a class of persons of which plaintiff is a member from the type of injury suffered. etc.. the following requirements must be met: 1. Violation was unexcused. breach of the statute constitutes negligence per se. 4. the majority treats the violation as negligence per se.For a custom to be relevant. Criminal statute and breach”negligence per se” If a common law duty is already owed and a criminal statute provides that specific conduct breaches the duty.

or how. some courts allow plaintiff to recover from all manufacturers (but courts vary as to whether. Risk of future harm If plaintiff is more likely to suffer a future harm as the result of the present injury caused by defendant’s negligence. both actors are liable if each person’s conduct was a substantial factor (e. Note that courts have been reluctant to use market share liability in cases not involving DES. each is liable even though only one of them actually inflicted the injury. plaintiff could not recover for such loss unless she could prove she was more likely than not to have received something. Multiple sufficient causes“substantial factor” rule If either one of two acts was sufficient to cause the injury. both defendant and X are actual causes. Problem of alternative liability Where it is not clear which of several negligent defendants caused plaintiff’s injury. causing it to run away). the tortfeasors must try to disprove their responsibility for the injury. d. The minority views permit delayed or partial recovery. the majority allows recovery. two negligent motorcyclists simultaneously pass plaintiff’s horse. and damages for emotional distress can be awarded if physical injury is present. But note that many courts have limited or abolished this rule. a particular defendant can be relieved from a share of liability). in medical cases some courts allow suits for loss of recovery chances that are less than 50%. b.g. 33 . Distinguishjointly engaged tortfeasors If several defendants jointly engage in a course of negligent conduct (e. Tice). ii. Concurrent liability rule Where separate negligent acts of defendant and X concur and plaintiff would not have been injured but for the concurrence. i. Successive tortfeasors When successive acts of independent tortfeasors produce harm that is difficult to apportion. c.. Market share liability Where a specific manufacturer of the DES drug cannot be identified. However. some courts shift the burden to each defendant to prove he was not the cause (Summers v.. Loss of chance Traditionally.g.a. participants in a drag race). e. i.

5. Where defendant’s negligence has deprived plaintiff of proof In such a case. This approach is gaining ground. Intervening act This can be an “act of God. or act of an animal (if plaintiff’s own conduct contributed to her injury. Indirect causation means that an intervening force extended the result of defendant’s negligence or combined with defendant’s act to produce plaintiff’s injury. indirect causation Direct causation means that there were no intervening forces operating between defendant’s conduct and plaintiff’s injury. ii. v. This is the most commonly used approach. Directness/remoteness test Proximate cause exists for all harm (regardless of how unforeseeable) that is a direct result of defendant’s negligent conduct as long as it is not too remote.f. “Intervening act” does not 34 . a. Foreseeability test Proximate cause exists if the type. the burden may shift to defendant to show that he was not the cause. Risk rule Proximate cause exists if plaintiff’s harm is within the scope of risks that made defendant’s conduct negligent. extent and manner of injury to particular plaintiff were the foreseeable result of defendant’s negligent conduct. Direct v. or assumption of risk). i. Andrews factors Establishing proximate cause requires a consideration of all of the above factors. it will be analyzed under a different doctrinecontributory negligence. Basic tests i.” act of a third person. b. iii. iv. Substantial factor test Proximate cause exists if defendant’s conduct was a more (or the most) substantial factor in causing plaintiff’s harm than other factors. Proximate Cause (“Scope of Liability”) Proximate cause is actually a policy decision as to who should bear the loss for unexpected injuries or for expected injuries caused in unexpected ways.

c. Indirect Causation i. Example: where defendant fails to control flame in a populated area. The response arises because of defendant’s act and is held to be foreseeable. Checking forces Negligent treatment in response to defendant’s injury to plaintiff is deemed foreseeable. (But reckless or intentional medical misconduct is not. Also. Unforeseeable results (“set stage”) Courts are split where direct causation yields and unforeseeable type of injury (Polemis viewdefendant liable for all direct consequences v. ii. or a third person’s omission to act. c. the case is one of direct causation and defendant will be deemed the proximate cause of most foreseeable results. Other courts following the risk rule impose liability as long as the result is foreseeable. Defendant is liable if the result is foreseeable. Dependent intervening force This is a normal response to a situation created by defendant’s negligent act.include a force set in motion by defendant. a. New York courts hold that expansion of fire beyond the first building is not foreseeable. Escape forces 35 . a preexisting condition. Wagon Mound majority view unfair to hold defendant liable for unforeseeable results). Rules focusing on nature of intervening act 1. Exceptions Public policy may limit liability. d. All courts hold defendants liable where unforeseeably goes only to the extent of injury (“egg-shell skull rule”). some courts hold that a highly extraordinary chain of events excuses defendant from liability. Rescue forces Infliction or aggravation of an injury by a rescuer is deemed foreseeable. i. Direct causation If there are no intervening acts.) b.

2. Intervening tortious or criminal acts These terminate liability if the intervening acts are unforeseeable.g. Independent intervening forces This is an agency that operates upon the situation created by defendant’s act but is not a response or reaction thereto (e. d. Distinguishunforeseeable criminal or tortious acts Generally. landlord’s failure to install locks on common areas of apartment building in high-crime area). if defendant’s negligent conduct has increased the risk that another’s negligent. a. 1. Acts of God These will not prevent liability where they lead to the result threatened by defendant’s original negligence. However. b. but some courts relieve defendant of liability if the intervening act is the international or reckless conduct of a third person. the act of a third person.. unforeseeable intentional or criminal acts are 36 . Rules focusing on results of defendant’s negligence. Defendant remains liable for the foreseeable results of his act unless the force is an unforeseeable internationally tortious or criminal act. Foreseeable results produced by unforeseeable intervening forces Liability is generally imposed here. an animal. Caution The crucial element in the above cases is that response be normal (not highly unusual).g. Thus. or nature). ii. the apparent guideline is moral responsibility. the intervening force will be found to be foreseeable (e.Infliction or aggravation of injuries through escape efforts is deemed foreseeable. intentional. a court will hold that the moral culpability of one who internationally or recklessly commits a harm overwhelms the moral responsibility of a negligent defendant. or criminal act will occur.. a.

present and future economic losses (e. loss of wages or profits. Types of damages recoverable i. Future economic loss must be discounted to present value.). however. Unforeseeable results produced by unforeseeable intervening forces Ordinarily there is no liability except common carriers may be held liable for any loss due to delay in transit.” i. but negligent conduct will not prevent liability unless “highly extraordinary.. 2. at the causation stage. Unforeseeable results produced by foreseeable intervening forces There is a split of authority. Unforeseeable plaintiff The Cardozo approach rejects an unforeseeable plaintiff at the duty stage. The Andrews view considers several factors. Special damages These include past. Damages Actual damages are required. while other courts impose liability on the basis that the intervening force was foreseeable. c. 3. e. including plaintiff’s foreseeability. Abnormal rescue attempts Foolhardy rescues are deemed unforeseeable an thus cut off liability even if they lead to foreseeable results. medical bills.g. some courts holding defendant not liable for an unforeseeable result. Ultimate result depends on degree of foreseeability Keep in mind that the ultimate decision on proximate cause depends on the degree of emphasis a court places on foreseeability. 6. Recently. 4. a few courts permit plaintiff 37 . a. unlike awards for pain and suffering.held by some courts to relieve defendant from liability. etc. Third person’s failure to prevent harm This will not relieve defendant from liability unless so extraordinary as to “neutralize” the original risk.

an insurance company usually has subrogation rights (automatic assignment of plaintiff’s claim against defendant). ii. disability. but some states permit them for “reckless” conduct (e..g.g. 38 .. General damages These are deemed inherent in the injury itself e. with no discount. Anticipatory avoidable consequences This means unreasonable behavior prior to an accident (e. victim’s insurance benefits. i. “Avoidable consequences” rule Any additional damages caused by plaintiff’s failure to act reasonably in minimizing loss are not recoverable (e. c.g. b. iii. “Collateral sources” rule There is no deduction against plaintiff’s recovery for benefits received from sources collateral to the tortfeasor (e. a few courts hold that the failure to wear safety belts may reduce damages). etc.g. unreasonable refusal to submit to medical care).to recover the full award. past.. Punitive damages These are not recoverable for negligence. present and future pain and suffering.g.. disfigurement. drunk driving). Social Security disability compensation).. However.

Special Duty Questions Duty to Aid Others in Emergency  Duty owed where special factors present o Duty to aid one with whom defendant is in a special relationship o Duty to aid if plaintiff’s injury is caused by defendant o Statutes may impose a duty o Duty where defendant has a special relationship to the harmer  Duty owed where defendant undertakes to aid plaintiff (“good Samaritan obligation”) Affirmative Duty to Prevent Harm Duty to Control Third Persons  Bailment cases o Vicarious Liability o Products liability  Master-servant cases o Doctrine of respondent superiorvicarious liability  Independent contractor cases o Vicarious liability o Contractor’s assumption of liability o Limitationcollateral negligence  Partners and joint ventures o Automobile trips  Liability of parent for torts of child  Liability of tavernkeeer    Intentional Torts Torts to the Person 39 .