Tort: Civil wrong committed by one person against
another; and torts can and usually do arise outside of
any agreement between the parties
I. Development of Liability Based Upon Fault.
A. Development of Liability. An actor is liable for injury directly caused by his act
unless he can prove himself utterly without fault. (Weaver v. Ward)
B. Development of Liability. If in the prosecution of a lawful act, a casualty purely
accidental arises, i.e., the injury was unavoidable, and the conduct of the defendant was
free from blame, no action can be supported for an injury arising therefrom.
C. Development of Liability. When injury results from an unforeseeable event there
is no liability.
D. Development of Liability. One who sets off explosives is absolutely liable for
damage caused without regard to trespass or fault.
II. Intentional torts: first intentional torts are ones where the defendant desires
to bring about a particular result.
C. False imprisonment
D. Infliction of Mental Distress
A. No intent to harm: intentional torts generally are not defined in such a way as to require
defendant to have intended to harm the plaintiff.
B. Substantial certainty: if defendant knows with substantial certainty that a
particular effect will occur as a result of her action, she is deemed to have intended
C. Act distinguished from consequences: distinguish defendants act from the
consequences of that act. The act must be intentional or substantially certain, but
consequences need not be.
D. Transferred intent: Under the doctrine of “transferred intent,” if defendant held
the necessary intent with respect to person A, he will be held to have committed an
intentional tort against any other person who happens to be injured.
E. Garratt v. Daily: Knowledge of what would happen, knowledge with
F. Spivey v. Battaglia: an assault and battery is not negligence, for such action is
intentional, while negligence connotes an unintentional act.
G. Ranson v. Kitner: Mistake does not absolve an actor from liability for the harm
caused by his intentional act.
H. McGuire v. Almy: An insane person may be capable of entertaining the intent to
commit a battery.
I. Talmage v. Smith: When one intends to harm another, it is no defense that an
unintended person was instead harmed.
2. Battery: Battery is the intentional infliction of a harmful or offensive bodily contact.
A. Cole v. Turner: The least touching of another in anger is a battery. An unintentional
touching without violence is not a battery. The use of violence in a rude manner is a
battery. An attempt to pass through a narrow way resulting in a struggle sufficient to do
injury is a battery.
B. Fisher v. Carrousel Motor Hotel, Inc.: A battery may be committed even though
there is no physical contact with the person’s body, so long as there is contact with
something that is attached to, or closely identified with, the body.
C. Intent: It is not necessary that defendant desires to physically harm plaintiff.
Defendant has the necessary intent for battery if it is the case either that: (1)
Defendant intended to cause a harmful or offensive bodily contact; or (2)
Defendant intended to cause an imminent apprehension on plaintiff’s part of a
harmful or offensive bodily contact.
1a. Defendant shoots at plaintiff, intending to hit him with bullet. Defendant
has the necessary intent for battery.
2a. Defendant shoots at plaintiff, intending to miss plaintiff, but also intending
plaintiff to think that plaintiff would be hit.
D. Plaintiff need not be aware: It is not necessary that plaintiff have actual awareness of
the contact at the time it occurs.
3. Assault: Assault is the intentional causing of an imminent apprehension of harmful
or offensive contact.
1a. Intent to create apprehension: First, defendant intends to put plaintiff in
imminent apprehension of the harmful or offensive contact, even if defendant
does not intend to follow through.
2a. Intent to make contact: Alternatively, defendant intends to in fact cause a
harmful or offensive contact. (E.g. Defendant shoots a gun at plaintiff, trying to
hit him. Defendant hopes plaintiff won’t see him, but plaintiff does. Plaintiff is
frightened, but the shot misses. This is assault.)
B. No hostility: It is not necessary that defendant bear malice towards plaintiff, or
intend to harm her.
C. I de S et ux. V. W. de S: An act which causes another to be fearful of a harmful or
offensive contact is known as an assault, and the plaintiff may recover damages, even
though there is no actual physical contact or physical harm.
D. Western Union Telegraph Co. v. Hill: to constitute an actionable assault there
must be an intentional, unlawful, offer to touch the person of another in a rude or angry
manner under such circumstances as to create in the mind of the party alleging the assault
a well-founded fear of an imminent battery, coupled with the apparent present ability
to effectuate the attempt if not prevented.
E. “Words alone” rule: Ordinarily, words alone are not sufficient, by themselves to
give rise to an assault. Normally there must be some overt act - a physical act or gesture
by defendant - before plaintiff can claim to have been assaulted.
1a. Special circumstances: However, the surrounding circumstances, or
defendant’s past acts, may occasionally make it reasonable for plaintiff to interpret
defendant’s words alone as creating the required apprehension of imminent contact.
F. Imminence: It must appear to plaintiff that the harm being threatened is imminent,
and that defendant has the present ability to carry out the threat.
G. Plaintiff unaware of danger: Plaintiff must have an apprehension that she herself
will be subjected to a bodily contact. She may not recover for her apprehension that
someone else will be so touched.
H. Has to be imminent: if Defendant threatens future action it is not imminent. If
defendant says if it wasn’t for plaintiff’s old age he would kill him it is not imminent.
4. False Imprisonment: False imprisonment is defined as the unlawful intentional
infliction of a confinement.
A. There must be some act by the defendant that causes the confinement of the plaintiff.
As in battery or assault, the act required is usually a volitional movement by the
defendant of some part of his body.
a. Words alone sufficient: In false imprisonment, words alone may be a sufficient
act. Thus, threats of physical force or words asserting legal authority may result in false
imprisonment without any accompanying physical movement.
b. Intent: the act must have been done by the defendant with the intent to confine
the plaintiff or some third person.
(i). Test: Again, intent is measured by the “desire or belief in substantial
(ii). Transferred intent: The transferred intent doctrine applies.
B. Confinement: The defendant’s intentional act must result in the confinement of the
plaintiff within boundaries fixed by the defendant for some period of time, however
short. “Confinement” requires that the plaintiff be restricted to a limited area
without knowledge of a reasonable means of escape.
a. What constitutes “confinement”
(i). Area of confinement: Normally, there must be some specific area in
which the plaintiff is completely confined by the defendant’s acts.
(ii). Where plaintiff is prevented from going in a certain direction (e.g. by
defendant’s blocking a highway), there is not a sufficient confinement to constitute false
b. No means of escape available: There is no confinement if reasonable means of
escape are available and known to plaintiff.
(i). Plaintiff is under no duty to search for a means of escape or to run any
risk of harm to her person or property (e.g. clothing) by attempting to escape.
(ii). If the defendant asserts that he will free the plaintiff if the plaintiff
complies with some unlawful condition (e.g. payment of cash which plaintiff is under no
obligation to pay), compliance is not deemed a “reasonable” means of escape.
c. Plaintiff’s awareness: There can be no confinement unless the plaintiff knows
that she is confined at the time of the confinement or is harmed by the confinement.
d. How confinement is caused: Plaintiff’s confinement may be effected by any of
(i). Physical force: The defendant’s use of physical force against either the
plaintiff or a member of the plaintiff’s immediate family constitutes confinement.
(ii). Threats of duress:
a) Threats to plaintiff or plaintiff’s family: Confinement may be effected
by submission to threats of immediate physical harm to the plaintiff or a member of her
immediate family. E.g. defendant may confine plaintiff by threatening to shoot plaintiff’s
child standing beside her if plaintiff tries to leave the room.
b) Compare -future harm: There is no actionable confinement where the
plaintiff submits to threats of future harm (e.g., “Unless you stay with me, I’ll kill your
husband when he gets off work.”)
c) Threats to plaintiff’s property: Threats to inflict immediate harm upon
the plaintiff’s property may also be sufficient. E.g. without privilege to do so, defendant
removes a valuable stamp from plaintiff’s stamp collection, and threatens to tear it in half
unless plaintiff stays in the room.
d) Threats to plaintiff’s economic well-being: Submission to words of
another usually does not constitute false imprisonment where the plaintiff stays to avoid
losing her job.
e. Actual or apparent physical barriers to form of an enclosure, fence, walls, etc.
Similarly, acts that deprive the plaintiff of the ability to escape may cause confinement by
physical barrier (e.g., taking away the crutches or wheelchair from a crippled person; or
where plaintiff is down a well, taking away the ladder that is the only way up)
f. Refusing to release: In addition, the barriers may consist of refusing to release
the plaintiff or to assist her in leaving when under a duty to do so.
(i). Limitation: Absolute freedom of movement at all times cannot be
expected. For example, when a passenger boards a commercial airliner or bus, she
impliedly agrees to abide by the rules of entrance and exit at scheduled stops only. It
follows that there is no actionable confinement if the passenger is denied permission to
depart at a nonscheduled stop.
(ii). Plaintiff in defendant custody: e.g.. Whittakar v. Sanford
g. Arrest: A confinement may also be effected by the defendant’s assertion of
legal authority and submission there to by the plaintiff.
h. Causation: The confinement must have been legally caused by the defendant’s
intentional act or some force set in motion there by.
(ii). The tort is complete upon the confinement, and recovery may be had even
though the plaintiff suffers no special damages-e.g., injuries, loss of earnings, etc.
a) Plaintiff can recover for any injuries sustained in a reasonable attempt to
i. Big Town Nursing Home, Inc. v. Newman: One can be held liable for
exemplary damages in a false imprisonment action if the false imprisonment is done
intentionally in violation of the rights of the plaintiff.
j. Parvi v. City of Kingston: A plaintiff’s present recollection of a previous
consciousness of confinement is not required to make out a prima facie case for false
k. Enright v. Groves: A claim for false arrest will not lie if an officer has a valid
warrant or probable cause to believe that an offense has been committed and that the
person who was arrested committed it.
l. Whittaker v. Sandford: To commit a false imprisonment it is not necessary that
the tortfeasor actually apply physical force to the person of the plaintiff, but that
plaintiff be physically constrained. 2) A false imprisonment occurs when there is an
intentional breach of an obligation to take active steps to release plaintiff.
5. Intentional Infliction of Emotional Distress: One who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress and if bodily harm to the other results from
it, for such bodily harm. The rule emerged from conduct exceeding bounds usually
tolerated in decent society.
a. Act by defendant extreme and outrageous conduct: Unlike the intentional
tort of assault, words alone may be a sufficient “act”. Liability may be predicated on any
other gesture, conduct, or action by defendant. However, courts generally require that
the conduct be “extreme” and “outrageous.” I.e., exceeding “all bounds of decent
(i). Modern intentional tort, no transfer of intent.
b. Harris v. Jones: Rules
a) Conduct must be intentional or reckless
b) Conduct must be extreme and outrageous.
c) Must be a causal connection between wrongful conduct and emotional
d) The emotional distress must be severe.
c. Intent: The defendant must have intended to cause severe emotional distress or
mental anguish to the plaintiff. Reckless conduct will also suffice (i.e., where the
defendant acts in deliberate disregard of a high probability that his actions will cause
d. Special Knowledge: Inference of intent: such intent or recklessness may be
inferred where the defendant know that the plaintiff is particularly sensitive or
susceptible to emotional distress, but acts in disregard of the probability that such harm is
likely to occur.
e. Causation: (1) Early view- Physical injuries required (2) Modern approach -
distress alone suffices. (3) Liability to third persons: When the defendant’s conduct was
aimed only at a particular person, the defendant is also liable for infliction of emotional
distress to members of that person’s family present at the time of the conduct - if the
defendant knew of their presence. Rationale: Under the circumstances, the defendant
must have known that his conduct toward the person was substantially certain to hurt the
plaintiff (family member), or the conduct was at least reckless toward the plaintiff. - Has
to be related
f. State Rubbish Collectors Ass’n v. Siliznoff: A complaint based on mental
suffering caused by the outrageous conduct of defendant will be sustained if there was no
privilege to act in such a manner.
g. Slocum v. Food Fair Stores of Florida: No recovery is allowed for mental
suffering when the abuse, insult, or profanity is not accompanied with serious threats to
life or other affronts which amount to more than mere annoyances.
h. Taylor v. Vallelunga: In order to recover damages for mental suffering which
is the result of defendant’s injury of a third person, the plaintiff must show that defendant
reasonably anticipated mental stress would be inflicted on the plaintiff.
6. Torts to Property: Trespass to Land
A. Trespass to Land: Act by defendant: There must be a volitional movement by
defendant of some part of his body that results in an intrusion onto another’s land
or that sets in motion a force resulting in such intrusion.
a. Breaking the close: the perimeter -plane drawn all away around territory =>all
the way up in the sky and down in the ground.
b. Intent: The defendant must have intended to do the act that causes the intrusion
onto the land. However, he need not realize that the land belongs to another; he is liable
for an intentional entry even though he acts in good faith, believing himself to be the
c. transferred intent applies.
d. How high: Policy privilege for airplanes: Modern view - “immediate reaches”
standard: Modern authority holds that a landowner’s right to possession extends to the
airspace within the “immediate reaches” of the land, but at the same time, invasions of
such lower airspace are deemed privileged as long as they do not “interfere
substantially with the landowner’s use and enjoyment of land.”
(i). Note: the term “immediate reaches” of the land has yet to be defined, but
the Restatement suggests that any flight under 50 feet is clearly within the “immediate
reaches,” while any flight over 500 feet is clearly is not.
e. Consent: When permission is given for only certain kinds of uses and use goes
beyond it is trespass. Defendant is responsible for any injuries that flow from trespass.
I.e. Rogers V. Board of Road Com’rs for Kent County.
f. Dougherty v. Stepp: Every unprivileged entry onto the land of another is a
trespass regardless of the amount of damages.
g. Bradley v. American Smelting and Refining Co.: In order to sustain a cause
of action for trespass to land, one must establish that he has suffered actual and
h. Herrin v. Sutherland: A trespass to the land occurs when bullets or other
foreign particles violate the airspace above the land.
7. Trespass to Chattels: There must be a volitional movement by the defendant of
some part of his body that results in dispossession of or damage to the chattels of
another. (Note that “Chattel,” as used herein, includes any tangible identifiable object,
but does not include a purely monetary debt.)
A. Intent: It is necessary only that the defendant intended to deal with the chattel in the
manner in which he did deal; the fact that he may have been acting under a mistaken
claim of right, thinking the chattel belonged to him all the time, is immaterial.
B. Invasion of chattel interest: the defendant’s volitional act (or some force set in
motion thereby) must have resulted in either a “dispossession” or an “intermeddling”
with the chattel of another.
1a. “Dispossession”: Dispossession refers to conduct amounting to the defendant’s
assertion of a proprietary interest in the chattel over the interests of the rightful owner. ex.
theft or destruction of the chattel, or even a barring of the rightful owner’s access to it.
1b. “Intermeddling”: Intermeddling embraces conduct by the defendant that does
not challenge the rightful owner’s interest in the chattel, although the defendant may
have gone so far as to carry the chattel away. “Intermeddling” includes throwing a stone
at another’s automobile, beating another’s animals, or stampeding another’s herd of
C. Damages: When the defendant’s conduct amounts to a “dispossesion,” or the
defendant otherwise deprives the plaintiff of the chattel’s use, the plaintiff can recover
for loss of possession (e.g., rental value) even if the chattel itself has not been damaged.
In cases of dispossession, the plaintiff may choose to sue for conversion of chattels. But
if the defendant’s act accomplishes only an “intermeddling” short of interfering with
plaintiff’s possession, a trespass action will not lie absent a showing of actual damage to
D. Glidden v. Szybiak: In order for a cause of action based upon trespass to chattels to
be sustained, chattel owner must prove more than nominal damages to and intentional
interference with the chattel.
E. CompuServe Inc. v. Cyber Promotions, Inc.: Action claiming trespass to chattels
allows recovery for interference with the possession of chattels, not sufficient to rise to
the level of conversion, and requires the defendant to pay the full value of the thing with
which he has interfered.
8. Conversion of Chattels
A. Act by Defendant: There must be a volitional movement by the defendant of
some part of his body that results in an interference with another’s possession of
B. Intent: The defendant need only have intended to deal with the chattel in the manner
in which he actually did deal with it. Thus, if the defendant did to the chattel what he
intended to do, it is no defense that he was not a conscious wrongdoer (as where he
mistakenly thought he was the owner).
C. Invasion of chattel interest of another
1a. Serious dispossession: Where the defendant takes a chattel from another
without the other’s consent, bars the possessor’s access to her chattel, or obtains
possession of a chattel by fraud, there is a conversion.
1b. Compare - Trespass to chattels: However, where the defendant merely
intermeddles with the owner’s rights in the chattel rather than disposes the owner of a
substantial number of these rights, the owner has at most a trespass claim against the
2. Destroying or altering: where the defendant destroys or materially alters a
chattel there is conversion.
3. Unauthorized use by bailee: where the defendant receives possession of the
chattel as bailee and uses it in such a manner as to constitute a material breach of his
authority there is a conversion.
D. Pearson v. Dodd: The publication of information which does not amount to literary
property, scientific invention, or secret plans formulated for the conduct of commerce,
without an actual physical conversion of documents containing the information, does not
amount to conversion.
E. Remedies: Where the defendant’s conduct amounts to a “dispossesion” (i.e., an
assertion of ownership rights in the chattel inconsistent with the rights of true owner), the
plaintiff will often have a choice of actions:
1a. Replevin, detinue, or claim and delivery: The plaintiff may obtain return of the
chattel and collect damages for its detention
1b. Forced sale damages: The measure of recovery is ordinarily the market
value of the goods at the time of the conversion.
2. pg. 79 Restatement “An intentional exercise of dominion or control over a
chattel which so seriously interferes with the right of another to control it that the
actor may justly be required to pay the other the full value of the chattel”
1. Consent: the plaintiff’s consent to the defendant’s conduct may prevent the defendant
from being liable for an intentional tort. Most courts require defendant to affirmatively
plead and prove that the plaintiff consented.
1. Types of consent: Two types equal consent based on the plaintiff’s behavior and
consent based on law.
a. Consent by plaintiff’s behavior: the plaintiff may consent by:
(i) Actual express consent: when the plaintiff actually communicates to
the defendant a willingness to submit to the defendant’s conduct; or
(ii) Apparent consent: implied from the plaintiff’s conduct in light of
the circumstances (i.e. the plaintiff, by conduct, has led defendant reasonably to believe
that plaintiff is willing to submit to defendant’s act. ex. one who enters into sport
impliedly consents to normal contact. ex. one who walks on the streets or uses mass
transportation impliedly consents to taps on the shoulder or brushings.
b. Consent by law: The plaintiff’s consent may be implied by law to a
bodily contact (e.g. Surgery ) that is necessary to save her life or some other
cardinal interest in person or property if:
(i) Plaintiff is unconscious or otherwise unable to consider matters and
grant or withhold consent;
(ii) an immediate decision is necessary;
(iii) There is no reason to believe that the plaintiff would not consent if
able to do so, and
(iv) A reasonable person in the plaintiff’s position would consent.
A. O’Brien v. Cunard S.S. Co.: Silence and inaction may imply consent to defendant’s
acts if the circumstances are such that a reasonable person would speak if he objected.
B. Hackbart v. Cincinnati Bengals, Inc.: An injury inflicted by one player upon
another during a professional football game may give rise to liability where the cause of
the injury was an intentional blow beyond the rules of the game.
C. Mohr v. Williams: If the defendant’s actions exceed the consent given, and he does
a substantially different act than the one authorized, then he is liable.
D. DeMay v. Roberts: There exists no privilege of consent when the plaintiff has
consented under a mistaken belief which has been instilled by defendant’s deceit. 2) An
assault is perpetrated by the inducement of consent through misrepresentation.
E. Hart v. Geysel: When one voluntarily engages in unlawful conduct which will
cause injury, such as a fight, privilege of consent can be asserted to defend any civil
action the plaintiff may bring.
(a) When acting in self-defense, a defendant is privileged to use force not
likely to cause death or serious bodily harm.
3. Defense of Others
(a) The defendant may also be privileged to use force to defend another
person. However, the defendant is privileged to use force only under the same
conditions as that person would be privileged to use force to defend himself.
4. Defense of Property
(a) A defendant is privileged to defend his land or chattels only through
the use of force not likely to cause death or serious bodily harm.
A. Katko v. Briney: No privilege exists to maintain a mechanical device which
defends property by automatically inflicting serious bodily injury on those intruders who
stimulate the firing mechanism.
5. Recovery of Property
(a) Under the present majority rule, there is no privilege to use force to
recover possession of land wrongfully withheld even where the owner has been
“tortiously dispossessed”. If the owner does use force to retake possession, he will be
liable for the resulting harm.
(b) A defendant who has been tortiously dispossessed of chattels is
privileged to use reasonable, nondeadly force in recapture of those chattels. The
privilege, however, is subject to the following conditions:
(i) Immediate right to possession
(ii) Demand: The defendant has demanded return of the chattel and
the demand has been ignored, or no demand was made because it would have been
futile or dangerous.
(iii) Fresh pursuit
(iv) Holder at fault
A. Hodgeden v. Hubbard: The law recognizes a privilege to recapture chattels when
the owner has been defrauded of his rightful possession and her pursues the wrongful
taker of his goods in fresh pursuit.
B. Bonkowski v. Arlan’s Department Store: There is a shopkeeper’s privilege to
detain a customer for investigation if the shopkeeper has reason to suspect that customer
has stolen goods.
A. Surocco v. Geary: The law recognizes a privilege to damage property to avert
threatened disaster when necessary in exigent circumstances.
B. Vincent v. Lake Erie Transp. Co.: Private necessity of avoiding destruction or
damage to one’s property gives rise to a privilege to invade the property of another, but
this privilege is limited to entry and compensation must be made for any damage
resulting from it.
C. One is privileged to enter land in the possession of another if it is, or if the actor
reasonably believes it to be, necessary for the purpose of averting an imminent public
D. Whereas public necessity is an absolute defense, private necessity is a qualified
defense, in which case the actor will be liable in damages for any harm done.
Furthermore, the actor’s privilege of necessity will supersede a landowner’s privilege to
defend his property by use of reasonable force.
7. Authority of Law
A. Sindle v. New York City Transit Authority: A person falsely imprisoned is not
relieved of the duty of reasonable care for his own safety in extricating himself from the
B. An arrest under a warrant is not privileged unless the person arrested
(1) is a person sufficiently named or otherwise described in the warrant and is,
or is reasonably believed by the actor to be, the person intended, or
(2) although not such person, has knowingly caused the actor to believe him to
(a) Parents and teachers are recognized as having the privilege to use such
“reasonable” force or confinement as they believe “reasonably” necessary for the proper
control, training, and education of children in their care.
9. 9 Defenses to Intentional Torts DODD, SLASH CORN
Defense of Other
Defense of chattle/land
Recapture of Chattels
10. Consent is ineffective in 5 situations: Colin Darke Follows Several Idiots
2. Elements of Cause of Action: 1. A duty to use reasonable care. 2. Breach of Duty. 3.
A reasonably close causal connection between the conduct and the resulting injury =
causation. 4. Actual loss or damage resulting to the interests of another.
(a) Prima facie case:
Act or Actionable Omission by Defendant
Duty of Due Care
Breach of Duty (Lack of due care)
Actual Cause (“Cause in fact”)
Proximate Cause (“Legal cause”)
3. A Negligence Formula:"Where an act is one which a reasonable man would recognize as
involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of
such magnitude as to outweigh what the law regards as the utility of the act or of the particular
manner in which it is done."
Restatement (Second) of Torts § 291.
A. Lubitz v. Wells: Conduct which is reasonable and has low probability of
resulting in harm to others is not negligence.
B. Blyth v. Birmingham Waterworks Co.: Negligence involves the creation
of an “unreasonable” risk, by act or omission, which a reasonable and prudent man would
C. Gulf Refining Co. v. Williams: An action for negligence exists when the
defendant incurs a risk that makes the possibility of harm real enough so that a person of
ordinary prudence would take some action to avert the threatened danger.
D. Chicago B&Q R. Co. v. Krayenbuhl: When the owner of dangerous
premises knows, or has good reason to believe, that children trespassers, so young as to
be ignorant of the danger, will be attracted to and will resort to such premises, he is under
a duty of care to protect such children from the risks arising from such premises.
E. U.S. v. Carroll Towing Co.: Forseeable risk: enough liklihood where a
reasonably prudent person would take steps to avoid.
4. The Standard of Care-The Reasonable Prudent Person
A. Vaughan v. Menlove: The standard of care is founded on the judgment of the
person of ordinary prudence, not the subjective judgment of the defendant, even though
this judgment was based on an honest attempt to act reasonably. Objective
Standard=reasonable person in the circumstances.
B. Delair v. Mcadoo: In exercising his duty of due care for the safety of others, every
automobile driver and owner is charged with such knowledge of the safe condition of his
car as can be ascertained through a reasonable inspection.
C. Trimarco v. Klein: Evidence of custom and usage by others engaged in the same
business is admissible as bearing on what is reasonable conduct under all the
circumstances, which is the quintessential test of negligence.
D. Cordas v. Peerless Transportation: A person is not necessarily negligent if, in an
emergency, he acts to avoid injury to himself and in doing so injures bystanders.
Protecting life + Emergency.
E. Roberts v. State of Louisiana: The standard of care applicable to handicapped
persons is that they must take those precautions that ordinary, reasonable persons would
if they were similarly handicapped.
F. Robinson v. Lindsay: A child will be held to an adult standard of care when he
engages in an inherently dangerous activity, such as the operation of a powerful motor
G. Breunig v. American Family Ins. Co.: A person seized with a sudden mental
disability for which he had no warning will be excused from the general rule of holding
an insane person liable for his negligence.
H. The Reasonable Prudent Person: Each person owes a duty to behave as a
reasonable person would under the same or similar circumstances.
I. Heath v. Swift Wings, Inc. The Professional: Even as to professionals, the
standard of care is an objective one and may not be tailored to the individual
characteristics of each defendant. If the defendant undertakes to render any service in a
recognized profession or trade, she is held, at a minimum, to the standard of care
customarily exercised by members of that profession or trade.
J. Hodges v. Carter: An attorney acting in good faith and with an honest belief that his
actions are in the best interest of his client is not liable for mistaken advice in an area of
K. Boyce v. Brown: Negligence on the part of a physician or surgeon, by reason of his
departure from the proper standard of practice, must be established by expert medical
testimony, unless the negligence is so grossly apparent that a layman would have no
difficulty in recognizing it.
L. Morrison v. MacNamara: Ultimate standard is what is Reasonable, when a
statute says x y z it does not hold if you prove x y z is unreasonable. The standard of care
applicable to board Certified physicians, hospitals, medical laboratories, and other health
care providers is measured by the national standard of care.
M. Scott v. Bradford: A doctor is under a legal obligation to disclose sufficient
information to a patient to enable him to make an informed decision regarding a proposed
N. Moore v. The Regents of the University of California: A physician has a duty to
disclose to a patient intended research connected to the patient’s treatment.
(C) Aggravated Negligence: “Degrees” of Care. It is obvious, and elementary, that
the care required by the standard of the reasonable person will vary according to the risk.
As the danger increases, the actor is required to exercise caution commensurate with it,
and so to be more careful.
5. Rules of Law
A. Pokora v. Wabash RY. Co.: Unless reasonable minds could not differ on the
point, the standard by which negligence is measured is for the jury to decide. Failure to
get out of a vehicle and look before crossing a railroad track is not contributory
negligence as a matter of law.
6. Violation of Statute
A. Osborne v. McMasters: When a statute imposes a legal duty, violation of the
statute constitutes conclusive evidence of negligence, i.e., negligence per se.
(A) Applicability of Statute
B. Stachniewicz v. Mar-Cam Corp.: A violation of a statute or regulation constitutes
negligence as a matter of law when violation results in injury to a member of the class of
persons intended to be protected by the legislation and when the harm is of the kind
which the statute or regulation was intended to prevent.
C. Ney v. Yellow Cab Co.: The violation of a statute designed to protect the public
safety constitutes prima facie evidence of negligence.
D. Perry v. S.N. and S.N.: Violation of a mandatory child abuse reporting statute does
not constitute negligence per se.
(B) Effect of Statute
E. Martin v. Herzog: The unexcused omission to perform a statutory duty is
negligence per se.
F. Zeni v. Anderson: Violation of a statute creates a presumption of negligence, which
may be rebutted by showing of inadequate excuse for the violation.
7. Proof of Negligence
(A) Court and Jury: Circumstantial Evidence: The plaintiff may rely on
circumstantial evidence to create an inference of what occurred.
A. Anjou v. Boston Elevated Railway Co.: Circumstantial evidence can sustain
plaintiff’s burden of proof of negligence only if a reasonable jury can draw from it the
positive inference that defendant was negligent.
B. Joye v. Great Atlantic and Pacific Tea Co.: Without constructive notice of a
dangerous condition, a defendant cannot be held liable for negligence.
C. Jasko v. F. W. Woolworth Co.: When the operating methods of a proprietor are
such that dangerous conditions are continuous or easily foreseeable, conventional notice
requirements need not be met.
(B) Res Ipsa Loquitur: In certain cases, the very fact that a particular harm has
occurred may itself tend to establish both parts of the breach requirement: what happened
and that is was through the defendant’s unreasonable conduct. Then the law may permit
an inference or a presumption that defendant was at fault.
D. Byrne v. Boadle: When it is highly probable that an injury is due to the negligence
of the defendant, and the defendant has better access to the evidence concerning the
injury, the doctrine of res ipsa loquitur creates an inference that the defendant was
negligent, and puts the burden on defendant to introduce contrary evidence.
E. McDougald v. Perry: The doctrine of res ipsa loquitur provides an injured plaintiff
with an inference of negligence where direct proof is not available, if the plaintiff
establishes the instrumentality causeing his injury was under the exclusive control of the
defendant and the accident is one that would not, in the ordinary course of events, have
occurred in the absence of negligence on the part of the one in control of the
F. Larson v. St. Francis Hotel: The doctrine of res ipsa loquitur applies only where
the cause of the injury is shown to be under the exclusive control and management of the
G. Ybarra v. Spangard: Where an unexplained injury occurs during a medical
procedure to a part of the body not under treatment, res ipsa loquitur applies against all
of the doctors and medical employees who take part in caring for the patient. When
multiple parties were under exclusive control at one point or another and the
circumstantial evidence is enough to show someone is at fault the burden shifts to
defendants to prove they are not at fault.
H. Sullivan v. Crabtree: The doctrine of res ipsa loquitur merely affords reasonable
evidence, in the absence of an explanation, that injury was caused be negligence. Even if
the facts are unexplained in a res ipsa loquitur situation, the jury may still refuse to
make a finding of negligence.
V. Causation in Fact: The defendant’s negligent act must be the cause of the plaintiff’s injuries
in order to impose liability. This involves two separate determinations: (i) whether the
defendant’s conduct was the actual cause (or cause in fact) of the injuries and (ii) whether
it was the proximate (or legal) cause thereof.
(a) “But for” rule: The defendant’s negligent act must have been the cause in
fact of the plaintiff’s injuries. If the plaintiff would not have been injured but for the
defendant’s act, that act is a cause in fact of the injury.
1. Sine Qua Non
A. Perkins v. Texas and New Orleans Ry. Co.: Negligence will not give rise to
liability if the injury would have happened even if the negligence had not occurred.
2. Proof of Causation
B. Gentry v. Douglas Hereford Ranch, Inc.: Cause in fact is established when a
plaintiff can demonstrate that an event would not have occurred but for the defendant’s
C. Reynolds v. Texas and Pacific Railroad Co.: Although an injury might possibly
have occurred even in the absence of another’s negligence, if the negligence greatly
multiplies the chances of accident to the injured person and is of a character naturally
leading to the accident’s occurrence - the mere possibility that the accident might have
happened without the negligence is not sufficient to break the chain of cause and effect
between the negligence an the injury.
D. Kramer Service, Inc. v. Wilkins: One cannot recover for an injury if he shows
just a possibility that the injury was caused by another’s negligence.
E. Wilder v. Eberhart: A defendant’s expert witness may render an opinion
regarding possible causation.
F. Herskovits v. Group Health Cooperative of Puget Sound: A plaintiff need not
demonstrate that a decedent probably would have survived but for medical malpractice to
state a cause of action for such malpractice.
G. Daubert v. Merrell Dow Pharmaceuticals, Inc.: An expert theory on causation
need not be generally accepted as reliable in the relevant scientific community in order to
3. Concurrent Causes: Where the separate negligent acts of the defendant and a
third party concur to cause a single injury, and it appears that the plaintiff would
not have been injured but for the concurrence, the both the defendant and the third
party are actual causes.
H. Hill v. Edmonds: When separate acts of negligence combine to produce directly a
single injury, each tortfeasor is responsible for the entire result, even though his act
alone might not have caused it.
I. Anderson v. Minneapolis, St. P. and S. St. M. R.R. Co.: If one negligently sets a fire
which combines with another fire of no responsible origin, he is liable if his fire would
have caused the damage independent of the other fire, or if his fire materially caused the
damage. In other words, if one’s negligence would have caused the damage
complained of , he is liable and it is irrelevant whether, in fact, another force combined
to cause the damage.
4. Determining Which Party Caused the Harm
J. Summers v. Tice: When two defendants are both negligent, but only one of
them could have caused the plaintiff’s injury, the court will hold them both liable
when it cannot determine which of the defendants caused the damage.
K. Sindell v. Abbott Laboratories: Where several manufacturers produce and
distribute a dangerously defective product, each should bear part of the damages due an
injured plaintiff in proportion to the share of the total market it supplied.
VI. Proximate or Legal Cause: Defendant’s liability must stop short of the most far-reaching
and bizarre consequences.
1. “foreseeability” or “scope of the risk” view, would limit the defendant’s liability to
those results that are of the same general sort that made the defendant’s conduct negligent in the
fist place; i.e., results of a generally foreseeable nature, both as to kind of injury and as to
2. The “direct causation” view: holds that the defendant is liable for all consequences of
her negligent act, provided that these consequences are not due in part to what might be
called “superseding intervening causes”.
A. Atlantic Coast Line R. Co. v. Daniels: The law will look to see whether the
wrongful act was the proximate cause of the injury complained of in determing
B. Ryan v. New York Centeral R.R. Co.: Damages can be awarded only when the
injury is immediate and not the remote result of defendant’s negligence.
3. Unforeseeable Consequences
C. Bartolone v. Jeckovich: A tortfeasor bears responsibility for all damages
proximately caused by tortious conduct, even if the damages appear disproportionate to
the tortious conduct.
D. “direct causation”: In re Arbitration Between Polemis and Furness, Withy
and Co., Ltd.: The fact that the kind of damage which an act might probably cause
was not the damage anticipated is immaterial so long as the resulting damage is directly
traceable to the negligent act, and not due to independent cause having no connection
with the negligent act.
F. “foreseeablility” Overseas Tankship lit. v. Morts Dock and Engineering Co.,
Ltd. “Wagon Mound No. 1.”: even though injury may result from a negligent act,
liability for that injury is limited to the risk reasonably to be foreseen.
G. “foreseeablility”: Overseas Tankship ltd. v. Miller Steamship Co., “Wagon
Mound No. 2”: One who is knowledgeable of a risk and can reasonably prevent it is
liable for damages resulting form his failure to do so.
H. Palsgraf v. Long Island Railroad Co.: The risk reasonably to be perceived
defines the duty to be obeyed.
(i). “Duty” formulation: The majority opinion phrased its rule in terms of “duty”,
more than “foreseeablility”. The question, the court said, was whether the defendants
had a duty of care to the plaintiff which was violated by their acts. But this formulation
simply poses the same question as to the scope of liability; if the rule is that a defendant
will be liable only to a plaintiff as to whom his conduct imposed a foreseeable risk, it
will also be the case that the defendant violated no duty to a plaintiff as to whom there
was no foreseeable risk.
I. Yun v. Ford Motor Co.: A claim of strict liability may be defeated if the defendant
can show that an intervening superceding event or another sole proximate cause
resulted in the plaintiff’s injury.
2. Intervening Causes: Questions of proximate cause arise particularly frequently in
cases where the plaintiff’s injury is precipitated by what is generally called an “intervening
cause”. An intervening cause is a force which takes effect after the defendant’s
negligence, and which contributes to the negligence in producing the plaintiff’s
A. Superseding cause: Some, but not all, intervening causes are sufficient to
prevent the defendant’s negligence from being held to be the proximate cause of
the injury. Intervening causes of this kind are usually called “superseding
causes”, since they supersede, or cancel, the defendant’s liability.
J. Derdiarian v. Felix Contracting Corp.: An intervening act will not serve as a
superseding cause, relieving the defendant of liability, where the risk of the
intervening act occurring is the very same risk which rendered the defendant
K. Intervening Causes: The mere fact that an intervening act was unforeseen sill not
relieve the defendant guilty of primary negligence from liability unless the intervening
act is something so unexpected or extraordinary as that it could not or ought not to be
anticipated. (Watson v. Kentucky and Indiana).
(i) You are not held to forsee a criminal act. You would not be responsible for the
risk you created plus the intervening act.
L. Fuller v. Preis: As a matter of law, an act of suicide is not a superseding cause in
negligence law precluding liability. This court held “irresistable impulse” could be
foreseeable. Usually a court will hold that a decision to commit suicide is an
independant act not within the scope of the risk.
M. McCoy v. American Suzuki Motor Corp.: The rescue doctrine may be invoked
in products liability cases, requiring the rescuer-plaintiff to prove that the defendant’s
conduct was the proximate cause of his injuries. *if someone is in trouble it is
foreseeable that someone will try to help them.*
3. Public Policy
A. Kelly v. Gwinnell: A social host may be liable for furnishing alcohol to an
intoxicated guest. This is court deciding if there is a duty of care.
B. Enright v. Eli Lilly and Co.: An injury to a mother which results in injuries to a
later-conceived child does not establish a cause of action in favor of the child against the original
tortfeasor. This is court drawing a line.
4. Shifting Responsibility: Something about the relationship where control shifts
whereby responsibility shifts. ex. by contract.
VII. Joint Tortfeasors
* If more than one person is a proximate cause of the plaintiff’s harm, and the
harm is indivisible, each defendant is liable for the entire harm.
Basis for Joint Tortfeasors:
ACTORS HAVE A COMMON DUTY
CONCERT OF ACTION
DIC=Duty, Indivisible, Concert
1. Liability and Joinder of Defendants
A. Bierczynski v. Rodgers: Individuals who are party to a motor vehicle race on a
highway are tortfeasors acting in concert and each participant is liable for harm to a
third person arising from tortious conduct because he has engaged in and induced the
B. Coney v. J.L.G. Industries: The adoption of comparative negligence does not
require the abolition of joint and several liability.
C. Bartlett v. New Mexico Welding Supply: Joint and several liability will not be
applied when pure comparative negligence is adopted.
D. Comparative negligence: Many states have enacted comparative negligence
statutes, whereby if the plaintiff is found to be, say, 30% responsible for the accident
and the defendant 70% responsible, the defendant pays only 70% of the damage. When
a case involving multiple defendants arises in a comparative negligence jurisdiction,
each defendant can plausibly claim that the existence of comparative negligence should
nullify the doctrine of “joint and several liability.” Such a defendant can argue that just
as a defendant shouldn’t pay for the plaintiff’s negligence, so he should not have to pay
for the negligence of other defendants.
2. Satisfaction and Release
A. Bundt v. Embro: When individuals are joint tortfeasors with the state, satisfaction
from the state discharges the individuals.
B. Cox v. Pearl: Plaintiff does not relinquish his cause of action against a tortfeasor
by releasing a joint tortfeasor, if the plaintiff expressly reserves the right to sue others
who may be liable.
C. Only one recovery: A plaintiff may bring an action against any or all of the
potential defendants in order to secure a judgment. However, she is entitled to only one
satisfaction of her claim.
D. Release: A plaintiff who has possible causes of action against two or more
defendants may settle with one while pursuing a lawsuit against the remainder.
3. Contribution and Indemnity
A. When two or more persons become liable in tort to the same person for the same
harm, there is a right of contribution among them, even though judgment has not been
recovered against all or any of them.
B. The right of contribution exists only in favor of a tortfeasor who has discharged the
entire claim for the harm by paying more than his equitable share of the common
liability, and is limited to the amount paid by him in excess of his share. No tortfeasor
can be required to make contribution beyond his own equitable share of the liability.
C. There is no right of contribution in favor of any tortfeasor who has
intentionally caused the harm. Note: A defendant who has committed and
intentional tort may not seek contribution, even from a tortfeasor equally at fault.
D. When tortfeasor has a right of indemnity against another, neither of them has a right
of contribution against the other.
E. Indemnity: If two persons are liable in tort to a third person for the same harm and
one of them discharges the liability of both, he is entitled to indemnity from the other if
the other would be unjustly enriched at his expense by the discharge of the liability.
F. Instances in which indemnity is granted under this principle include the
(1) the indemnitee was liable only vicariously for the conduct of the indemnitor;
(2) the indemnitee acted pursuant to directions of the indemnitor and reasonably
believed the directions to be lawful;
(3) the indemnitee was induced to act by a misrepresentation on the part of the
indemnitor, upon which he justifiably relied;
(4) the indemnitor supplied a defective chattel or performed defective work upon
land or buildings as a result of which both were liable to the third person, and the
indemnitee innocently or negligently failed to discover the defect.
G. Whereas contribution involves equal apportionment, or sharing, among
torfeasors, indemnification shifts the entire loss from the party who was found liable
to the actual wrongdoer who was primarily responsible for the harm.
H. The most common situations involving indemnification include the following:
(1) judgments based on derivative or vicarious liability such as master/servant;
(2) landowner under non-delegable duty (e.g., hiring an independent contractor);
(3) initial tortfeasor/party whose malpractice aggravated plaintiff’s injury;
(4) retailer (or any supplier in chain of distribution)/manufacturer;
(5) automobile owner-driver
4. Apportionment of Damages
A. Damages for harm are to be apportioned among two or more causes where
(1) there are distinct harms, or
(2) there is a reasonable basis for determining the contribution of each cause to a
B. Damages for any other harm cannot be apportioned among two or more causes.
VIII. Duty of Care
1. Duty to Act for Protection of Others
(A) The fact that the actor realizes or should realize that action on his part is necessary
for another’s aid or protection does not of itself impose upon him a duty to take such
(B) No duty to act: The general rule is that there is no duty of care for nonfeasance
(i.e., omission to act). Moral obligation alone does not impose a duty to aid another.
Although under no duty to act, one who begins to act, however, is thereby placed under
a duty to act reasonably.
(C) Upon engaging in any human activity, the law imposes a general duty of reasonable
care such that the actor is required to act as an ordinary, reasonable, prudent person, as
viewed by an objective standard, to prevent any unreasonable risk of foreseeable harm.
(D) Professional Standard: An individual with special skills and knowledge in a
certain area is required to exercise that knowledge and skill ordinarily possessed by a
member of that profession in good standing in the same or similar community.
(E) In emergency situations a duty is imposed to act as a reasonable person would
under the same emergency.
2. Special Relations Giving Rise to Duty to Aid or Protect
(A) A common carrier is under a duty to its passengers to take reasonable action
(1) To protect them against unreasonable risk of physical harm, and
(2) To give them first aid after it knows or has reason to know that they are ill or
injured, and to care for them until they can be cared for by others.
(B) An innkeeper is under a similar duty to his guests. Note: Common carriers and
innkeepers may be liable for even slight negligence because of the very high degree of
(C) A possessor of land who holds it open to the public is under a similar duty to
members of the public who enter in response to his invitation.
(D) One who is required by law to take or who voluntarily takes the custody of another
under circumstances such as to deprive the other of his normal opportunities for
protection is under a similar duty to the other.
3. Duty to Control Conduct of Third Persons: There is no duty to control the conduct of
a third person as to prevent him from causing physical harm to another unless
(A) A special relation exists between the actor and the third person which imposes a
duty upon the actor to control the third person’s conduct, or
(B) A special relation exists between the actor and the other which gives to the other a
right to protection.
4. Duty of Parent to Control Conduct of Child
(A) A parent is under a duty to exercise reasonable care so to control his minor child as
to prevent hime from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if the parent
(1) knows or has reason to know that he has the ability to control his child, and
(2) Knows or should know of the necessity and opportunity for exercising such control.
5. Duty of Master to Control Conduct of Servant
A. A master is under a duty to exercise reasonable care so to control his servant while
acting outside the scope of his employment as to prevent him from intentionally harming
others or from so conducting himself as to create an unreasonable risk of bodily harm to
(1) the servant
(a) Is upon the premises in possession of the master or upon which the servant is
privileged to enter only as his servant, or
(b) Is using a chattel of the master, and
(2) The master
(a) Knows or ahs reason to know that he has the ability to control his servant, and
(b) Knows or should know of the necessity and opportunity for exercising such
6. Duty to aid others and services gratuitously rendered
1. Duty to act when prior conduct is found to be dangerous
(A) If the actor does an act, and subsequently realizes or should realize that it has
created an unreasonable risk of causing physical harm to another, he is under a duty to
exercise reasonable care to prevent the risk form taking effect.
(B) The rule stated in Subsection a. applies even though at the time of the act the actor
has no reason to believe that it will involve such a risk.
2. Duty to aid another harmed by actor’s conduct
(A) If the actor knows or has reason to know that by this conduct, whether tortuous or
innocent, he has caused such bodily harm to another as to make him helpless and in
danger of further harm, the actor is under a duty to exercise reasonable care to prevent
such further harm.
7. Duty of One Who Takes Charge of Another Who is Helpless
A. One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any bodily harm
caused to him by
(1) The failure of the actor to exercise reasonable care to secure the safety of the other
while within the actor’s charge, or
(2) The actor’s discontinuing his aid or protection, if by so doing he leaves the other in
a worse position than when the actor took charge of him.
B. “Good Samaritan” Statutes: Although liability is generally imposed on an individual
who, having no duty to render assistance, nevertheless does so and performs in a negligent manner
(i.e., malfeasance), some jurisdictions statutorily exempt volunteering doctors and nurses from
liability for ordinary (not gross) negligence.
8. LIMITED DUTY
(1) If the actor is a child, the standard of conduct to which he must conform to avoid
being negligent is that of a reasonable person of like age, intelligence, and experience under
(2) Children engaging in adult activities (i.e. operating an automobile, boat, or
airplane), however, are required to conform to an adult standard of care.
B. Mental Deficiency
(1) Unless the actor is a child, his insanity or other mental deficiency does not relieve
the actor from liability for conduct which does not conform to the standard of a reasonable man
under like circumstances.
C. Physical Disability
(1) If the actor is ill or otherwise physically disabled, the standard of conduct to which
he must conform to avoid being negligent is that of a reasonable man under like disability.
D. Acts and Omissions
(1) Negligent conduct may be either:
(a) An act which the actor as a reasonable man should recognize as involving an
unreasonable risk of causing an invasion of an interest of another, or
(b) A failure to do an act which is necessary for the protection or assistance of
another and which the actor is under a duty to do.
E. Duty of Automobile Driver to Guest
(1). Most jurisdictions impose on the driver of an automobile a duty of ordinary care
toward a guest. Under guest statutes, however, the driver has a lessened duty, namely to refrain
from gross, wanton, or willful misconduct. Compare: One who confers an economic benefit to ride
in an automobile is considered a “passenger,” and is owed a duty of ordinary care.
IX. Owners and Occupiers of Land
1. Outside the Premises
2. On the Premises
(A) Trespassers: one who has no permission/privilege to enter land.
(B) Licensee: one who enters another’s land with expressed or implied
permission, but without a business purpose and without an implied promise that
the landowner has made the premises safe for him.
a. Warn licensee of known dangerous artificial conditions creating an
unreasonable risk of harm to the licensee, and
b. Licensee doesn’t know about the condition and isn’t likely to discover it.
(C) INVITEE: one who either: (a) enters land by expressed/implied invitation to
conduct business with the owner, or (b) enters for purposes for which the land has
been held open to the public.
(D) Persons Outside the Established Categories
(1) Children Old Colin Really Deserves Looser Old-ladies
a. “Attractive nuisance” doctrine: requires landowners
Exercise ordinary care
To avoid harm to children (young enough not to appreciate
risk-probably not over 12);
Which due to a reasonably foreseeable risk;
Caused by a dangerous artificial condition on the land;
In an area where children are likely to trespass.
Also, the risk of injury must outweigh the cost of remedying the
(2) Persons Privileged to Enter Irrespective of Landowner’s Consent
(E) Rejection or Merging of Categories
3. Lessor and Lessee: Colin Violates Prostituting Ladies
Common area: Landlord remains liable for unreasonably unsafe conditions in
common areas (walkways, hallways, recreational facilities), and areas over which
landlord retains control (heating/AC, electrical, structural components, etc.)
Voluntary repair: At common law, landlord had no duty to repair (in absence of
covenant to do so). If repairs are undertaken voluntarily and performed negligently,
landlord would be liable for resulting injuries,
Public admission: If public is to be admitted (e.g. nightclub) and landlord knows it,
he must inspect for defects and repair them before tenancy begins, and
Latent hazards: Concealed, known dangerous conditions existing when the tenancy
begins and which the lessor knows or has reason to know of;
Status Duty Owed
Trespasser, undiscovered No duty
Trespasser, known or anticipated Ordinary care; duty to warn of
dangerous conditions which are know to
possessor ( no liability for obvious
Licensee Ordinary care; duty to warn of
dangerous conditions which are know to
Invitee Ordinary care; duty to (1) inspect
premises and/or land, and (2) make safe
for protection of invitees who enter.
1. Personal Injuries
a. In determining whether a damage award is excessive in a personal injury case, the
court must individually examine each of the five cardinal elements of damages: (1) past
physical and mental pain; (2) future physical and mental pain; (3) future medical expenses;
(4) loss of earning capacity; and (5) permanent disability and disfigurement.
b. Gratuitous or discounted medical services are a collateral source and are not to be
considered in assessing the damages owed by a tortfeasor to a plaintiff in a personal injury
c. DUTY TO MITIGATE: A tort victim may not recover damages for a permanent
injury if an operation could correct the injury and a reasonable person under similar
circumstances would submit to treatment.
2. Physical Harm to Property
3. Punitive Damages
XI. Wrongful Death and Survival
1. Wrongful Death: Common law tort actions abated upon the death of either party.
Defamation and privacy actions still do not survive the victim’s death; however, property damage
and personal injury may be recovered for most torts through statutory enactment.
a. A wrongful death action brought by a personal representative or spouse directly
compensates the survivors for losses resulting from decedent’s death. Pecuniary damages
include loss of support, loss of services, loss of consortium, but not pain and suffering.
Creditors have no claim. Contributory negligence of the deceased bars recovery.
b. Recovery for the negligent death of a viable fetus in utero is generally permitted by a
wrongful death action.
2. Survival: A survival statute preserves the claims of the decedent existing at death.
Damages for pain and suffering, medical expenses, and lost wages until the time of
decedent’s death are paid to the estate (not to the beneficiaries) and are subject to claims of
1. Plaintiff’s Conduct
(A) Contributory Negligence: Contributory negligence is conduct on the part of the
plaintiff which falls below the standard to which he should conform for his own protection,
and which is a legally contributing cause co-operating with the negligence of the defendant in
bringing about the plaintiff’s harm.
(1) Contributory negligence is not a defense either to intentional torts, willful
misconduct, or to a strict liability action.
(2) Rescuers: The ordinary negligence of a rescuer is not contributory negligence. Nor
is assumption of the risk an available defense in a rescue doctrine.
(3) Except where the defendant has the last clear chance, the plaintiff’s contributory
negligence bars recovery against a defendant whose negligent conduct would otherwise make
him liable to the plaintiff for the harm sustained by him.
(B) Comparative Negligence: In several states general statutes applicable to all
negligence actions, and in a great many others particular statutes applicable to certain types
of cases, have abrogated the contributory negligence rule, and have substituted reduction of
damages to be recovered by the negligent plaintiff in proportion to his fault.
(1) “Modified” v. “Pure” Comparative Negligence
a. Modified comparative negligence jurisdictions enable a negligent plaintiff
to obtain a recovery, provided plaintiff’s negligence is not equal to nor greater than that of
defendant; otherwise, no recovery is permitted. Some jurisdiction allow recovery unless
plaintiff’s negligence is greater than that of defendant (i.e., a plaintiff 51% at fault could not
recover in a modified comparative negligence jurisdiction).
b. Pure comparative negligence jurisdictions permit a negligent plaintiff to
recover even where his negligence exceeds that of defendant.
(C) Assumption of Risk: May be done expressly (by agreement or by
contract-exculpatory clauses) or impliedly (i.e., being hit by a foul ball at a baseball game,
but not working as an employee under unsafe working conditions.
The key elements of assumption of risk are:
(1) Knowledge of the risk using a subjective standard of the particular plaintiff
(Compare: objective, reasonable person standard for contributory negligence) and
(2) Voluntary assumption, involving some manifestation of consent sufficient to
relieve the defendant of his duty of reasonable conduct (i.e., a jaywalker may be contributorily
negligent, but he does not assume the risk, since he is not consenting to relieve oncoming drivers
of their duty to use reasonable care towards him).
(3) Except where he expressly so agrees, a plaintiff does not assume a risk of harm
arising from the defendant’s conduct unless he then knows of the existence of the risk and
appreciates its unreasonable character.
2. Statutes of Limitations and Repose
XIII. Vicarious Liability
A. Vicarious liability makes one liable for another’s wrongful conduct, due to a “special
relationship” between them. Note that this is really liability without fault, because the
person who’s being held liable has done nothing wrong.
B HELPFUL HINTS
Joint venturers are vicariously liable for torts committed within the scope of the venture
(a joint venture requires an agreement, a common purpose, a common pecuniary interest,
and a mutual right of control);
A car owner is generally not liable for torts committed while others drive his car (although
some states have changed this by statute, making car owners liable for torts committed by
family members using the car with the owner’s permission (this is the “family car
doctrine”), or anyone using it with permission (the “permissive use doctrine”))’
Parents are not vicariously liable for their children’s torts (but they may be directly
liable, e.g., for giving the child a dangerous object the child lacks the maturity and
judgment to control).
NOT limited to negligence: If any intentional tort occurs within the scope of employment,
the employer will be liable (e.g., assault, battery, false imprisonment, emotional distress);
Instructions don’t insulate the principal: The principal can’t insulate himself with
careful instructions that the employee violates;
Business partners are vicariously liable for torts committed within the scope of the
RELATIONSHIP CONTRIBUTORY NEGLIGENCE
Joint Venture Yes
Independent Contractor No, unless inherently dangerous activity
or nondelegable duty
Automobile Owner-Driver No, unless imposed by statue
Parent-Child No, but liability in negligence may be
Bailor-Bailee No, but liability in negligence may be
Tavern-Keeper/Patron No, unless imposed by Dram Shop Act
1. Respondeat Superior: Employers are liable when the tortuous act occurs within the
scope of the employment.
2. Independent Contractors: NO; however, exceptions to this include situations where:
1. Ultra-hazardous activities are involved (e.g., demolition);
2. Duty is non-delegable due to public policy considerations (e.g., duty of railroad to
fence in tracks; duty of car owner to maintain the car);
3. Illegal activities
3. Joint Enterprise
5. Imputed Contributory Negligence: Imputed contributory negligence bars the plaintiff
from recovery due to someone else’s negligence. There are only three principal situations in
which someone else’s negligence will be imputed to the plaintiff, under Rest. 2d § 485:
Principal-agent; Joint venture; and a suit based on injury to someone else (e.g., wrongful
death or loss of consortium; here, the victim’s contributory negligence will be imputed to
EX: Say Igor is Dr. Frankenstein’s chauffeur. Igor drives Frankenstein to his laboratory one
day, when the limousine collides with a car driven by Madeleine. Frankenstein is injured.
The accident was due to both Igor’s and Madeleine’s negligence. Frankenstein sues
Madeleine. Her defense will be contributory negligence; not Frankenstein’s personally, but
Igor’s, which will be imputed to Frankenstein on the basis of the principal-agent
relationship between them.
XIV. Strict Liability
1. Animals: A possessor of a wild animal is subject to liability to another for harm done
by the animal to the other, his person, land or chattels, although the possessor has exercised
the utmost care to confine the animal, or otherwise prevent it from doing harm.
a. This liability is limited to harm that results from a dangerous propensity that is
characteristic of wild animals of the particular class, or of which the possessor knows or has
reason to know.
b. Wild animals are those not by custom devoted to the service of mankind, whereas
domestic animals do so serve mankind and generally include livestock and household pets.
2. Abnormally Dangerous Activities: One who carries on an abnormally dangerous
activity is subject to liability for harm to the person, land or chattels of another resulting
from the activity, although he has exercised the utmost care to prevent the harm.
a. This strict liability is limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous.
b. An ultrahazardous activity is one which necessarily involves a risk of serious harm
that cannot be eliminated no matter how much care is used and one which is not a matter of
3. Limitations on Strict Liability: Assumption of Risk of harm bars his recovery in a
strict liability action/The contributory negligence of the plaintiff is not a defense in a strict
XV. Products Liability
1. Development of Theories of Recovery: From Rest. (2d), § 402A
1. DEFECT: The product must have been in a defective condition unreasonably
dangerous to the user/consumer or his property.
2. CONTROL: When it left the defendant’s control (that means defendant can
be liable even if he didn’t cause the defect);
3. CHANGES: Product must not undergo significant changes before it gets to
4. BUSINESS: The seller must be in the business of selling the product (that is,
he can’t be a casual seller, or merely a user);
5. CAUSATION: Damages must result from the defect (defendant is liable for
any physical damage; where the only loss is economic, like repairs or lost
profits, strict liability is usually denied); and
6. NO PRIVITY REQUIRED: Duty extends to anyone foreseeable endangered
by the product.
Defendant Can’t Conceal Bad Commercial Products
Defect Changes Control Business Causation Privity
(A) Negligence: 4 elements of a prima facie case of product liability based on
negligence. (1) Duty (which differs depending on whether defendant is a manufacturer,
wholesaler or retailer); (2) Breach; (3) Causation (4) Damages as with any negligence claim,
the heart of a product liability claim based on negligence looks at conduct unreasonable in
Two tests used to determine if a product should be considered “defective”
(1) The “consumer contemplation” test: The dangerousness of the product is beyond the
expectation of the reasonable consumer who is familiar with the characteristics of the
(2) The “danger-utility” test: A product is defectively designed if its danger outweighs it
utility, considering the feasibility of a less dangerous, alternative design.
***Some factors relevant in risk-utility analysis are:
(1) The usefulness and desirability of the product-its utility to the user and to the public as a
(2) The safety aspects of the product-the likelihood that it will cause injury, and the probable
seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as
(4) The manufactures ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The users anticipated awareness of the dangers inherent in the product and their
avoidability, because of general public knowledge of the obvious condition of the product, or
of the existence of suitable warning instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price
of the product or carrying liability insurance.
(1) Express Warranties: A seller making a representation of fact which is a basis
of the bargain (i.e., more than mere “puffing”) will be liable on the contract to the plaintiff
upon breach of that warranty regardless of fault. Contributory negligence is no defense to
an express warranty action. Privity requirements vary by jurisdiction in accordance with
UCC 2-318, ranging from the purchaser’s immediate family to all foreseeable plaintiffs.
(2) Implied Warranties
a. Warranty of Fitness for a Particular Purpose: Under this warranty the seller
will be liable for goods found unfit for their intended purpose where the seller knows the particular
purpose for which the goods are required and the buyer relies in fact on the seller’s skill or
judgment in supplying the goods.
b. Warranty of Merchantability: Liability will result under this warranty where
the goods supplied are not of fair, average quality or are not generally fit for normal use.
c. In General: Warranty liability does not apply to services (such as repairs, blood
transfusions). Damages for personal injury, property damage, and purely economic loss are
recoverable. Due to privity limitations, only the particular seller (or retailer) is liable, but not
distributors or manufacturers. Disclaimers may serve as valid defenses, where not unconscionable.
A warranty of merchantability may be disclaimed either orally or in writing, but only if the word
“merchantability” is used.
(C) Strict Liability in Tort
2. Product Defects
(A) Manufacturing Defect
(B) Design Defect
(C) Warnings Defect
(A) Plaintiff’s Conduct
(B) Preemption and Other Government Actions
5. Defendants Other than Principal Manufacturers/Harm Other than Personal Injury
(A) Other Suppliers of Chattels
(C) Harm Other Than Personal Injury
6. Legislation and Products Liability
1. Nature of a Defamatory Communication
2. Libel and Slander
4. Basis of Liability
(A) Actual Malice, Burdens of Proof, and the Press
(B) Private Plaintiff’s
(C) Speech of Private Concern
(E) Public Figures and Public Officials
(A) Absolute Privilege
(B) Conditional or Qualified Privilege
XIX. Civil Rights
XX. Misuse of Legal Procedure
2. Concealment and Nondisclosure
3. Basis of Liability
(A) To the Recipient
(B) To Third Persons
7. Prediction and Intention
XXII. Interference With Advantageous Relationships
1. Business Relations
(A) Injurious Falsehood
(B) Interference With Existing or Prospective Contractual Relations
2. Family Relations
XXIII. Torts in the Age of Statutes
1. Implied Rights of Action and Statutory Duties
2. Express Rights of Action: Civil RICO
4. Courts v. Legislatures: Who Will Determine Tort Law?
XXIV. Compensation Systems as Substitutes for Tort Law
1. Employment Injuries
2. Automobile Accident Injuries
3. Other No-Fault Compensation Systems
4. The Future