Garrat V

I. INTRODUCTION AND HISTORY: DEVELOPMENT OF LIABILITY

BASED UPON FAULT

1) What is a Tort?

i. Body of Law

ii. A Civil Wrong (as distinguished from a public wrong or a Crime)

1. ―A civil wrong other than a breach of K, for which the law

provides a remedy‖ p. 1 CB – What a tort is NOT, not what

it is.

2. A tort action os a civil action to recover damages for

personal injury or property damage due to the action or

inaction of the D where the action is intentional, due to the

neg. of D or where D is strictly liable for his/her action(s)

iii. Amendatory System – Trying to prevent Self-Help

2) Damages – 3 Types

i. Verguilt

1. Damages if death occurred

ii. Bot

1. Damages if Personal Injury Occurred

iii. Vite

1. Damages for incidents of treason, acts against the state

3) Common Law Writ System

i. Trespass Viet Armas

1. Trespass

2. Immediate Injury

3. When there was only Trespass Viet Armas, many pleaders

would alter the facts of the case to fit the terms of the writ

they needed to plead the case.

ii. Trespass Contra Pacem Regis

1. Trespass on the Case

2. Consequential Injury

4) Where did Tort Law Begin? Fault-based v. no fault system:

i. Fault-based system – D should be held liable unless D can show

inevitable accident

1. Anonymous

a. Case says: You act at your peril.

b. Did we begin with a system of No fault liability?

c. All liability is the same.

2. Weaver v. Ward (P accidentally shot by P during the

course of military action)

a. Under a no-fault, absolute liability system, when the

D admitted the action but pled that it was w/o fault,

there is then, no case. D asked for immediate jt.

b. *D must prove that he was not liable/negligent.

c. Difference btwn state of mind for criminal and civil

cases.

i. intent required for criminal cases.

d. Non-faulty conduct = inevitable accident

ii. No-fault system – Only requirement, your act caused an injury.

a. i.e. Worker’s Comp. Injured worker received

compensation w/o regard to whose fault it was.

Began ion early 20th C.

2. Brown v. Kendall (A HUGE CASE – D accidentally hit P

w/ a stick while attempting to separate fighting dogs)

(similar to the hypo posed by Brian in Anonymous)

a. Was the act necessary or just proper and

permissible?

i. If Necessary  Not held liable IF acting w/

Ordinary care

ii. If only Proper and Permissable  Liable

UNLESS using extreme/extraordinary care

iii. If No Intent  D must use Ordinary care

Ordinary Care – ―The kind and degree of care, which prudent and cautious men would

use such as required by the exigency of the case, and such is necessary to guard against

probable danger.‖ Pp. 8-9

b. Burden of Proof that D did NOT use care was on

P.

i. In some JDs, the distinction btwn trespass

and case survived until comparatively

recently and in trespass, the burden of proof

fell on the D, while in the case, burden fell

on P. Finally abandoned in England in

1959. (Note 5)

RULE: In order to be held liable, D must have intended to cause harm or, if the act

was unintentional, it must have been done w/ want of ordinary care. Burden of

proof on P.

c. Defense of Contributory Care: (adopted in British

Court in Butterfield) If both D and P were not using

ordinary care, D not liable.

i. A more protective approach to liability.

Industrial revolution was beginning and

many tort Ds in Mass. At the time were

industrial employers. (Note 4)

3. Cohen v. Petty (D lost control of car after suddenly being

stricken by illness – could not anticipate illness.)

a. Evidence which is not a definite fact. (Question of

speed)

i. Should we accept this opinion testimony?

ii. If we didn’t accept this, we would eliminate

much of what helps us develop the case.

RULE: One who is suddenly stricken w/ an illness, which he had no reason to

anticipate, is not chargeable w/ negligence. If he had reason to believe that he would

be ill, then he can be held liable.

iii. Strict Liability

1. Spano v. Perini Corp.(Blasting of construction site nearby

cause damage even though no trespass and care was taken)

a. In Booth, ct believed that the neg. should be

required b/c NYC was just being built up in the

1880s and they wanted to encourage growth.

b. This ct. decided to impose Strict Liability

i. Upheld precedent, but said that based on that

precedent, Booth should have been decided

differently.



II. INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY

Stems from Trespass Viet Armes Writ

1) Intent

i. 2 Types of Intent

1. Subjective

a. It is Clear that D had intent

2. Objective

a. If a reasonable person could have foreseen that

harm might occur.

ii. Garrat v. Daily (Child sued for battery for pulling a chair out

from under an adult, causing injury)

1. Intent must be shown in 2 ways Desired Intent or subjective

intent.

RULE: In order to determine Intent, the act must be done for the purpose of

causing the contact or apprehension or w/ the knowledge on the part of the actor

that such contact or apprehension is substantially certain to be produced.

2. Is a child liable for his torts?

a. Yes.

b. Age only comes into play when considering his

knowledge that harm might occur.

iii. Spivley v. Battaglia (Smith says: difficult to understand. A

―friendly, unsolicited hug‖ which caused harm and resulted in a

case of 1. Negligence 2. Assault and Battery)

1. Characterizing btwn Intentional and Neg. Conduct.

2. This is a case of A and B, which was classified as a Neg.

case b/c the statute of limitations for A and B had expired.

DEF. OF ASSAULT AND BATTERY: Harmful and/or offensive bodily contact .

BATTERY: Intent to bring about the harmful or offensive consequence.

3. ***Distinguish btwn:

a. Intent to Act

i. D fires a gun – intends to fire the gun.

b. Intent to Cause Harm

i. The bullet hits someone – It is the intent to

act, not the intent to harm that determined

whether there is a tort.

1. i.e.: D fired gun intending to frighten

P, not to hit him. Liable if P gets hit.

iv. Ranson v. Kitner (D shot and killed P’s dog, believing it to be a

wolf – Trespass to Chattel)

1. Mistake

a. Mistake of Fact is not enough to defend a tort

b. Mistake of Intent does not mitigate the act

c. Why impose liability for mistake?

i. In cases of mistakenly appropriating P’s

property or cutting down trees on P’s

property, believing the land to be one’s own,

not to impose liability would UNJUSTLY

ENRICH the D. (Note 3)

d. Possible exception for Privilages

i. i.e,: If one reaches for a handkerchief and D

reasonably believes it to be a gun, D may

rely on privilege of self-defense. (Note 4)

v. McGuire v. Almy (Action for A and B where one who is

clinically insane threatened and struck her caretaker, causing

injury.)

1. Insanity is not a Defense – The Insane are held liable for

torts (it is a defense in Criminal law)

a. Exception – Note 4. Some jurisdictions have

carved out narrow exceptions for institutionalized

mentally disabled patients who cannot control or

appreciate the consequences of their conduct for

injuries caused for those employed to care for them.

2. Intent must be shown

a. One acting while in a comatose state is not liable

3. Voluntary Intoxication is not a defense

vi. Talmage v. Smith (D threw a stick at one boy on his property w/

the intent of scaring him, hit another boy P causing injury.)

1. If D had NO KNOWLEDGE that P was on roof and NO

INTENT to hit Smith (just to frighten)  P cannot recover

2. If D threw stick at Smith (INTENT) and if force used was

REASONABLE and NOT EXCESSIVE  P cannot

recover

a. Property owners may defend their property as long

as their act is not unreasonable.

3. If D INTENDED to hit Smith and force was

UNREASONABLE  D is liable

a. Doctrine of Transferred Intent: Intent may be

transferred (intended to hit Smith, hit Talmage –

judged as intent to hit even if the eventual target

was not where the intent lie.

2) Battery

i. Def. of Battery: Unlawful, undesired, and unprovoked use of force

on another person w/ the intention to harm or create the fear of

harm in that person; harmful touching. (Black’s Def.)

ii. Cole v. Turner

1. If no violence and no anger in a gentle touch – No Battery

2. Force against another – force in a rude, inordinate manner

– struggle that may do harm.

3. What a reasonable person may find offensive.

4. Note 2: Casts doubt of Spivey v. Battaglia.

a. Note after Spivey: If you act w/ intent, the damages

will probably be traced farther than if it is neg.

iii. Restatement 2d

1. §13. Battery: Harmful Contact

―An actor is subject to liability to another for battery if

a. he acts intending to cause a harmful or offensive

contact w/ the person of the other or 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.‖

(The act is still actionable if the harm is indirect).

2. § 18. Battery: Offensive Contact

―1. An actor is subject to liability to another for battery if

a. he acts intending to cause a harmful or offensive

contact w/ the person of the other or third person, or

an imminent apprehension of such a contact, and

b. an offensive contact with the person of the other

directly or indirectly results.

c. An act which is not done w/ the intention stated in

the Subsection (1,a) does not make the actor liable

to the other for a mere offensive contact w/ the

other’s person although the act involves an

unreasonable risk of inflicting it and, therefore,

would be negligent or reckless if the risk threatened

bodily harm.‖

3. Differs from #1 above – what if the touch is a pat on the

bum?

a. Hypo: If I try to scare you, but do not INTEND to

harm you, but I accidentally do harm you, am I

liable? YES.

4. When the injuries caused are more serious than those

reasonably anticipated, as long as the act itself was

intentional, the D is liable. (Note 2)

a. Vosberg v. Putney: Schoolboy kicked in the shins –

Seen as an offensive act since the kick was so light,

P didn’t even feel it. Couldn’t have been an attempt

to cause harm. If the incident happened on the

playground, D would not have been liable.

5. Battery does not require awareness on the part of the P.

(Note 6) i.e.: act by Dr. while patient is unconscious.

a. Does it make a difference if the Dr.’s act is

beneficial? No, but may be taken into account

when considering damages (see Mohr v. Williams)

6. Question of Consent:

a. i.e. Transmission of an STD. Is consent for sexual

relations consent if the P gets an STD? D must

know that he is infected or must know that he has

symptoms which should have made him aware that

he had the STD or had unprotected sex w/ someone

they knew had and STD. (Note 7)

iv. Fisher v. Carrousel Motor Hotel, Inc. (Action for A and B when

a minority would not be served in a hotel, never physically injured)

(Injury? An infliction of mental distress. A violation of Civil

rights. At the time of this action, Tx had not instituted a law of

emotional distress – had to be fit into A&B claim.)

1. Restatement said: the touch need not be direct. Even if

there is no direct touching  can constitute battery.

a. How far removed does the action have to be for it to

no longer qualify as a battery?

i. What if the plate was snatched, but no words

were exchanged, would that constitute a

battery? No.

ii. What if the waiter never touched the plate,

but spoke the words, would that constitute a

battery? No. Possible infliction if

emotional distress or civil rights actions.

Physical contact is necessary for a battery.

iii. Blowing pipe smoke into one’s face,

KNOWING they are allergic to it. Intent to

do harm. (Note 3)

2. Responsibility of Employer

a. Intentional torts are often outside the scope of the

employment and the employer would, therefore not

be held liable.



(Why did the tct enter the jdgmnt ―n.o.v.‖ (non obstante verdicto – Notwithstanding the

verdict. A judgment by the ct in favor of one party notwithstanding the jury’s verdict in

favor of the other party). May not have felt comfortable having a jury rule for monetary

damages where no actual monetary damages exist.)





3) Assault

Def. of Assault: The attempt or threat, accompanied by the apparent present

ability, to inflict bodily harm on another; the display of force as to cause fear of

bodily harm. (Black’s Def.)



Restatement § 21. Interest in freedom from apprehension of a harmful action.



i. I de S et ux. V. W de S (D came to home of P to buy wine,

struck at P w/ a hatchet but did not hit her)

1. May be liable for Assault even if there was no intent to

harm.

2. Causing apprehension – an assault even w/o a battery.

ii. Western Union Telegraph Co. v. Hill (Action for assault for

threatened sexual encounter where D remained behind counter and

never touched P).

1. Ability to commit the crime

a. Important in Criminal but not in Civil cases

b. It is the APPARENT, PRESENT ability to commit

the battery, not the actual ability.

i. As long as the P believes it COULD have

happened.

2. Ct. states that every Battery includes an assault (p.35 CB)

a. They are WRONG. i.e.: hit from behind

i. Assault must be knowledge and

apprehension (Note 6)

3. A conditional threat can constitute an assault

a. i.e.: If you don’t pay me, I’ll kill you.

4) False Imprisonment



Def. of False Imprisonment: the direct restraint of one person of the physical liberty

of another w/o adequate legal justification. (p.38 CB)





i. Big Town Nursing Home, Inc. v. Newman (Action for FI in a

nursing home against the will of the P)

1. Freedom From Confinement (not necessarily total liberty)

i.e.: can mandate that you only exit through one door, but

there must be an exit.

2. If you have an unreasonable escape and are injured, that is

false imprisonment.

3. ―Confinement can be as large as U.S.A.‖ (Note 3)

ii. Parvi v. City of Kingston (An action for FI by a boy who was

drunk and loud in an alley and was taken to a golf course by

police. P does not remember his confinement)

1. Issue of awareness.

a. Restatement §42. There can be no liability for FI,

unless the P is aware of the confinement at the time

or is harmed by it.

i. Freedom to go where the P pleases cannot

be restrained if P is unaware.

?[Under the restatements 2nd, the case could have been found for P even if there was no

awareness.]? from notes

ii. Many states have statutory conditions for

confining someone. If those statutes are

followed, they are immune to liability, and if

not, there may be a case. (Note 3)

iii. Hardy v. LaBelle’s Distributing Co. (Action for FI where an ee

of a dept. store was held in office after being accused of theft – she

did not ask to leave and they did not tell her she could not go.)

1. How does one prove the necessary elements of

confinements?

a. There was no force to keep her.

b. Did not tell her she could not go

c. Did not lock the door.

2. She stayed out of ―moral suasion‖ or ―moral persuasion‖.

a. What is the diff. Btwn duress and moral persuasion.

i. Difficult – a very fine line

ii. Could you argue duress in this case?

1. If she didn’t stay to clear her name,

she might loose her job.

2. Maybe she was under the impression

that she was under arrest.

iii. ―I think that her att’y malpracticed‖ – Smith

iv. Enright v. Groves (Action for FI where P claims that she was

imprisoned for charges other than those she was convicted of)

1. D liable

2. No liability fot FI if the P actually committed the crime

(Note 3)

v. Whittaker v. Sandford (An action for FI where the D, a leader of a

cult, kept P on his yacht for almost 1 month.)

(Is this a case of breech of contract? Is the K necessary for the P to

win the case?)

1. What is considered acceptable confinement? Do all ships

need to allow people off the ship at port in order not to be

liable? What about a cruise ship w/ designated stops and

only certain stops for debarkation?

2. Things to consider

a. Age, Etc.

i. What about parents wanting to ―deprogram‖

a child in a cult.

b. Be careful about making it determinant on the

mindset of the P. ie: P in Hardy wanted to stay to

clear her name, child in a cult, etc.

5) Intentional Infliction of Mental Distress

i. A Very new Tort.

ii. We are squeamish about embracing this kind of Tort.

iii. difficult to administer.

1. Ranges from Screaming on the roadway (road rage) to the

more serious case such as the one below.

iv. State Rubbish Collectors Ass’n v. Siliznoff (St. Rubbish

threatened P to get him to turn over his business. If he did not by

tomorrow, then they would use violence. P finally agreed, but did

not and D sued P for breach of K. P originally counter sued for

Assault, but won for IIMD.)

1. What’s the diff. btwn. Assault and IIMD

a. Assault must be the imminent threat of danger or

harm.

b. These threats made were for the future, not

―imminent‖, but mental distress.

c. Damages for assault and IIMD are the same.

2. FI must be actual confinement. The threat of future

confinement is not valid for FI.

a. This was not a case of FI when they said get to the

mtg or we’ll beat you, etc.

b. Was he confined when he was at the board mtg?

Smith thinks Yes.

3. the intentional action went on to cause a physical harm

a. Smith believes that he could actually have sued for

Personal Injury. (This was a new tort and Smith

thinks that the ct didn’t actually have to go as far as

they did w/ this new tort and that they could have

had the same result w/in the confines of already

existing tort law.)

b. Ct thinks that juries may be able to determine cases

of Emotional distress which is outside the norm of

reasonable conduct. BUT, it is difficult to ask them

to try to connect a physical consequence w/

emotional distress.

c. Some states now require physical consequences,

while others do not.

4. Intent

a. This case shows intent in ways we have seen in

other cases.

b. Now, the def. Of IIED is when one Intentionally or

recklessly causes severe emotional distress.

Negligence / Recklessness / Intent (Note 7)

v. Slocum v. Food Fair Stores of Florida (A clerk in a supermarket

made a lude comment to P, aggravating a pre-existing heart

disease, causing a heart attack)

1. Question of causal reaction

a. It is not reasonable that one would have a heart

attack from an insult. (even if P is sure that the

comment was the cause)

2. Outrageousness

a. What if the ee was aware of her condition?

i. Intent -- it turns this somewhat innocuous

act into an outrageous act.

b. Insults alone don’t usually apply to outrageousness

c. Ct will take cases away from juries when it is clear

that the jury cannot find the conduct to be

outrageous .

The conduct must be 1) outrageous and 2) cause severe emotional distress in a

reasonable person.

3. Higher Standard

a. There is a higher standard for common carriers and

public utilities than to other businesses.

i. People are more bound to the services of the

public utilities than to other establishments.

Restatement §46. ―Conduct intended to cause emotional distress only.‖ A blanket

provision for liability on the part of ―one, who, w/o a privilege to do so, intentionally

causes severe emotional distress to another,‖ indicating that the requisite intention exists

―when the act is done for the purposes of causing the distress or w/ knowledge *** that

severe emotional distress is substantially certain to be produced by [such] conduct.‖ Note

Abusive language is only one means by which the tort can be committed. CB p.52



vi. Harris v. Jones (Suit fir IIMD by GM ee w/ a speech impediment)

RULE: 4 elements must be fulfilled for one to be liable of intentional infliction of

emotional distress:

1) Conduct must be intentional or reckless

2) Conduct must be extreme and outrageous

3) Must be a causal connection between the wrong conduct and the emotional

distress

4) Emotional distress must be severe



Restatement 2d of Torts: § 46. Outrageous Conduct Causing Severe Emotional

Distress:

1) 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.

1. Conduct of employees usually does not transfer to ERs.

2. difficult to show the causal connection of the emotional

distress.

3. Jury Question

a. Ct of app. Agrees that there is no jury question here.

The question which must be determined is #4 of the

Rule Causing severe, emotional distress.

b. Smith still can’t believe this case. Doesn’t agree w/

outcome He had always been surprised that the ct

pulled the case away from the jury – it seems like a

jury case. Today this case could have been

addressed by the Am. Disability act.

(Note 1 Jones v. Clinton case., Note 3. Johnson case., Note 6: Positions of authority or

where D has the upper hand.)

vii. Taylor v. Vallelunga (Where P was a witness to the battery of her

father by D and, as a result, suffers severe fright and emotional

distress but physical damages as a result of the mental distress.)

1. No transfer of intent.

a. Not one of the first 5 trespass viet armis torts.

Those are the only torts for which transferred intent

is used.

i. Why – Cts are still trying to limit the use of

this tort.

2. Restatement § 46.2 states that a member of the immediate

family can sue for IIMD, but non family members can have

an action for IIMD only when there is Physical harm.

Hypo: If they knew someone was there, but did not know that it was his daughter, would

there be a claim?



6) Trespass to land

i. Mistake is not a defense. Is it an intentional tp to land when one

goes onto the property of another, causing no damage but, believed

it to be his land. (Similar to case of shooting a fox v. dog.)

ii. Good Faith is not a defense

iii. Dougherty v. Stepp. (Where D went onto the property of P w/ a

surveyor and chain carriers for the purpose of surveying P’s land

and claiming it as his own. No damage was done to property.)

1. Don’t have to prove damages to recover

Hypo: If one is driving a car which accidentally goes off the road and onto someone’s

land. Intentional? The P would only be liable if there are damages.



iv. Bradley v. American Smelting and Refining Co. (Where P lived

north of D’s plant and Sued for damages of TP and nuisance from

heavy deposit on their property of microscopic and airborn

particles of heavy metals.)

1. Protecting the exclusive right of possession

2. Must show actual and substantial damage. (I.e. get soil

samples)

v. Herrin v. Sutherland (While the D was hunting ducks and

migratory game birds, and while standing on the property of

another, shot repeatedly at waterfowl flying over P’s land.)

1. Air Space

a. It can be a trespass for a plane to fly over P’s

property. However, today most courts find liability only if: (1) the plane

enters into the immediate reaches of the airspace (below federally

prescribed minimum flight altitudes); and (2) the flight substantially

interferes with P’s use and enjoyment of his land (e.g. by causing undue

noise, vibrations, pollution).

Rule of Law: A trespass to the land occurs when bullets or other foreign particles violate

the airspace above the land. The interests of the land extend to bullets traveling over land,

but not landing upon it. The modern approach would consider this a nuisance.



2. What about under the land? (Note 9)

a. Whatever is in direct line btwn the land and the

center of the earth belongs to the owner of the

surface. P.69 CB

vi. Rogers v. Board of Road Com’rs for Kent County (When D

failed to remove an anchor post of snow fence and decedent was

thrown to the ground causing fatal injuries while driving his

mower, striking the post.) (The complaints were TP and

negligence)

vii. The privilege that the gov’t had to enter the land of the D ended

when the K ended and the post which remained on the land was a

tp to the land w/o privilege.

Rule of Law: Subsequent to the expiration of a license to enter land, any injury due to

the continued presence of that object, regardless of the fact that negligence was not a

cause of the injury, is a trespass. A trespass that occurred only when the owner withdrew

his invitation is actionable.

1. Possessor has the right to revoke an invitation for any

reason. (Note 3) With the exception of civil rights acts

(Note 5).

Rule: Damages need not be foreseeable to constitute a tp claim. (note 4c)

Although: cases where a pebble was accidentally knocked onto P’s

property or a run-away car went onto P’s property doing damage, D not

liable. (p. 15, note 1)



7) Trespass to Chattel



Definition of trespass to chattels: ―Trespass to chattels‖ is defined as any intentional

interference with a person’s use or possession of a chattel. D only has to pay damages,

not the full value of the property (as in conversion, below).

i. Glidden v. Szybiak (where a 4 yr. Old girl was playing w/ a dog

on a neighbor’s porch and received a dog bite)

1. The P sues under a statute claiming that one is entitled to

recover damages from a dog owner if injured by their dog

UNLESS engaged in TP or other tort at the time. (the dog

was not injured in this case).

2. There must be damage or deprive the owner of the use of

the chattel for a substantial amount of time.

Rule of Law: 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.

See: CompuServe Inc. v. Cyber Promotions, Inc. (Where D sent spam mail

over P’s server – was the use of the server tp to chattel?) What is the damage in

this case? Smith thinks that a better argument would have been intentional

interference of Economic actions.



8) Conversion

i. Tort of trover – established by alleging that someone took/found an

item of yours and converted it to their own use. Damages that are

recoverable. Damages are the value of the item on the day of the

conversion (a forced sale of the item)



Def of Conversion: Restatement -- An intentional exercise of dominion or control over a

chattel which so seriously interferes w/ the right of another to con troll it that the actor

may justly be required to pay the other the full value of the chattel.



ii. Pearson v. Dodd (Former Ees of Sen. Dodd Copied files and

replaced them in the cabinets. D published articles based on

material. Dodd was not dispossessed of the items b/c they were

returned and remained in Dodd’s possession.)

1. Holding was that the P was not deprived of the use or

control of the items. No claim of Conversion. (Smith thinks

the case is troublesome.)



Restatement §222a makes it clear that motive may make a difference. Intention is

looked at in these cases.



III. PRIVILEGES

REASONABLE is the watchword of privilege defenses.

 Privilege is a consideration which avoids liability where it might otherwise follow.

 Compare privilege and immunity. A privilege exists when D acts from a justifiable

motive while there is immunity means you do not even look at motive.

 Privilege only exists in intentional torts; negligent torts deal with assumption of risk

to exculpate the defendant.



A. MISTAKE

1. If the defendant entertained the intent necessary for the particular tort,

such as trespass to land, battery or false imprisonment, mistake will be no

excuse ordinarily, that he/she was mistaken as to something justifying

his/her conduct.



2. If the defendant’s motive or purpose is that of self-defense or defense of

another, then even though he/she may be acting under an erroneous belief

as to the necessity for the exercise of this defense, he may be justified.



1) Consent

1. Express Consent: If P expressly consents to an intentional interference with his

person or property, D will not be liable for that interference. Consent negates the

existence of a tort completely. The act is no longer wrongful if it is consented to.

2. Implied Consent: Existence of consent may also be implied from P’s conduct, from

custom, or from the circumstances.

a. Objective manifestation: It is the objective manifestations by

P that count—if it reasonably seemed to one in D’s position that P

consented, consent exists regardless of P’s subjective state of

mind.

3. Lack of capacity: Consent will be invalidated if P is

incapable of giving that consent, because she is a child, intoxicated,

unconscious, etc.

a. Consent as a matter of law: But even if P is incapable of

truly giving consent, consent will be implied ―as a matter of law‖ if

these factors exist: (1) P is unable to give consent; (2) immediate

action is necessary to save P’s life or health; (3) there is no

indication that P would not consent if able; and (4) a reasonable

person would consent in the circumstances.

4. Exceeding scope: Even if P does consent to an invasion of

her interests, D will not be privileged if he goes substantially beyond the

scope of that consent.

a. Emergency: However, in the surgery case, an emergency may

justify extending the surgery beyond that consented to.

b. Consent to operate on the right ear is not necessarily consent

to operate on the left, and a patient who agrees to a minor

operation on his nose does not thereby consent to a spinal tap.

5. Consent to criminal acts: Where D’s act against P is a criminal act, courts are split.

The majority rule is that P’s consent is ineffective if the act consented to is a crime.

6. Consent can be done by agent if that agent has:

a. The legal right to do so and

b. Authority extends to include the act consented to, while

c. The court should not be involved in the decision.

(e.g. Parents have the legal right to consent to actions for their

children, however, their authority does not extend to denying them

medical treatment to save their life.)

7. Consent is not present when made under duress, or if D is

responsible for P’s mistaken belief as to what actually will occur, or if

there is fraud.

8. Consent to emergency medical care has requirements:

a. Patient must be unconscious or without capacity and no one who

has the legal right to consent is present;

b. Time must be of the essence

c. A reasonable person and plaintiff would probably consent.



i. O’Brian v. Cunard S.S. Co. (Where P was vaccinated against her

will on a ship and got a bad reaction to the vaccine. She did not

voice opposition at the time and it was for her benefit)

1. When consent is in doubt, the circumstances can tell us

whether the conduct of the P constitutes consent.

2. For a touching that could be deemed harmful and which

causes a harmful reaction, the D cannot be deemed liable

when there is consent.

3. Consent is not a defense to neg.

Hypo: What about school children receiving vaccination? Can one opt out of

consenting?

ii. Hackbart v. Cincinnati Bengals, Inc. (During the course of a

professional football game, the D Stepped forward and struck a

blow w/ his right forearm to the back of the kneeling P’s head

causing both men to fall to the ground. This act is one which is

prohibited by the official rules of the game. This occurrence was

not seen or called by the refs and could therefore not be clearly

stated as a violation of the rules of the game.)

1. Tct said that by playing this dangerous game, you are

consenting to these acts. Assumption of Risk

- If rules are developed to protect the safety of the players –

and those rules are violated, the D can be liable, but not of

violations of rules of mere decorum or gameplay.

a. In the case of the child who’s shin got infected, the

judge said that if it happened on the playground,

then there would have been a different result than if

it happened in the classroom.

iii. Mohr v. Williams (P consented to an operation in her right ear, D

operated on her left ear.)

Rule: If a person should be injured to the extent of rendering him unconscious, and his

injuries were of such a nature as to require prompt surgical attention, a physician called to

attend him would be justified in applying such medical or surgical treatment as might

reasonably be necessary for the preservation of his life or limb, and consent on the part of

the injured person would be implied. P.92



1. If the act was beneficial and was performed in good faith, it

does not excuse liability, but would be factored into the

damages awarded.

2. If a conscious adult refuses treatment, the doc. cannot

operate unless the patient is not of sound mind.

3. In most cases, consent of a parent is necessary before

treating a child.

Hypo: What if the parents refuse treatment which is necessary to the child?



iv. De May v. Roberts (Doctor brought his friend to help deliver a

baby and didn’t tell the P that he was not a physician)

1. Consent granted based on false beliefs is not consent.

2. Must be informed consent to patients

a. Note 6: A physician must inform the patient of

known risks associated w/ treatment. Early cases

treated these cases as a battery, now handled as neg.

(Beginning 1960)

v. Hart v. Geysel (The parties engaged in a prizefight during which

the decedent received a fatal blow. Prizefighting is illegal.)

1. Typically, consent to an act negates liability for harm done

as a result of that act.

2. One who is engaged in an illegal act should not collect for

liability.

2) Self-Defense

1. Privilege Generally: A person is entitled to use reasonable force to prevent any

threatened harmful or offensive bodily contact, and any threatened confinement or

imprisonment.



2. Apparent necessity: Self-defense may be used not only where there is a real threat of

harm, but also where D reasonably believes that there is one. Mistake may be

acceptable in these cases.



3. Only for protection: The defense of self-defense applies only where D uses the force

needed to protect himself against harm.

a. Retaliation: Thus D may not use any degree of force in retaliation for

a tort already committed. (Example: P hits D with a snowball. Ten

minutes later, D hits P with a snowball, in retaliation. D has

committed battery on P, because D’s act was not done in true self-

defense.)

b. Imminence: D may not use force to avoid harm which is not

imminent, unless it reasonably appears that there will not be a later

chance to prevent the danger.



4. Degree of Force: Only the degree of force necessary to

prevent the threatened harm may be used. If D uses more force than

necessary, he will be liable for damage caused by the excess.



a. Deadly force: Special rules limit the use of deadly force, i.e., force

intended or likely to cause death or serious bodily injury.

i. Danger must be serious: D may not use deadly force unless he himself is in

danger of death or serious bodily harm.

5. Retreat: Courts are split on whether and when D has a ―duty to retreat‖ (i.e. to run

away or withdraw) if the threatened harm could be avoided this way.



a. Restatement view: The 2nd Restatement holds that: (1) D may use

non-deadly force rather than retreating; but (2) D may not use deadly

force in lieu of retreating, except if attacked in his dwelling by one

who does not reside in the dwelling.



3) Defense of Others

i. General Rule: A person may use reasonable force to defend

another person against attack. The same rules apply as in self-

defense; the defender may only use reasonable force, and may not

use deadly force to repel a non-deadly attack.

1. Reasonable mistake: The Courts are split on the effect of a

reasonable mistake. Older courts hold that the intervener

―steps into the shoes‖ of the person aided, and thus bears

the risk of a mistake. But Rest.2d gives a ―reasonable

mistake‖ defense to the intervener.



4) Defense of Property

1. General rule: A person may generally use reasonable force to defend her property,

both land and chattels.

a. Warning required first: The owner must first make a verbal demand that the

intruder stop, unless it reasonably appears that violence or harm will occur

immediately, or that the request to stop will be useless.



2. Mistake: The effect of a reasonable mistake by D varies:

a. Mistake as to danger: If D’s mistake is about whether force is necessary, D

is protected by a reasonable mistake.

b. Privilege: But if the owner’s mistake is about whether the intruder has a right

to be there, the owner’s use of force will not be privileged.



3. Deadly force: There is no privilege to use any force calculated to

cause death or serious bodily injury to repel the threat to land or chattles, unless:

there is also such a threat to the defendant’s personal safety. An element of

immediate personal danger must be present.

a. Escalation of a situation allows one to escalate accordingly the amount of

force he/she may use with privilege.

b. Burglary: But a homeowner is generally allowed to use force against a

burglar, provided that she reasonably believes that nothing short of this deadly

force will safely keep the burglar out.

a. Spring guns and other man-killing devices are not justifiable against a

mere trespasser or even a petty thief.

b. Courts will not forgive an impersonal mistake.

i. Katko v. Briney (D set up a spring gun to stop Tpers on his land

when he was not there)

1. Mechanical devices: Property is never equal to value of

life. Some states permit force if you are trying to repel a

burglar or a violent intruder.

a. Restatement §79. Mechanical Device: May be

used if you could personally use it to inflict serious

bodily harm or death if intruder threatens life and

limbs of occupiers. (Self-Defense or Defense of

Others, but not defense of property.



5) Recovery of Property

1. Generally: A property owner has the general right to use reasonable force to regain

possession of chattels taken from her by someone else. One must demand the

property back before using force, and if such a demand is rebuffed then one can use

necessary force. Any excessive force is actionable, unless it was in response to the

wrongdoer’s force (applying the ―escalation rule‖).



a. Fresh pursuit: The privilege exists only if the property owner is in

―fresh pursuit‖ to recover his property. That is, the owner must act

without unreasonably delay.

b. Reasonable force: The force used must be reasonable, and deadly

force can never be used. There is less tolerance for the use of harmful

force when dealing w/ the recovery of chattel.

c. Wrongful taking: The privilege exists only if the property was taken

wrongfully from the owner. If the owner parts willingly with

possession, and an event then occurs which gives him the right to

repossess, he generally will not be able to use force to regain it.



2. Merchant: Where a merchant reasonably believes that a person is

stealing his property, many courts give the merchant privilege to

temporarily detain the person for investigation.

a. Limited time: The detention must be limited to a short time,

generally 10-15 minutes or less, just long enough to determine

whether the person has really shoplifted or not. Then, the police

must be called (the merchant may not purport to arrest the suspect

himself).



i. Hodgeden v. Hubbard (Merchant tried to recover a stove by force

from a customer who misrepresented his credit rating)

ii. Bonkowski v. Arlan’s Department Store

1. Most believe that the privilege of the shopkeeper is useless

w/o also the privilege of some basic force.

You generally cannot physically force someone off of your real property

6) Necessity

1. General rule: Under the defense of ―necessity,‖ D has a privilege to harm the

property interest of P where this is necessary in order to prevent great harm to third

persons or to the defendant herself.



2. Public necessity: If interference with the land or chattels of another is necessary to

prevent a disaster to the community or to many people, the privilege is that of ―public

necessity.‖ Here, no compensation has to be paid by the person doing the damage.

i. Surocco v. Geary (Geary blew up buildings owned by Surocco in

order to prevent the fire from spreading to the community.)

Rule of Law: The law recognizes a privilege to damage property to avert threatened

disaster when necessary in exigent circumstances.



1. Privilege of Public Necessity case.

2. If the mayor had made a mistake, would he be held liable?

a. Reasonableness might make him not liable.

ii. Vincent v. Lake Erie Transp. Co. (D kept that ship tied to a dock

belonging to P during a violent storm causing damage to the dock.)

1. Private Necessity

Rule of Law: Private necessity of avoiding destruction or damage to one’s property gives

rise to a privilege is limited to entry and compensation must be made for any damage

resulting from it. Forgiven for TP but responsible for damage incurred.



7) Authority of Law

i. Descressionary

ii. Administririal

iii.

8) Discipline

i. Privileges of parents.

1. Parent can exercise reasonable corporal punishment.

―Family immunity‖ on the wane. There are exceptions for

severe discipline.

2. Not unconstitutional for teachers to administer reasonable

corporal punishment for disciplinary purposes.

9) Justification

i. Sindle v. New York City Transit Authority

IV. NEGLIGENCE

1) Standard of Care

i. Reasonable and Prudent Person

ii. Professional

iii. Aggravated Negligence

2) Rules of Law

3) Violation of Statute

i. Applicability of Statute

ii. Effect of Statute

4) Proof of Negligence

i. 2 main elements:

1. D or an ee of the D directly committed the act OR

2. D had actual notice and could have prevented the act.

ii. Evidence

1. Kinds of Evidence

a. Testimonials

b. Real Evidence

i. i.e.banana peal, torn tire, etc.

c. Demonstrative Evidence

i. Photos, diagrams, models, etc.

d. Writings

2. 2 main categories of evidence

a. Direct

b. Circumstantial

i. Allows a fact finder to infer from the facts.

ii. Burden of Proof is on P.



Question: Re-read Brown v. Kendall to see how the case might have been decided by

directed verdict.

iii. Court and Jury: Circumstantial

Mixed question of law and fact- court decides questions of law, and jury decides

questions of fact

1) The Sufficiency of the Evidence to Permit a Finding of the Facts

 Before duty/ standard of conduct may be set, must be proof of facts

which give rise to it; once the standard is fixed, must be proof that the

actor has departed from it.

 If evidence is such that no reasonably intelligent person would

accept it as sufficient to establish the existence of a fact essential to

negligence, it becomes the duty of the court to remove the issue from

the jury, and to nonsuit , or to direct a verdict for , or set aside a

verdict once rendered.

2) The Weight of the Evidence as Establishing the Facts

 Jury decides the probative value of the evidence and conclusions to

be drawn from it

3) The Existence of a Duty

 Whether the interest of  which has suffered invasion was entitled to

legal protection at the hands of . Question of law, to be determined

by the court.

4) The General Standard of Conduct

 In negligence cases, once a duty is found, the duty always requires

the same standard of conduct as a reasonable person under the same or

similar circumstances, except where statutory/ common law

modifications have recognized ―degrees‖ of care, and higher/ lower

standards. Matter of law to be applied by court.

5) The Particular Standard of Conduct

 What reasonable person would have done under the circumstances,

to be determined in doubtful cases by the jury.

1. Goddard v. Boston & Maine R.R. Co. ( fell on a banana

peel in a railroad station.)

a. no testimony as to the color or composition of the

banana, since it is unknown how long it had been

there, the D may not have had advance warning to

rectify the hazard – no liability.

b. If Proof that an ee dropped the peal or that the ee

saw it and did not pick it up – liable.

c. Carrier might have been held to the highest degree

of care.

2. Anjou v. Boston Elevated Railway Co. (P slips on a

banana peel left on the railroad platform.)

a. No testimony as to how long Peel had been there

BUT

b. Testimony as to color and condition of the peel

which suggested that the peel had not been freshly

dropped and that D should have had ample warning.

i. Showed a lack of due care.

3. Joye v. Great Atlantic and Pacific Tea Co. (P slipped and

fell in D’s A&P supermarket)

a. Supermarket customers are ―invited‖ guests and are

guaranteed, at least, due care.

b. ct states that it cannot determine how long the peel

had been there  no liability (Smith disagrees and

believes that, since supermarkets don’t tend to sell

rotten bananas, it can be inferred that the banana

had been there a while  liable)

4. Jasko v. F.W. Woolworth Co. (P slipped on a slice of

Pizza in D’s Woolworth)

a. Despite the fact that P could not prove that it was

not on the floor long enough for  to have been put

on actual or constructive notice, found that D

followed a dangerous practice and should have

known that something like this COULD happen 

liable.

b. very close to a STRICT LIABILITY case. No need

for notice.

c. Burden of proof on the one most likely to win the

case – party asking for relief has the burden of

proving need for relief.

d. This case uses Circumstantial Evidence.

iv. Res Ipsa Loquitor

―The thing speaks for itself‖

(ii) Allows  to point to the fact of the accident, and to create an inference

that, even without a precise showing of how  behaved,  was

probably negligent

(iii) Must be evidence from which reasonable persons may conclude that it

is more likely that the event was caused by negligence than that it

was not.



Four requirements:

1. No direct evidence of ’s conduct

2. Seldom occurring without negligence

3. Exclusive control of 

4. Not due to 

5. Evidence more available to  (some courts)



- Inference that Negligence was ’s

 Never enough for  to prove injury by the negligence of someone unidentified.

Purpose is to link  with probability, already established, that the accident was

negligently caused.

  has burden of proof on preponderance of evidence.

 Injury must be traced to specific instrumentality or cause for which  was

responsible, or it must be shown that  was responsible for all reasonably

probable causes to which the accident could be attributed.

  must be in exclusive control of instrumentality causing accident



- Multiple s

 Unless vicarious liability or shared control, logical rule applied is that  does

not make out a preponderant case against either of two defendants by showing

merely that  has been injured by negligence of one or the other.

Ybarra v. Spangard- decision based on special responsibility for ’s safety

undertaken by everyone concerned

 not applied against multiple s, where inferable that only one has been

negligent.



- Eliminating the Plaintiff

  is rarely static, and not necessary that  be inactive, but merely that there be

evidence removing the inference of ’s own responsibility.

 Should not preclude application where ’s probable negligence consisted in a

failure to protect  from hurting himself.

 advent of comparative fault should eliminate this element from the doctrine,

unless ’s negligence would appear to be sole proximate cause of the event.

 Comparative fault converts ’s contributing fault from traditional function of

barring liability into one of merely reducing damages.



- Evidence More Accessible to Defendant

 RIL cannot be applied unless evidence of true explanation of the accident is

more accessible to D than to P.



- Breach of Defendant’s Duty

  has not exercised reasonable care, and is no proof that he had duty to do so.



Res Ipsa Loquitur- Procedural Effect

Usually, effect of res ipsa is to permit an inference that  was negligent, even

though there is no direct evidence of negligence. Thus allows a particular kind of

circumstantial evidence. When res ipsa used,  has met his burden of production,

and thus entitled to go to the jury.

―Where there is no direct evidence to show cause of injury, and the circumstantial

evidence indicates that the negligence of  is the most plausible explanation for

the injury, the doctrine applies.‖



Specific Evidence Introduced by 

 Where facts are disclosed by evidence there is no room for inference, or by

attempting specific proof,  has waived the benefit of the doctrine.



Pleading Specific Negligence

 Four positions of court:

  by specific allegations has waived or lost his right to rely on the

doctrine

  may take advantage if inference of negligence to be drawn is

consistent with the specific allegations

 it may be applied only if the specific pleading is accompanied by a

general allegation of negligence

 it is available without regard to the form of the pleading



Effect of Rebutting Evidence

General evidence of due care: If ’s rebuttal is merely in the form of evidence

showing that he was in fact careful, this will almost never be enough to give  a

directed verdict.

Rebuttal of res ipsa requirements: if ’s evidence directly disproves one of the

requirements for the doctrine’s application, then  will get a directed verdict (on

prima facie case)

1. Byrne v. Boadle (While walking past the D’s shop, a bag

of flour fell upon P’s head.)

Rule of Law: When it is highly probable that an injury is due to the negligence of , and

the  had better access to the evidence concerning the injury, the doctrine of res ipsa

loquitur creates an inference that  was negligent, and puts the burden on  to introduce

contrary evidence.

a. If P’s conduct contributed  contributory neg..

 no recovery

b. When D is a common Carrier, Burden of proof

shifts to rest upon them (notes 4&5)

2. McDougald v. Perry (Car driving behind Truck on

highway, truck ran over RR tracks and the spare tire came

out of its cradle and smashed into the windshield of the

car.)

a. Inference that the act is neg.  liability

i. The act could only have happened b/c of

neg. by D. Restatement §328

Hypo: Airplane cases – weather is clear, there was a mechanical check of the plane, a

crash – Res Ipsa Loquitor?

3. Larson v. St. Francis Hotel (P was walking on the

sidewalk by the hotel and was struck on the head by a

falling chair.)

a. D did not have exclusive control over the chair in

this case  not liable.

b. Something about this case bothers Smith

i. D has more control over the evidence in this

case.

ii. D could have used preventative measures

4. Ybarra v. Spangard (P went to hospital for operation,

ened up w/ a paralyzed arm)

a. Many Ds – Trying to impose Liability en mass.

b. 2 conditions

i. not due to P’s voluntary actions

ii. accident must be one which does not

ordinarily occur unless someone was neg.

V. CAUSATION IN FACT

1) Sine Qua Non

i. P must establish a prima facie case, ―more probable than not‖

There must be some reasonable connection between the act / omission of  and the

damage  has suffered. ―legal cause‖

Merely the limitation which the courts have placed on the actor’s responsibility for the

consequences of the actor’s conduct.

Often legal limitation on the scope of liability is associated with policy



1. Causation as Fact

 The classic test for determining cause in fact directs the fact finder to compare what

did occur with what would have occurred if hypothetical, contrary–to-fact conditions

had existed.

 Cause in fact embraces all things which have so far contributed to the result that

without them it would not have occurred.

 P must show that ’s conduct was the cause in fact of ’s injury.



2. The But-For Rule

- Sine qua non/ But for test: The defendant’s act or an omission is not

regarded as a cause of an event if the particular event would have

occurred without it. ’s conduct is a cause of an event if the event

would not have occurred ―but for‖ that conduct.

- Vast majority of the time, the way  shows cause in fact is to show

that ’s conduct was a ―but for‖ cause of ’s injuries- had  not acted

negligently, ’s injuries would not have resulted.

- Joint tortfeasors: There can be multiple ―but for‖ causes of an event,

D1 cannot defend on the grounds that D2 was a ―but for‖ cause of P’s

injuries—as long as D1 was also a ―but for‖ cause, D1 is viewed as the

―cause in fact.‖



B. Proof of Causation

 In general,  has the burden of proof.



Perkins v. Texas and New Orleans Ry. Co.

Facts: A locomotive traveling at an excessive speed was involved in an accident

that would have occurred even if the train had not been speeding.

Rule of Law: Negligence will not give rise to liability if the injury would have

happened even if the negligence had not occurred.



Reynolds v. Texas & Pac. Ry. Co.

Facts: , who was very fat, fell down unlit stairs at a train depot owned by .

Rule of Law: 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 and the injury.



Kramer Service, Inc. v. Wilkins

Facts:  cut his forehead on a piece of glass which fell from a broken transom

when he opened the door in ’s hotel. Two years later,  discovered that skin

cancer had developed at the point of the glass injury.

Rule of Law: One cannot recover for an injury if he shows just a possibility that

the injury was caused by another’s negligence.



Wilder v. Eberhart

Facts: , a doctor being sued for malpractice, was not allowed to introduce expert

testimony that there were other possible causes for ’s injuries because the expert

conceded that his opinion could not be expressed in terms of probability.

Rule of Law: ’s expert witness may render an opinion regarding possible

causation.



Herskovits v. Group Health Cooperative of Puget Sound

Facts: The negligence of  caused a reduction in the chances of survival in

a patient whose chances of survival were already less than 50%.

Rule of Law:  need not demonstrate that a decedent probably would have

survived but for medical malpractice to state a cause of action for such

malpractice.



Dabert v. merrell Dow Pharmaceuticals, Inc.

Facts:  was not allowed to present expert testimony about studies that

showed a drug manufactured by  caused birth defects because the studies

had not been verified by the scientific community.

Rule of Law: An expert theory on causation need not be generally accepted

as reliable in the relevant scientific community in order to be admissible.

ii.

2) Proof of Causation

Wilder



Does burden of proof shift to D?



Jury must still find whether D was neg.



Granted motion in lemminy



There were other possible causes other than the movement of the stomach



Possibilities are enough and in this case the possibility offered is the least likely.



Herskovits



That the doctor misdiagnosed lung cancer is a stipulation in this case.



Even if the cancer was diagnosed in the beginning, his chance of survival was 39%.

Kramer says that causation must show that the cause of death must be, more probably

than not, the result of the neg.



Damages

Additional med bills due to delayed diagnosis

Shortened life b/c of late diagnosis



Other approach to damages

Reduced chance of survival 14% -- Damages are 14% of what damages would have been

for a misdiagnosis.



Some JDs follow this and some don’t.



Daubert

Frye – S.Ct’s describing when an expert witness is qualified to testify in a Fed. Case.

Question as to whether expert witnesses can be given an equivalent to a lie detector test

(they could not). (1923)



Follows the S. Ct’s decision in which the Frye case was overturned.



No prior studies or articles had proven P’s case. P’s experts used animal studies and re-

interpreted past studies and articles.



Rule 702 Fed. Rules of evidence: S.Ct. said that this rule supplanted the Frye standard.

Frye became one of 5 standards.



Evidence that can be or has been replicated, tested, generally accepted in the med.

Community.



What substantive law applies? CA’s law of causation.



Approaches:

1) Was it foreseeable?

2) Direct Consequences test:

a. Christiansen Case (see p. 296): This test Once neg. can be established, D

is responsible for all results that occur so long as nothing else interferes

and that the damage is the result solely of the liability.

i.

3) Concurrent Causes

4) Problems in Determining Which Party Caused Harm

VI. PROXIMATE OR LEGAL CAUSE



Must look at Neg. before we can ever get to proximate cause. If there was a duty of the

D to the P. Claim for personal injury.



Questions of Prox. Cause are USUALLY questions for the jury, unless the incident is

highly extraordinary.



Relation to Duty

 Was  under a duty to protect  against the event which did in fact occur?

 Duty may serve to direct attention to the policy issues which determine the

extent of the original obligation and of its continuance, rather than to the

mechanical sequence of events which make up causation in fact.

 Is the conduct the proximate cause of the action

 No duty cases: causal connection between the act and the harm is usually clear

and direct, and the attempt to subdivide the indivisible by way of proximate often

proves to be an obstacle to the determination of the real issue.

 duty has been confined to questions of the existence of some relation between 

and  which gives rise to the obligation of conduct in the first instance, and to

deal with the connection between that obligation and the proximate consequences.

Confusion with Standard of Conduct

 Standard of Reasonable Conduct does not require  to recognize the risk, or to

take precautions against it.



Confusion with Defenses to Negligence Action

 in ordinary contributory negligence, causal connection clear, and no doubt that

both parties have played an important part in bringing about the result

 underscored when rule that contributory negligence is a complete bar is replaced

by a comparative negligence rule; becomes an anomaly to use the proximate

cause requirement as a basis for denying even partial damages

 Proximate cause has been an extraordinarily changeable concept of chameleon

quality



Proposed Formulae

1. Nearest Cause

2. Last Human Wrongdoer

3. Cause and Condition

4. Substantial Factor Test

5. Justly Attachable Cause

6. Systems of Rules



Problems Involved

Approaching proximate cause as a series of problems:

1. Problem of causation in fact: what part has ’s conduct played in

bringing about the result?

2. Problem of apportionment of damages

3. Problem of liability for unforeseeable consequences: to what extent

should  be liable for results which  could not reasonably have

been expected to foresee?

4. Problem of intervening causes: should  be relieved of liability by

some new cause of external origin coming into operation at a time

subsequent to ’s conduct; is new cause treated as superseding ’s

responsibility?

5. Problem of shifting responsibility: is there another person to whom

 was free to leave the duty of protecting ?



1) Unforeseeable Consequences

RULE: One is liable for the consequences of ones acts and thus liable for damages

resulting as a proximate cause of those acts, but NOT for remote damages. Often

difficult to determine proximate v. remote damages.



RULE: Consequences which follow in an unbroken sequence, without an intervening

efficient cause, from the original negligent act are natural and proximate.



Limitation of Liability to Risk

A. Pollock : same criterion of foreseeability and risk of harm which

determined whether  negligent in the first instance should

determine the extent of the liability for that negligence; no  should

ever be held liable for consequences which no reasonable person

would expect to follow from the conduct

 Natural and probable consequences

 Time and Space

 The Same Hazard



B. Limitation on Requirement of Foreseeability: The way in which

the event occurs need not be foreseeable, so long as the event itself is

to be anticipated.



C. Keeton: Liable only for results which are connected to risk that you

created. Anticipated ―foreseeability‖ test. Must be foreseeable when

you act.

1. What a reasonable person would determine as being the risks.

2. What were the bundle of risks created at the moment of

negligence? (example: What are the risks when you place a can

of poison on a shelf?)

3. Who is to be protected and from what harm?



D. Restatement §435(2): Defendant is not liable for consequences

which, looking backward after the event with full knowledge of all that has

occurred would appear to be ―highly extraordinary.‖

i. Ryan v. New York Central R.R. Co. (Where a RR engine sets a

woodshed on fire, thereby causing the house near the woodshed

and many other houses to catch fire.)

1. First house rule: the first house is the only one that can

claim damages for a fire set. In this case, the D’s house

was the first one to catch fire. The P can, therefore, cannot

recover damages from the D. (Policy based rule, concerned

about insurance regulations, growing cities and railroads)

(Diff result in diff. JD)

a. Similar to the insurable interest rule – One can only

purchase insurance if they have an interest, there

could be intentional damages done to claim

insurance. (One cannot take out insurance on

another’s home)

ii. Bartolone v. Jeckovick (P was involved in a 5 car accident which

aggravated a pre-existing paranoid schizophrenic condition which

has totally and permanently disabled him. Proud of his physique,

due to injuries, can’t work-out.)

1. case of unforseeability – Intervening event

2. RULE: When you cause harm due to your neg. you are

responsible for all the injuries that occur as a result of your

neg.

a. pre-existing factors may be a consideration for

damages awarded, but have no effect in determining

liability.

iii. In re Arbitration Between Polemis and Furness, Withy & Co.,

Ltd. (While the ship was being unloaded it was destroyed by fire

when a servant negligently dropped a plank setting off a spark in

the hold which exploded vapor seeping from the cargo of petrol

and benzyne.)

1. RULE: 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.

a. If all intervening features are in the control of the D,

then D can be held liable b/c the intervening fetures

could have been controlled and prevented or

anticipated.

iv. Wagon Mound No. 1 (’s wharf was seriously damaged when oil

negligently discharged from ’s ship, spread across the water and

later caught fire when molten metal dropped by ’s workmen

ignited cotton waste floating on the surface.)

1. RULE: Even though injury may result from a negligent

act, liability for that injury is limited to the risk reasonably

known to be foreseen.

a. Should  be liable for all damage directly resulting

from his negligent act? No

b. From Polemis: Do not go for direct consequences-

was the harm foreseeable?

v. Wagon Mound No. 2 (Similar to above)

1. Gravity, probability and burden test.

a. reasonable people in the position of officers would

consider the furnace oil very difficult to ignite;

b. their personal experience would be that this

probably occurred rarely;

c. risk of fire would have been regarded as a

possibility but occurred only in exceptional

circumstances;

d. the chances of a fire would be considered remote;

e. damage to ’s ships would not be reasonably

foreseeable, and, accordingly, damages could not be

awarded.

2. If you can anticipate the risk of fire, than you must reduce

the risk when possible and economically feasible.

vi. Palsgraf v. Long Island R.R. Co. (Question of Proximate cause

when a woman is hit by falling scales when a box, unknowingly

containing fireworks, is dropped by the conductor.

1. “unforeseen P case”, Duty case v. Proximate Cause case

2. Cardozo: P was outside of the zone of danger/orbit of risk;

Plaintiff must establish that there was a breach of duty

owed to her and she must prove exposure to the risk in a

reasonable way.

3. Andrews: If you are negligent, you are negligent. The

negligence does not need to be directed towards a particular

individual. There is a general duty of care owed to the

society at large.

4. See note 9: exam-type question

5. §281 Restatement of Torts

6. This can be harmonized w/ polimis case

2) Intervening Causes



- Foreseeable rule generally: Most courts hold that  is liable, as a

general rule, only for those consequences of his negligence which

were reasonably foreseeable at the time she acted.



- Whether  to be held liable for an injury to which  has in fact made a

substantial contribution, when it is brought about by a later cause of

independent origin.



- Most proximate cause issues arise here ’s injury is precipitated by an

intervening cause. An intervening cause is a force which takes effect

after ’s negligence, and which contributes to that negligence in

producing ’s injury.



- Intervening cause: cause which, in a time sense, comes into active

operation in producing the result after the negligence of .



Foreseeable Intervening Causes

Often the risk of a particular kind of intervening cause is the very risk which

made ’s conduct negligent in the first place. Intervening cause will almost never

relieve  of liability.

If intervening cause is one in which ordinary human experience is

reasonably to be anticipated, or in which  has had reason to

anticipate,  may be negligent for failure to guard against it, or simply

for that reason.

 Intervening cause + ’s conduct to produce the result, and ’s

negligence = failure to protect  against that very risk.

 May include intervention of foreseeable negligence of other.

 Even though foreseeable,  not liable unless ’s conduct created or

increased an unreasonable risk of harm through its intervention.



Unforeseeable Results of Unforeseeable Causes

 If  can foresee neither any danger of direct injury, nor any risk from

an intervening cause,  simply not negligent. Question of negligence

 failure to anticipate that extraordinary/ unprecedented rainfall will

flood streets

 that pedestrian will slip and fall on an apparently safe highway.

 Acts of nature, animals, fall of an airplane, unpredictable behavior

of irresponsible persons or children.

 Superseding causes: reckless/ unusual driving of vehicles;

tampering with dangerous articles left unguarded; stampede of a

frightened crowd

Line drawn to terminate ’s responsibility, courts believe unfair to

hold  liable.



Foreseeable Results of Unforeseeable Causes

 Many cases have held the  liable where result which was to be

foreseen was brought about by causes unforeseeable

 loose pile of lumber knocked over by a stranger

 ladder left standing in the street blown over by an unforeseeable

wind

 obstruction in the highway with which a runaway horse collides

If the result is foreseeable, the manner in which it is brought about

need not be, and is immaterial.

Occasionally  should not be held liable

  excavates a hole in the sidewalk and  is pushed into is

deliberately by a stranger

 Difference is a matter of intangible factors, lies in conclusion of

courts as to whether responsibility is shifted.

 Dependent v. independent intervention: Courts sometimes

distinguish between dependent intervening causes and independent

ones. A dependent intervening cause is one which occurs only in

response to ’s negligence. An independent intervention is one

which would have occurred even had  not been negligent and an

independent intervention can be



Normal Intervening Causes

 Could not have been contemplated by reasonable person in the place

of  at the time of conduct, but which are nevertheless to be regarded

as normal incidents of the risks  has created.

 foreseeable in the sense that any event not abnormal may

reasonably be expected to occur now and then, and would be

recognized as not highly unlikely if it did suggest itself to the

actor’s mind.

 Normal intervening causes held not to supersede ’s liability.

Defensive acts will not relieve original wrongdoer of liability.

 Rescue Doctrine- efforts to protect the personal safety of another

have been held not to supersede the liability for the original negligence

which has endangered it

 The risk of rescue, if only it be not wanton, is born of the occasion.

The emergency begets the man. Thus independent duty of care

owed to the rescuer, even when  endangers no one’s safety but

’s own, even when time for thought.

 If defensive act unreasonable, may amount to contributory

negligence which may affect recovery by the actor, but will not

prevent ’s liability to a third person injured.



i. Yun v. Ford Motor Co. (While driving on the Parkway, the

plastic cover, spare tire and support bracket broke off P’s van. P’s

father, 65 yrs old, ran across parkway to retrieve the tire and was

killed as he was headed back to the van.)

1. Restatement Torts § 435(2): The actor’s conduct may be

held no to be a legal cause of harm to another where after

the event and looking back from the harm to the actor’s

neg. conduct, it appears to the ct highly extraordinary that it

should have brought about the harm.



Rule: A tortfeasor will be held responsible for his neg. conduct if it is a ―substantial

factor‖ in bringing about P’s injuries. Where, however, concurrent forces are involved,

the manufacturer of a defective product may negate strict liability upon a showing of an

intervening, superseding cause or the existence of another.





ii. Derdiarian v. Felix Contracting Corp. ( was severely injured

while working at an excavation site constructed by , when an

automobile driven by an epileptic, careened onto the site.)

1. Rule: An intervening act will not serve as a superseding

cause, relieving  of liability, where the risk of the

intervening act occurring is the very same risk which

rendered  negligent.

2. Intervening cause becomes the superseding cause when the

intervening cause cannot be foreseen

a. Restatement §442 When is an intervening act a

superseding act?

iii. Watson v. Kentuckey & Indiana Bridge & R.R. Co. (Through

’s negligence, a tank car of gasoline derailed and began leaking.

One Duerr struck a match causing the vapor to explode and injure

.)

1. If the fire was set unintentionally, then the result is

foreseeable and D is liable

2. If the fire was set intentionally or maliciously, the criminal

act is not foreseeable and D is not liable. (Ky ct may not

follow this today)

a. At one time, a criminal act automatically negated

neg. NOW, if we can expect some criminal

conduct, D may still be liable. Note 3

iv. Fuller v. Preis (’s decedent committed suicide, allegedly the

irresistible impulse of head injuries suffered in a car accident.)

1. As a matter of law, an act of suicide is not a superseding

cause in negligence precluding liability.

2. RULE: An initial tort-feasor many be liable for the

wrongful acts of a 3d party if foreseeable.

v. McCoy v. American Suzuki Motor Corp. (P attempts to aid a

man whose car turned over. After the incident, as he was returning

to his car, he was hit by a car.)

1. Rescuers are Foreseeable Plaintiffs

2. Rescue doctrine (see above) does away w/ the assumption

of risk.

a. Prof. Rescuers can’t avail themselves of the rescue

doctrine (also b/c they have workers comp and can

recover)

3. Even in a rescue case, P has to prove proximate cause.

4. Liability extends to all harm done as a result of the act if

the intervening causes are foreseeable.

a. E.g. If one in injured in a tort and taken to the

hospital and receives bad med. Care under

malpractice. Original tort-feaser is liable.

b. E.g. One is weakened in health b/c of a tort and b/c

they are weakened, and gets another illness (eg

pnamonia) and die of the 2d illness, Original tort-

feser is liable.

3) Public Policy

i. Kelly v. Gwinnell (D was at the home of a co-worker having a

couple of drinks and caused an accident while driving home. P

sued the Social Host for serving D knowing he was driving home.)

1. In most states, a social host cannot be held liable (that is

not how this ct rules)

2. Policy: drunk driving is such an egregious act that ct should

impose liability.



4) Shifting Responsibility

5)

5. Intentional Infliction Of Mental Distress







6. Trespass To Land



Is it an intentional tp to land when one goes onto the property of another, causing no

damage but, believed it to be his land. Mistake is not a defense. Similar to case of

shooting a fox v. dog.



Dougherty v. Stepp.



Note 6:



Don’t have to prove damages to recover

Mistake is not a Defense

Good Faith is not a defense



If one is driving a car which accidentally goes off the road and onto someone’s land.

Intentional? The P would only be liale of there are damages.



Bradley v. American Smelting and Refining Co.



Why is this case in a Fed. Dist. Ct? Diversity of citizenship.



Protecting the exclusive right of possession



Must show actual and substantial damage. I.e. get soil samples



Note 1: Is there a claim for affecting contractual relationship w/ other?





Herrin v. Sutherland



P wants a jt sayng that D is tping.

Is it sufficient that the item ―fly over the land.‖ or does the item need to lands on the

property directly.



Note 9:



Rogers v. Board of Road Com’rs for Kent County



The complaints were TP and negligence

In this jurisdiction, there is gov’t immunity in neg, but not in cases of intentional Torts.

Therefore, this case must be tried as a tort case and nor as a neg. case.



What was the intentional tort? The privilege that the gov’t had to enter the land of the D

ended when the K ended and the post which remained on the land was a tp to the land

w/o privilage.



The

See note 3: Yes, Note 5: Exceptions include civil rights acts



See Note 4 b,c



The statute quoted in the case notes exception for Tp. This could have been built in b/c

many people use dogs to protect their property.

If this is the case, is it appropriate to try this case based on tp to chattel?





See p. 15, note 1





Note 3: can you exclude people from your land? Yes

Note 5: exceptions to the above include civil rights statute.



Almost looks like strict liability, but is not.

(p. 15 note 1, Randall v. Shelton – Must be negligent and intentional)

Consequences for what we call liability.

We can explain treating this individual as being liable for personal injury by transferring

the intent of trespass to land to intent of personal Injury.



Note 4b,c:



Glidden v. Szybiak



P sues on a statute claiming



The statute claims unless engaged in TP. This may have been built into the statute to

protect people who keep dogs to protect property.



One must look at the full picture of the item and its use to know if a tp to chattel has

occurred.



CompuServe Inc. v. Cyber Promotions, Inc.



What is the damage in this case?

Smith thinks that a better argument would have been intentional interference of

Economic actions.



8. Conversion



A. Nature of the Tort



Tort of trover – established by alleging that someone took/found an item of yours and

converted it to their own use. Damages that are recoverable. Damages are the value of

the item on the day of the conversion (a forced sale of the item)



Pearson v. Dodd



Dodd was not dispossessed of the items b/c they were returned and remained in Dodd’s

possession.



Holding suggests no breech of privacy and no conversion. P could have looked to other

areas of torts – TP to land?



The case is troublesome.



§222a makes it clear that motive may make a difference. Intention is looked at in these

cases.



Mistake of fact is not a defense.



A person knowingly purchasing goods from a thief did not purchase in good-faith and

could be guilty of conversion.



Question as to whether one who tries to return the goods after conversion must pay value

if so requested by the orig. owner. In many cases, if the goods were gotten in good-faith

and there was no damage to the goods, one may be able to return the goods in lieu of

paying market value for them.



Damages: Fair market value at the time of theft.



The possessor of the goods has the cause of action.



One may FI one by taking goods of value which belong to them



Restatement 2d (Torts) §222A: What Constitutes Conversion? P.82



B. Effect of Good Faith

C. Necessity of Demand; Return of Chattel

D. Damages

E. What May be Converted

F. Who May Maintain the Action



VII. PRIVILEGES





10 Defenses to intentional torts

Consent

Standard defense

Defense of others

Defense of Property

Recapture of Property

Public necessity

Private necessity





Assumption of risk



1. Consent



O’Brian v. Cunard S.S. Co.



She sued for Battery and Negligence. Neg is nit discussed in this case, but the ct claims

no neg. b/c the neg. of the doctor does not carry over to the ship.



Was there consent in this case? Yes.

When consent is in doubt, the circumstances can tell us whether the conduct of the P

constitutes consent.



What if she didn’t want it, but didn’t express that. Does that change the result? No. The

doctor would not have been privy to her discontent and could only go by her words and

actions.

For a touching that could be deemed harmful and which causes a harmful reaction, the D

cannot be deemed liable when there is consent.



What about school children receiving vaccination? Can one opt out of consenting?



Note 1: No. Not a willing recipient.

Note 2: married, No. Date, ?. Stranger, Yes.



Hackbart v. Cincinnati Bengals, Inc.



This occurrence was not seen or called by the refs and could therefore not be clearly

stated as a violation of the rules of the game.



Tct said that by playing this dangerous game, you are consenting to these acts.

- In the case of the child who’s shin got infected, the judge said that if it happened on the

playground, then there would have been a different result than of ot happened in the

classroom.



If rules are developed to protect the safety of the players – and those rules are violated,

the D can be liable, but not of violations of rules of mere decorum or gameplay.



If one player is intentionally hit from behind is not injured, is there liability. Possible

nominal damages



If one player is hit in the normal course of the game, but incurs serious injury. No

liability.



Note 2: Softball injury. Liable? Was it intentionally done? If yes than liable, if no, not

liable. S.Ct states that it may be worth bringing the suit and in dicta states that we must

look at whether the injury/act was foreseeable.





Mohr v. Williams



What harm was done?

―this surgery was no mere pleasantry‖

An offensive touching.



The jt of this case could do harm to future patients b/c it requires 2 doses of anesthesia.



This case was beneficial and was performed in good faith, so while this does not excuse

liability, it is factored into the damages awarded.

A technical battery

Meets the criteria for a battery, but doesn’t cause harm.

P sues for battery. Appellate ct talks about A & B. Was there assault. Must be aware for

there to be assault.



What if an adult comes in and is dying and conscious, but refuses treatment can the

doctor operate? It would depend on the mental capacity and stability of the patient. If

they are deemed in good mind, they have the right to refuse treatment.



What if the patient says she only wants female health care workers and finds out when

she wakes up that a man worked on her. Hospital is liable.



Note 7: Thor case. A prisoner jumped off a wall and was paralyzed. Decided to refuse

food and the prison health care worker tried to get a tube inserted to force feed him.

Prisoner was deemed of sound mind and had the right to refuse food.



Is the consent of the parent necessary to give treatment to a child. Yes. W/ some

exceptions.

Note 13: Yes, but doctors will often get a ct order before performing the procedure just

to protect themselves.



What if the parents refuse treatment which is necessary to the child.



De May v. Roberts

Was there consent in this case?

When the doctor enters he house, he says that he brought along a friend to help carry his

things. The husband should have been able to ascertain from this statement that the man

was not a physician, but that was not the case here.



Was there assault and battery, or just battery, since the P was not apprehensive, believing

Scattergood to be a doctor.



Consent granted based on false beliefs is not consent.



Note 2: Consent to sexual intercourse is not consent to a sexually transmitted disease.

Last case in this note re: husband who has an affair.



Note 5

Note 6: A physician must inform the patient of known risks associated w/ treatment.

Early cases treated these cases as a battery, now handled as neg. (Beginning 1960)



Hart v. Geysel



Typically, consent to an act negates liability for harm done as a result of that act. Since

the conduct here is unlawful, can D be held liable? Ct states that they don’t believe one

who is engaged in an illegal act should collect for liability.



1. Self-Defense





Use of force which is necessary, and no more, is acceptable.



Here, we may forgive a mistake. If one believes that one is reaching for a weapon, but is

not, and the belief that they were reaching for a weapon was a reasonable belief, then the

mistake is forgiven.



Do you have to retreat? Some say yes, most say NO



Defense of others – you may go to the help of others, but if you go to the aid