DAG by tillie512



Tort Law is:

         >private law: protects interest of individuals versus public law (Crim law).

What do you have to have to have a tort?

         >Cause of action + harm

What can be a harm?

         >(emotional harm [iied], physical harm)

What is the duty-in general-in tort law?

         >Shouldn’t do something that falls below reasonable person’s standard.

                 *bring in reasonable person’s standard* into exams!

4 Justifications for tort law:

         >Corrective Justice: doing “justice”—need to be punished for moral reason. Punishing someone
         because they “deserve it.”

         >Strict liability: just doing action makes you liable, not your intent. (If you employ somebody and
         you employ lawnmower, housecleaner, etc. and one of them does something, employer is liable
         for action—even though not your fault, not corrective justice.) Why does strict liability not
         accomplish corrective justice purpose? *Serves compensation—compensating the victim. Not
         trying to accomplish justice- trying to COMPENSATE victim.

         >Deterrence: You did something wrong and law doesn’t want someone else to do same thing in
         the future. You get punitive damages so that it discourages (shaping conduct).

         >Process Values: you want to be able to know as a citizen if someone commits a tort against
         you, there’s a tort and a system in place (to prevent vigilante justice).

Everytime you get a tort law problem think about the above^ (what goals does it have?).


         A.      Holden v. Walmart:
                 a. Facts: lady had knee issues, fell in hole and had further knee issues. Jury found her
                    40% negligent and Walmart, 60% negligent (because a reasonable person would
                    have seen the hole in the ground).
                 b. Holden appealed because she wants more money. (what is point of tort law, what
                    are damages?): point is getting paid.
     c. PH: At the appellate level (on matters of fact), they uphold jury’s opinion of
        facts/damages/computations. Jury’s finding did not shock the conscience- so didn’t
     d. This case frames the entire process of torts “show me the money.” System wants
        justice; but, plaintiffs want money (damages awarded).

B.   Battery
     a. Intentional tort
               i. You meant to (desire) to cause certain immediate consequences.
     b. Rule for battery:
               i. Intentional act:
                       1. Intent can be transferred.
                       2. Sole intent:
                               a. Defendant must only intend the contact
                       3. Dual intent:
                               a. Defendant must intend to move and to intend to harm.
              ii. that results in a harmful or offensive touching
     c. Restatement of Torts (Battery):
     d. VanKamp v. McAfoos
               i. Facts: 3 year old on tricycle hit the back of a lady—injuring the Achilles
                  tendon of her leg. The plaintiff required surgery.
              ii. Is there a battery (look at rule):
                       1. No, no intent; although, harmful/offensive touching.
     e. Snyder v. Turk
               i. Facts: Snyder sued Turk for battery. PH: trial court sued in favor of doctor.
                  Why? Meant to touch her, but didn’t mean to cause her harm.
              ii. No intention-- Is it offensive to a reasonable person’s sense of dignity? [Yes],
                  is there harm? [yes]
     f. Cohen v. Smith
               i. Facts: Patricia Cohen having baby, needed section. Cohen told staff no male
                  was to observe or touch Cohen’s naked body. All staff should know. Male
                  nurse touched her naked body, despite her objection.
              ii. Rule: Battery Rule (Restatement of Torts Rule)—
             iii. New Take away: offensive contact occurred if offends reasonable sense of
                  personal dignity (unconsented to touching is always a battery).
             iv. All have right to refuse consent to touch body.
     g. Mullins v. Parkview Hospital
               i. Facts: Mullins crossed out portion of consent form allowing healthcare
                  learners during procedure.
       ii. Sole intent v. Dual intent: Student did not know consent had been withheld.
           Doctor did not inform the EMT.
      iii. If plaintiff consented, not a battery.
      iv. Liability and damages are two different questions. Liability- are you held
           liable. Damages- are you going to grant damages to plaintiff (just a $1 or
       v. Thin skull rule/eggshell defense: take the plaintiff as you find her. Ex: if
           plaintiff has blood disorder and bruises easily—and you push him down,
           you’re still on the hook even though you didn’t mean to cause internal
h. Garrett v. Dailey (IMPORTANT):
        i. Outlier case- not the norm! (Even though most states would probably
           decide X, Y, Z ---it could come out like outlier Garrett v. Dailey).
       ii. Never use absolutes: no clearly, no certainly, not WILL do this—“likely”,
           “probable that”, etc. These are the facts and likely, the law would…
      iii. Rule: “reasonably foreseeable result = battery”. GARRET RULE: Intent can be
           satisfied if substantial certainty that harmful contact might result.
      iv. If see exam question and think, I don’t know if it’s quite a battery? Then say
           most likely no because x, y, z; but, Garret rule says… “a, b, c” and there is
           substantial certainty… So, it’s possible that it might come out this way, too.
i. White v. Muniz
        i. Facts: dementia patient case. How do you apply rules when someone is
           crazy? Nurse went to change adult diaper, and White struck Muniz in jaw
           and injured her.
       ii. Colorado, had dual intent jurisdiction. If case would have been sole intent,
           could have gotten her. In dual intent, does she INTEND harm?
      iii. Sole intent v. dual intent: If one wills one arm to move, and it punches
           someone in the face, that’s enough for battery in sole intent jurisdiction. In
           dual intent jurisdiction, need to move arm and intend to hurt them.
      iv. New knowledge: mentally ill persons can be liable in dual intent jurisdictions
           as long as she intended harm, in some way. (Policy reason: so that people
           can’t claim that they have dementia to get out of things. We care about
           compensating the victim; don’t care as much about the mental state of
       v. Is this corrective justice? No. Compensation—to pay victim/strict liability.
j. Wagner v. State
        i. Facts: Wager attacked from behind by mentally handicapped person.
       ii. This is a sole intent jurisdiction (easier to recover cash).
                1. Dual intent can be problematic because of kissing rule—didn’t
                     intend harm in kissing stranger.
                2. Sole intent: intended to kiss me and by reasonable person’s
                     standard, it offended.
                k. Stoshack v. East Parish High School
                       i. New rule: Intent—intent can be transferred: if hit other person and not
                          person intended to hit, are still liable.
                l. Baska v. Scherzer:
                       i. Another transferred intent case. Enough that person intends to hit the other
                          person. Just because didn’t get guy you’re going for, doesn’t mean you’re
                          not still liable.


B. Elements of assault:

    (1) Intentional Act ---(ALWAYS bring up self defense as a defense—even if you don’t see it)
    (2) Placement of another in apprehension (victim has to know; doesn’t have to be scared)
    (3) Of an imminent, offensive contact.

How are damages measured? Mental harm (touching of the mind), (emotional/psychological harm).

You can have battery without assault (if you don’t see it coming) e.g., hitting someone with bat from

Ex: Cullison v. Medley

     Cherry coke, daughter, family goes over w gun and berates.
     Is it an assault? [Yes- intentional act, of placement of another person in apprehension of an
      imminent, offensive contact]. Where is the problem here? [Not an imminent danger, choice not
      to talk to danger]. Yes, assault—later events, cancel out immanency defense.

False Imprisonment:


    (1) Intentional Confinement
    (2) Within boundaries (no reasonable or safe element of exit-could be physical barrier or force,
    (3) Where victim is conscious of confinement, or harmed by it.

Ex: McCann v. Walmart

McCann and two children at Walmart told that they couldn’t leave. The kid wasn’t let out to bathroom,
family couldn’t leave until the cops came…. Doesn’t have to be ‘explicitly stated’ that you’re trapped.
Test is reasonable person test.
Plaintiffs won in this case, clear case for false imprisonment. *Important: don’t have to be trapped for it
to be false imprisonment; just have to feel like you don’t have way to escape (legal authority).


        1. **ON EXAMS ALWAYS BRING UP Self Defense: Reasonable force to protect against
           confinement or imminent harm or harmful contact (battery and assault).
               a. Restatement 2nd: can use the amnt reasonably necessary to protect against the
                   harm with which presented (ex: cant use murder against battery). Can use
                   proportional force.
               b. Reasonably deadly force is permitted if you are not required to retreat. Sometimes,
                   you are required to retreat. OR- if reasonably believe in danger of similar harm.
               c. Castle doctrine: if someone comes into your house, you can defend at all lengths.
               d. Insults and provocation, not enough to warrant self defense.
               e. You can defend a third party in some situations. (Sutherland claims immunity for
                   defending old lady getting beat up); some jurisdictions buy that argument, and
                   others do not (mistakes might be on you).
               f. One may be privileged to commit what would otherwise be an assault in some
                   situations. (Ex: committing assault in defense of another assault). Same thing with
                   false imprisonment.
               g. You reasonably (but mistakenly) believe that self defense is necessary- ok if you
                   think that it is reasonable.
               h. Arrest and detention (shopkeeper’s privilege defense): Peters v. Menard: Peters
                   drowns and charged with wrongful death; statute said shopkeepers immune from
                   tort liability in certain circumstances (when actions are reasonable).
                         i. Shopkeepers privilege: without arresting other to detain on premises for the
                            time necessary to reasonably investigate the facts. (detain-reasonable cause
                            to believe person violated law, manner of detention has to be reasonable,
                            length of time has to be reasonable; detain includes pursuing for public
                            policy—so that they don’t run out the door and injure others, so economy
                            an market value is kept low for goods, etc). *in some jurisdictions,
                            shopkeepers lose immunity if they make a mistake.
        2. Negate element of claim (not intentional).
        3. Ex: Katko v. Briney: *IMPORTANT*
               a. Value of human life outweighs property every time. This is the case with the rigged
                   shotgun. Value of life for that individual and society at large is so great that can’t kill
                   people over threat to property. (Defense; wasn’t deadly force- didn’t mean to kill
                   anyone, just a warning shot).
        4. Ex: Brown v. Martinez
                  a. Stealing watermelons- same thing, not ok to defend property with disproportionate
                     amount of force. Kid is retreating- so also have to retreat. Don’t get to shoot person
                     for property (watermelons).
                  b. There is a time when you can maybe use force when trying to get property back—
                     when you’re in hot pursuit. You can’t use force to repossess.
                  c. *If only property threatened force to deadly harm, not allowed.

CONSENT: defeat claim entirely.

          1. Ex: Robbins v. Harris
                 a. Lockdown in jail – women flash breasts – he claims there is consent for oral sex
                    (problem: power relationship). Prisoners cannot give consent.
                 b. If claim consent- think of power relationship.


I. Scope of Consent:

          A. Ashcraft v. King (16 yr old consented to blood transfusion) only consented with blood from
          own family, and got blood from non family member and ended up with HIV/AIDS. She did not
          consent—she said yes to blood transfusion; but, said from a certain group of people.

          Rule: If you exceed the SCOPE of consent, it’s a battery.

          Scope of Consent: Reasonable person’s standard

          Ex: Kennedy v. Parrott: punctured cysts in ovaries that caused cysts in her legs. Paternalistic
          medicine: doctors need that discretion in order to make life saving choices. (Policy choice).
          Reasonable physicians’ standard with that level of experience.

          *Note: anyone who gives consent can revoke it at any time.

          Ex: Doe v. Johnson (Magic Johnson). Plaintiff alleges Magic Johnson gave her AIDS during
          consensual sex. She says yes to intercourse; not, transmission of disease. Tort is battery.
          (harmful, offensive touching), if you know you have an STD and your partner does not know and
          you know your partner does not know, having sex is a battery.

          >>What happens if you lock little kid in closet and say that you won’t let him out unless you hit
          him on the head? Is that a tort? Yes-battery, consent given under duress.

II. DEFENSES: Privileges that get you out of tort liability

          *Private Necessity: protecting himself/his property from some imminent, serious harm

          *Public Necessity: protecting the public from harm done to other people’s/community’s things.
         Ex: Surocco v. Geary (1853): intended to protect the community at large—fire was going to
         destroy more than one people’s things. If it were neighbor, it could be private necessity-if
         worried about his own stuff. Fire keeps raging, mayor did it in good faith and did it in necessary
         action. Doctrine of public necessity: if your property becomes nuisance to others/threat to
         others, it can be destroyed. If there is a statute, you can compensate through public funds, but
         need law in the books.

         **Goal of torts: is social utility—it is not a just result, but good for the community.

         Ex: Wegner v. Milwaukee Mutual Insurance Co. (police destroyed house with hand grenades
         when the felon tried to hide in the home). It is not public necessity- Rule: “taking clause” of
         constitution. (most courts say that this won’t be under takings clause- but, in MN yes (usually
         takings is eminent domain)).

III. Private Necessity

         Ex: Ploof v. Putnam Ploof is sailing on Lake Champlaign and tied boat on Putnam’s dock.
         Putnam uses force to get the guy off. *Storm changes things because of the safety of the
         people aboard the dock. If there were no people on the boat, there would be no problem.
         Ex: Katko v. Briney life and limb > property.

         Ex: Vincent v. Lake Erie Transportation Co. He is on the hook because it was property vs. other
         property (choice because of the tying (breaking) and retying the lines). (Satisfies a fairness in
         our minds- corrective justice- I’m hurting your stuff to save my stuff).

Negligence: REASONABLE standard. Duty not to create an unreasonable risk to others that matures in






Negligence per se satisfies first two elements of duty and breach.

Causation (actual cause (but, for ex: but for my eating the banana, banana wouldn’t be on the ground)
and proximate cause) (proximate/legal cause: foreseeability –what would a reasonable person foresee).

Ex: Stewart v. Motts--- owner of gas station filling up carburetor with gas. There is no more standard of
care for “dangerous” situations than Reasonable care. Reasonable person would take higher care.
Ex: Bjorndal v. Weitman (collision- plaintiff was looking for dad, saw him with flashers went left and
Weitman went around her)—Plaintiff says that emergency was created by defendant—And didn’t want
jury to get extra instruction. The emergency constructed misstated the law. We don’t give a different
kind of standard for this case- because a REASONABLE persons standard-don’t need emergency

Ex: Shepherd v. Gardner Wholesale, Inc. Shepherd trips on sidewalk and sued—she had extreme
cataracts so she acted as a reasonable person w cataracts would do person would act in this situation.

Ex: Creasy v. Rusk—mental disability does not excuse conduct to reasonable person’s standard policy.
Public policy decision. Rule: mental disability person held to same reasonable person standard of care,
but the nurse knew what he was getting into when employed to work with combative patient with
Alzheimer’s disease.

Ex: Hill v. Sparks- held to higher standard because of exceptional ability

What about drunk person: not held to drunk persons standard, reasonable persons standard.

Sudden incapacitation (like heart attack while driving)- not liable. Old age doesn’t count as disability.


Hill v. Sparks:

          -Case where man operates earth scraper.

          -What is the reasonable standard of care? (The reasonable standard of care of someone with
          superior knowledge). Someone with specialized abilities/knowledge held to higher standard.

Robinson v. Lindsay

          -When activity that child is engaged in is inherently dangerous, child should be held to adult
          standard of care. (“Inherently Dangerous Activity” Test)

Hudson-Connor v. Putney

          -11 yr old riding golf cart

          -(“Adult Activity Test”): if activity that child is engaged in is an adult activity, then held to adult
          reasonable standard.
        -Court concluded operating golf cart is not an adult activity. So, don’t hold kid to adult standard
        of care. It still could be found that he has a duty to drive golf cart safely (and negligent at child’s
        standard..still could find negligence; just might be harder).

Marshall v. Southern Railway—

        -When you’re driving, have to exercise normal duty of care. Can’t blame your accident on other

Chaffin v. Brame—

        -Chaffin more Reasonable than above because slowed down (didn’t have reason to expect truck
        on road).

Martin v Herzon—

        -negligence per se (you get duty and breach—go straight to C1, C2 & I).

        -struck a buggy (without lights). (could be comparative fault—now), used to be that plaintiff
        had no recovery at all. It is negligent not to have headlights because it is illegal (statute set
        Reasonable person’s standard in this case).

O’Guin v. Bingham County--

        -take something from criminal law and import into torts case. Two boys killed while playing in
        land fill. O’Guins sue county for negligence per se (point to statute and say that it was violated).

        -statute: has to (1) clearly define required standard of care (2) intend to prevent the type of
        harm the defendant’s act/omission caused (3) plaintiff must be a member of the class of
        persons the statute was designed to protect (4) the violation of the statute must be the
        proximate cause of the injury of these kids.

        -statute required to adequately fence and block access to landfill when no attendant on duty to
        protect human health (this included the kids’ death). So, plaintiff establishes breach. Duty is still
        a question—remand back for trial.

Ipsen v Structural Metals

        -Statute prohibits passing within 100ft of intersection. Plaintiff says negligence as a matter of
        law. (1) is the harm the kind the statute intends to prevent? [YES]

        -Valid excuses for violating the statute. If actor is (1) incapacitated (2) doesn’t know or shouldn’t
        know of the occasion for compliance (3) unable after reasonable care/diligence to comply or
        (4) is confronted by an emergency not due to own misconduct or compliance would involve a
        greater risk of harm.

Pipher v. Purcell:

        -3 16yr olds riding in car. One grabs steering wheel once and then again, accident occurs. What
        is duty of driver? [Not to put passengers in danger because of his actions—REASONABLE person
        standard of care].

Indiana Consolidated Insurance Co. v. Mathew (Ind Ct. App. 1980):

        -not reasonably FORESEEABLE that lawn mower would catch on fire. No breach of duty—

Stinnet v. Buchele (KY Ct. App. 1980)

        -Employer’s obligation not above that of the employee (who had more knowledge than guy who
        employed him).

Burnier v. Boston Edison Co.

        -Edison considered cost, capacity to install safely and adaptability of supply—didn’t consider
        safety to pedestrians. Court says that negligence is proved here because (1) forseeable and
        (2) injuries are bad.

p.153 United States v. Carroll Towing Co.

Is it reasonable to have barge without bargee on board?

Negligently caused barge to break adrift. Court held that Carroll Towing liable and then considered
whether absence of bargee on board was negligence that reduced damages. Reduced to three factors.

    1. Probability that barge would walk away (P) (function of time of year and the day).
    2. Loss/liability (Injury) (what could a reasonable person foresee happening?)
    3. Burden (B)

B < PxL (concerned with economic costs (perhaps, compensation, perhaps not)!... does not address
corrective justice).

If Burden < PxL then, you’ve breached your duty of reasonable care.

Custom is not dispositive.

Thoma v. Cracker Barrel – winning a case in circumstantial evidence:

        Thoma slipped and fell. Has to show defendant created dangerous condition and either had
actual knowledge or constructed knowledge (should have known) about dangerous condition. Court said
that reasonable jury could have gone either way. So, the jury needed to see the case. The factual
questions have no answer.

       At trial, plaintiff could convince jury there was liquid on the floor, could show cracker barrel
knew or should have known about the spill.

Wal-Mart Stores, Inc. v. Wright- said Walmart was a negligent and introduced store manual to be held to
that standard. Court says they can create standard that was higher than reasonable standard. It’s still
reasonable standard that applies. (Stands for the fact that custom does not equal reasonableness –
EXCEPT med malpractice). – same with TJ Hooper case.

Duncan v. Corbetta- custom gets at ball park of what reasonableness but doesn’t equal reasonableness.
Duncan case says you don’t exclude evidence just because about custom. “Proof of a general custom
and usage is admissible because it tends to establish a standard by which ordinary care may be

TJ Hooper- No custom in the case. However, they were not ok. They still lost because “everyone in a
relevant community could be acting unreasonably.” There were 2 barges lost off the Jersey coast in a
gail wind. The bare owners sued the tugs…. Tug owners said there was no problem. Courts are the ones
that determine what REASONABLENESS is NOT tug boat owners. Custom does NOT dictate was
reasonableness is. Court always makes the decision.

Reps ipsa loquitur- ***DEFINITELY ON EXAM*** : Would the plaintiff have a reps ipsa case here? No, I
don’t think so..here’s why (bring it up)! “Thing speaks for itself” Plaintiff doesn’t know why what
happened happened to them. . . you know someone messed up if it happens (ex: quadriplegic falling on
floor at doctor’s office). By virtue of the fact it happened, you know someone messed up. Plaintiff’s
injury caused by condition under defendant’s exclusive management/control at the relevant time.

Byrne v. Boadle- man walking down street and barrel of flour hits you on the head. Sue the people who’s
barrel it is. Elements of reps ipsa: “(1) the accident which produced a person’s injury was one which
ordinarily does not happen in the absence of negligence (2) the instrumentality or agent which caused
the accident was under the exclusive control of the defendant and (3) the circumstances indicated that
the untoward event was not caused or contributed to by any act or neglect on the part of the injured
person. --- jury may draw inference of negligence if they have the elements above.
Koch v. Norris Public Power District- plaintiff gets past directed verdict- plaintiff may rely on res ipsa
loquitur because power lines do not normally fall without fault on behalf of the company that maintains

Cosgrove v. Commonwealth Edison Co. stormy night. Powerline fell. Fire injured plaintiff. Plaintiff cannot
rely on res ipsa as to the electric company but can rely on it for the gas company. “Other forces [besides
negligence] may cause a downed power line, such as wind, lightning, storm, or an animal chewing
through the wire.” But a “ruptured gas line feeding a fire does not ordinarily occur in the absence of

Slip and fall cases are NOT res ipsa cases.

Warren v. Jeffries – Terry Lee Enoch (6 yrs old) run over by Chevy. Car was on an incline. 12 kids were at
the house and car parked for an hour. Defendant told Terry’s mom she could take car for the shoe
polish. Older kid told to jump out- Terry was crushed. This is not a control issue because DEFENDANT
was not in sole control of the car. Res Ipsa doesn’t apply if the plaintiff also has a complete account of
what occurred. There was non asymmetrical knowledge here. Plaintiff and defendant both knew what
was wrong.

Giles v. City of New Haven

Otis’ job to make sure elevator is running well. Plaintiff (elevator operator) is injured when elevator
breaks. Res Ipsa because Otis needs to make sure that elevator is running well.

                                 I.       Purposes of Tort Law
                                 II.      Intentional Torts
                                 III.     Defenses to Intentional Torts
                                 IV.      Negligence
                                          a. Duty
                                          b. Breach
                                                   i. Judge Hand—risk utility
                                          a. Actual Causation


Collins v. Superior Air-Ground Ambulance Service

Defendants argue that Res Ipsa does not apply because there are two defendants that could have
caused the accident. Normally, Plaintiff needs to get rid of everyone else (even herself) for fault in order
to establish res ipsa. But, the court holds that the Plaintiff can have res ipsa claim because it was clearly
one of the two defendants’ fault (they share responsibility with serial control of the plaintiff’s mother).
Because plaintiff couldn’t get at what happened, we know if was one of the 2 defendants, and they
allow res ipsa to continue. This case is an exception; it is not the norm. Usually, when more than one
defendant, not the norm.

Res Ipsa means that you can get to the jury; not that you automatically win the trial. (Jury may find duty
and breach are satisfied).

Actual Causation:

Right v. Breen:

Plaintiff sued for economic and non-economic damages of bodily injury after rear-ended, no physical
injuries reported at the scene. Plaintiff presented evidence that injuries were caused by the defendant.
The Defendant presented evidence that plaintiff was injured in 5 previous auto accidents. What is at
work here? (if Actual Causation exists). The law requires proof of actual damages (proof of injury/harm).
We don’t have proof that latest accident is connected to her injury. Nominal damages (in name only)
usually $1 or $0.06.

What counts as legally cognizable harm? If you can’t figure out there is a harm, there is not a negligence
action. E.g. the Walmart condom case, just from broken condom, no injury… just from high blood
pressure at one time, is there harm? Legitimate damages can include loss of wages/earning capacity,
past and future medical bills.

Punitive damages: damages to prevent the act happening in the future.

Hale v. Ostrow:

-walking off bus and obstructed from looking for traffic by the bushes on the side of the road. She sues
because she breaks her hip when she trips on the sidewalk. The defendants claim that the injury was
due to sidewalk hole not the bushes. “If directly contributed to the plaintiff’s injury,”  causation. The
test here is the BUT FOR test… would the broken hip have happened without the overgrown bushes on
the sidewalk? Jury gets to determine comparative fault issues.

Salinetro v. Nystrom:

Nystrom didn’t ask if Salinetro pregnant when she came to get X-rays for auto accident injuries. She was
pregnant, gyno advised that she terminate it because of the x-ray. Fetus was dead at the time of the
abortion. Salinetro sues for malpractice (duty prong is the standard of care that physicians in general
do—established by custom—only in MED MAL). If he had sat her down and warned about pregnancy,
she would have said no not pregnant. For this reason, doesn’t pass the but/for test, and there is no
causation. There is no actual causation, she was part of the “calculus.” If you assume for the sake of
argument that his conduct fell below standard of care (asking if she were pregnant), that breach would
not have caused injury because, again she didn’t know she was pregnant.

Landers v. East Texas Salt Water Disposal Co. (Tex 1952):

Pipelines of East Texas Salt Water Disposal Co. break and overflow the lake—on the same day, the Sun
Oil Co. caused salt water and oil to flow into lake and kill fish. There are two tortfeasors, and can there
be joint and several liability (with two separate parties—not related and not working together). The
Robicheaux rule says that an action cannot be maintained jointly—this is the OLD rule. The old rule says
you have to separate who did what. The NEW rule (indivisible injury rule) changes that—shifts
impossible burden from plaintiffs to the defendants, so that defendants have to figure out that they
were not at fault (because they were the tortfeasors). Indivisible injury: when the tortious acts of two or
more wrongdoers join to produce an indivisible injury, (an injury which from its nature cannot be
apportioned with reasonable certainty to the individual wrongdoers), all of the wrongdoers will be held
jointly and severally liable for the entire damages and the injured party may proceed to judgment
against any one separately or against all in one suit…” Corrective justice: tortfeasors paying.
Compensation: plaintiff gets $.

Anderson v. Minneapolis St. Paul & Sault Ste. Marie Railway (Minn 1920):

Fire swept east and burned plaintiff’s place (engine burning since October)—but, defendants say that
other fires were also sweeping in that direction, and blames the other fires. Is the defendant’s engine
fire an actual cause of the injury? MATERIAL AND SUBSTANTIAL ELEMENT TEST APPLIES: “If you find the
other fires mingled with the one that was set by the engine, the fire set by the engine was still a material
or substantial element…” (Like Hale v. Ostrow).

Joint and Several liability: can be held liable together or separately (compensation). Proportional Liability
(corrective justice): only what you are at fault for. But for the engine fire, the plaintiffs place would nto
have burned-it doesn’t clearly satisfy that test-but, we know that engine fire was part of it-so use the
material and substantial element test.

Summers v. Tice:

Plaintiff sues both defendants after eye injury when impossible for plaintiff to establish actual causation.
Court rejects the Robicheaux rule. Both were negligent and shot in direction of plaintiff-so each is
responsible. So, plaintiff wins—both held liable even though one didn’t cause actual damage. Defendant
has to absolve itself of guilt—you get a gun expert to analyze bb in the guys eye to prove who would
shoot. Policy: we don’t want to put burden on plaintiff-it should be put on someone at fault.

Lord v. Lovett:
Plaintiff suffered broken neck in car accident. She said that because defendants misdiagnosed spinal
cord injury and failed to immobilize her properly, she lost opportunity to get better treatment. Lost
opportunity doctrine 3 approaches: (1) traditional approach [followed by the minority of courts]: says
ALL or nothing: plaintiff must prove that as a result of negligence, defendant deprived of at least 51%
chance of better treatment. (2) Relaxes standard of proof: demonstrate defendant’s negligence more
likely than not to have increased harm to the plaintiff or destroyed the opportunity of achieving a better
outcome. Has to increase plaintiff’s harm to some degree. If plaintiff can do that, recovers for the
ENTIRE pre existing cause rather than just loss of opportunity. WORST OF BOTH WORLDS: continues
arbitrariness of all or nothing rule. Plaintiff can collect much more easily, with less to prove. (3): Lost
opportunity is itself the injury. Lost opportunity is itself a tort.

Alexander v. Scheid (Ind. 2000): radiologist pointed out that it would be helpful to compare with old
films. Radiologist did not follow up. Probability of long term survival reduced because of the delay. What
kind of regime is the case under? Loss of chance is better understood as description of injury, so
plaintiff here may bring claim of negligence for increase of harm.

Dillon v. Evanston Hospital (2002): remnant of catheter worked itself into her heart (2 pieces). Her injury
is increased risk of future harm and pain and suffering. This case shows you that that’s an injury that she
can bring a claim on…. This is a permissible claim.

Proximate causation: main question: ask are the plaintiff and the injury within the scope of the risk?
How do you figure out scope of the risk: foreseeability (is the plaintiff and the injury within the scope fo
the risk?).

Medcalf v. Washington: buzzer did not unlock when the plaintiff wanted to get in…is the buzzer breaking
the proximate cause of the injury? But for the broken buzzer, she wouldn’t have been attacked. Type of
harm and type of person that is supposed to be avoided- This condo association cannot be held
responsible for actions of third party. Not the kind of harm that could be foreseen.


Abrams v. City of Chicago But for ambulance coming she wouldn’t have gotten in accident? True But was
it actual cause of her injuries—INTERVENING factors. So, no…. So, ambulance company is not

Palsgraf v. Long Island Railroad Co. (Proximate cause): MARK WITH TAB—Snead—Cardozo conversation.
Third party dropped a package of fireworks on the tracks during boarding. Fireworks exploded and the
scales hit plaintiff causing injury. Can you hold the railroad accountable for this? This is a duty issue for
Cardozo (resolves issue on duty prong). Can’t just have general idea that someone was negligent; need
to know who’s duty it was. Cardozo talks about reasonable foreseeability with duty- but usually, we talk
about with proximate causation. That’s why this case is interesting. Andrews talks about proximate
causation. Andrews wins in the analysis of foreseeability is located in proximate causation; but
reasonable foreseeability is the test that is used; so, both judges win in history of this case. There is no
duty to rescue strangers; but, Cardozo says danger invites rescue and rescuers are reasonably

Hughes v. Lord Advocate: post office workers working on an underground telephone cable left candles
out and took tea break. Kid suffered severe burns and parents sued. Explosion was not foreseeable—so
held for defendant.

Doughty v. Turner Manufacturing Co., Ltd.: not foreseeable, so no breach of duty and held for
defendants. (This was the manufacturing plant that splashed when the lid dropped in and there was an

Hammerstein v. Jean Development: diabetic had to walk downstairs for fire alarm. System had been
malfunctioning for some time and no fire—fire alarm, he had to walk downstairs. Held for defendant,
there is negligence (thin skull)—you can foresee someone hurting their foot on stairs. Just bc diabetic..
not off the hook.

Watson v. Kentucky Indiana Bridge and Railroad: Durr threw match onto road and intervening cause to
explosion on railroad. This case said not liable. NEW RULE: Criminal acts may in themselves be
foreseeable and within scope of risk. (Note #2 in book).

Delaney v. Reynolds: plaintiff lived with police officer and police officer stored in bedroom loaded.
Defendant knew plaintiff depressed and had substance abuse problems, plaintiff pulled trigger twice
and did not fire twice and then fired and hurt herself. Is defendant on hook? Rule: Yes, was negligent.
Historically, cop wouldn’t be on the hook for this. Sometimes, higher duty to rescue – if special
relationship exists btwn plaintiff and defendant.

        See Restatement 2nd $455.

        2 exceptions where suicide not intervening cause; inducing action or special relationship Note
        #1, pg 240

Derdiarian v. Felix Contracting Corp: defendant installing underground gas main and had excavated most
of eastbound lane of traffic. Kettle of liquid (boiling to 400 degrees). Against Derdiarians wishes, he was
told to go on west side of traffic- facing traffic- protected by single barricade. Hit by epileptic, and
ignited in fire ball. Case came out for

____ I had to leave because I was laughing so hard. [Missed Ventricelli v. Kinney System Rent a Car]
Marshall v. Nugent- Plaintiff was a passenger in Harriman’s car and ice and hard packed snow made him
skid into truck. Plaintiff sued nugent and truck driver. Plaintiff’s action was silly—Risk wasn’t over “not a
clear cut situation” Is result of original negligence over? How many steps are there in the chain of


Butterfield v. Forrester: point is that in old contributory negligence, fault principle : if liability is based on
fault, and defendant is on hook for being at fault, plaintiff should be held too and whole complaint goes
away. If plaintiff 1% negligent, and defendant 99% negligent, then complaint is barred forever. Court
adopts all or nothing approach for policy reasons—easy to administer (for process, but lose out on
corrective justice). Exceptions started to get carved out--

          1. Fault Principle: Plaintiff’s fault causes him to lose case
          2. Proximate cause: defendant caused harm and plaintiff’s negligence is superseding cause.
          3. Negligence: If defendant is negligent, that doesn’t mean you have a claim. You also have to
             apply to plaintiff, was the plaintiff negligent?

Proportional share liability cannot be invoked by an intentional tortfeasorin new restatement.

Wassle v. Adams: shows Posner’s methodology: woman gets raped and it happens at a hotel. How do
you compare negligent plaintiff, to negligent defendant? How would you figure that out? Fault doesn’t
always work and causation doesn’t always work. Restatement uses the word responsibility (rather than
fault or blame); but, they talk about it in terms of fault and causation.

Bexica v. Javier Manufacturing Corp: Guy’s hand is punched out with hole cutter in machine- guard
wasn’t there and he smashed his hand. There is some negligence in his part. Old Butterfield rule would
say too bad. But- defense of contributory negligence is unavailable when assertive negligence of plaintiff
is very eventuality that is duty of defendant to prevent. Showing that they’re making an exception again
to fit in more liability for plaintiff and defendant negligence.

Policies involved with comparative fault:

             Plaintiff’s incapacity: if the plaintiff lacks total or partial capacity, plaintiff can’t be
              completely negligent (ex: quadriplegic falling off of bed, child, disabled)
             Structural Safety: if the defendant is in charge of the structural environment, he should
              know of the risks involved, plaintiff not at fault.
             Role definition: (ex: employer caring for employee, teacher for student, etc)
             Process values: Negative fault of comparative fault, you give up a lot in process values. You
              have to waste more time with lawyers and back and forth and who is at fault. All of that
              goes away in contributory negligence regine.
             Fundamental values: much more interested in corrective justice (with comparative fault)
             Autonomy and Self-Risk: plaintiff’s conduct risks only harm to himself. If risked harm to
              defendant, defendant has much better case.
Christenson case: Public Policy is to protect children from sexual abuse. So, school district cannot claim
contributory negligence. The black letter law/rule: claim of contributory negligence is barred when there
is a claim of special relationship (ex: here, the school is required to provide care for the child—cannot
claim contributory negligence). So, can’t have negligence if there is no duty.

Defense #1: Comparative Fault

2nd defense: Entitlement Rule: People are entitled to assume their neighbor’s will not be negligent
(especially on their own property). “One’s use of his property should not be subjected to the servitude
of the wrongful acts of another”

Exceptions to Contributory Negligence (Do these exceptions make sense outside of a contributory
negligence regime?< type of question Snead would ask on an exam).

    1. Rescue Doctrine: One who sees a person in imminent danger caused by the negligence of
       another, you cannot be charged w contributory negligence unless the rescuer acted recklessly.
       Some courts have abandoned this doctrine, or changed w good Samaritan laws.
    2. Discovered Peril: if defendant discovered or should have discovered plaintiff’s peril, and could
       have reasonably avoided plaintiffs negligence cannot bar nor reduce plaintiff’s recovery.
            a. Only applies if defendant discovered peril.
    3. Defendant’s reckless conduct: when state of mind is more culpable, contributory negligence is
       not a defense. Contributory negligence is no defense to willful/wanton/reckless tort.
       Historically, contributory negligence was never allowed w intentional torts.
            a. In a comparative fault situation, should you compare intentional fault of defendant to
                 plaintiff’s negligence? Is proximate cause satisfied by plaintiff?
    4. If plaintiff has completed illegal activity: if direct result of knowing participation in criminal act,
       cannot seek composition in the loss.
    5. If you cannot satisfy that plaintiff was negligent, don’t have contributory negligence or
       comparative fault.

Defense #3: express assumption of risk/waiver

Ex: ATV course sign up: Rule: if a given danger could be eliminated/mitigated through exercise of
reasonable care, it is not a necessary danger and not inherent risk of the sport. Pre-injury releases of
liability are unenforceable if they offend public policy, are unclear or ambiguous. Even if release passes
the public policy test, the risk that caused the injury must be within the scope of release to completely
bar plaintiff’s claim. [Contractual assumption of the risk is alive in the law].

Defense #4: Implied Assumption of the Risk

Ex: Bettes v. Crawford (p.284): houseworker that fell down stairs. Defendant’s wanted trial judge to
assert that serveant assumes all risk/dangers of employment even though those risks are directly
attributable to master’s negligence. Rule: there is no distinction between contributory negligence and
assumption of the risk (merged into comparative negligence).

Ex: Walski case: standard of care for medical malpractice is custom. We (as the law) allow medical
professionals to define their own standard of care. There are more than one medical standard/practice.
(rejection of TJ Hooper)

Modified Locality Rule/Strict locality rule (permutations of the idea of CUSTOM). Just define custom

             Duty Rule: What the average/qualified physician would do in a particular situation. The
              physician has to possess learning/skill of other physicians and has to use reasonable skill in
              care. Physician not liable for an honest mistake, and we don’t expect doctors to be infallible.
             Where confident medical authority is divided, if physician followed course of treatment
              advocated by a considerable number of medical professionals, then physician not held
              accountable. (Walski rule)

Ex: Vergara v. Doan: suffers from severe and permanent injuries sustained during delivery. Medical
malpractice law is the only way to exercise regulatory physicians once they are certified

Standard of Care today, right now: doctors don’t have to exceed that (custom is the line): don’t need to
improve (like TJ Hooper), it is actually more risky to go above and beyond.

Standard of care: strict locality rule like the old rule. Standard is just like the community (ex: South Bend
doctors only held to what other South Bend doctors due).

Modified Locality Rule: intends to prevent inequity that would result from holding urban doctors to
same result as rural doctors. Takes time and money to define what is a similar community.

A physician must exercise that degree of care, skill and efficiency by the same class to which he belongs
acting in same or similar circumstances. Specialists are held to the standard of their specialties (i.e.,
cardiologists to cardiologists).

Medical practitioners have duty to refer to specialists if the standard of care requires.

Ex: Hirpa v. IHC Hospitals, Inc.: law intending to motivate doctors to rescue without giving liability.
Doesn’t apply if doctor has pre-existing duty to the patient.

Res ipsa loquitur: med mal:

Ex: States v. Lourdes Hospital: res ipsa establishes duty and breach. Expert testimony allowed in med
malpractice cases—med testimony is allowed is a big deal bc res ipsa is usually obvious negligence that
anyone could pick up- - but, need expert here. Normal basis for medical res ipsa is “is it a matter of
common knowledge that plaintiff’s injury is more likely than not to result from negligence?” Here, med
expert testimony fills in the roll that common knowledge would normally fill in. Expert clarifies that this
is the kind of result you only get if someone’s negligence.
“In the common knowledge of experts, is it more likely than not to have occurred because of
negligence?” med Res Ipsa

Ex: Ybarra v. Spangard: Res Ipsa applied even though several possibilities of who is at fault. Court holds
them all responsible for their conduct. Allow jury to infer breach and burden on defendant’s to persuade
jury. --Plaintiff diagnosed with appendicitis by Dr. Tilley, developed paralysis and atrophy of muscles
around the shoulder and returned to work after that. . . plaintiff’s theory of recovery is res ipsa. ALWAYS
talk about ASYMMETRICAL knowledge and whether or not it’s there. HERE, asymmetrical knowledge bc
guy was under anesthesia . . . so, res ipsa goes forward.

Instrumentalities test: is about the “right of control” not “actual control”—all defendant’s who had right
of control over body/instrumentality may be called upon to meet inference of negligence.  corrective
justice, for plaintiff

Ex: Harnish v. Children’s Hospital Medical Center: informed consent, right to autonomy & bodily
intergrity. Duty rule: the physician owes to his patient the duty to disclose in a REASONABLE manner all
significant info that physician possesses or reasonably should possess.

           Professional standard duty rule: defined by custom. Says that the information that physician
            “R” should possess is possessed by reasonable physician/average physician in that specialty.
           Have to give info a “R” person in patient’s position would want whether or not to submit to
            surgery/treatment or not (OBJECTIVE standard).
           Material risks rule: look for nature of patient’s condition, nature of risks and probability of
            risks, benefits expected, inability of physician to predict results *think of irreversibility of
            procedure, likely result of no treatment, available alternatives. (Easier to satisfy professional
            duty standard). (information patient believes that patient already has, don’t have to
           Privilege of non-disclosure: I have a privilege to keep info from patient for therapeutic
            reasons (and needs to prove therapeutic reasons are legit). This goes against the autonomy
            value, this is paternalistic.
           Injury rule: unrevealed risk that should have been made known must materialize, otherwise
            omission is without consequence. Plaintiff has to show at trial that had he been presented
            with info neither he nor reasonable person would have consented to procedure/treatment
            (subjective AND objective standard).

Ex: Woolley v. Henderson:

Standard here is with medical expert testimony. Plaintiff must prove by objective test.

Ex: Marsingill v. O’Malley:

Ex: Wlosinski v. Cohn: Dr. doesn’t need to disclose success rate. Not part of informed consent analysis
(mention this at end of analysis on exam). Dr. doesn’t have to disclose success rate it is outside of scope
of informed consent.
Ex: Arato v. Avedon: dr doesn’t have duty to disclose prognosis. Non risk information goes to standard of
practice in the medical community.

           There is no duty to obtain informed consent in an emergency situation.

Ex: Truman v. Thomas:

        Dr. has additional duty if patient refuses risk free procedure.

Ex: Brown v. Dibbell:

       Plaintiff’s comparative fault for failing to give truthful and complete family history when it’s

*Non feasance: non duty to act rule—one person does not owe other duty to act Individuals are
responsible for their own actions; they are not liable for others’ conduct (barring special relationships).
Unless you create the danger.

*Reasonable rescuer rule: one who voluntarily undertakes to render services to another is liable for
harm caused by his failure to perform the rescue reasonably. Special duty: landowner/lawful entrant,
carrier-passenger, innkeeper-guest, employer-employee, landlord-tenant, custodian-person in custody.


De Shaney case: State does not need to protect life liberty and property against invasion by private


Intentional infliction of emotional distress

Negligent infliction of emotional distress

Loss of consortium

    1. IIED (stand alone tort): you don’t need to piggy back on battery/assault…cannot be parasitic on
           a. Elements: an actor who by extreme and outrageous conduct intentionally or recklessly
                causes severe emotional disturbance to another is subject to liability (if causes bodily
                harm, also responsible for bodily harm). Restatement §45
           b. This is a “gap filler claim” doesn’t fall under assault; it’s something else.
               Must be intended and recklessly undertaken and has to be extreme and outrageous.

        Groove v. Union Pacific Railroad:
             o Need causation with intention and recklessly undertaken
             o Need sever and debilitating emotional distress.
             o Need link between behavior and emotional distress.
             o (extreme and outrageous: repeated and carried out over time, abuse of power
                 (abuse of authority), exploitation of vulnerability.)
       IIED
             o 1. Intent, 2. Extreme and Outrageous (repetition, abuse of power, exploited
                 vulnerability) 3. Must be severe and debilitating –
             o Defense: 1st Amendment rights—people can exercise their legal rights to fire
                 someone, file for divorce, etc even though they might whine and cry about it.
             o Bystander rules:
                      The Restatement 2d of Torts §46:
                               immediate family (who is present at the time) or
                               any other person who is present at the time if the distress results in
                                   bodily harm.
             o Presence Requirement: Plaintiff must be present and known by defendant to be
                      Policy: line drawing (don’t want frivolous law suits) and foreseeability.
                      Exceptions: dependent on who is plaintiff and victim, and their
   2. Homer v. Long: Therapist seduced so that wife and husband were divorced. Plaintiff claims IIED.
      When can extreme and outrageous conduct towards A be a claim for B? Homer was NOT
      PRESENT at seduction, because of presence requirement, he doesn’t have a claim.


          Physical Impact Rule: plaintiff has to demonstrate some physical impact/injury to claim for
           emotional distress—need some physical injury.
          Zone of Danger Rule: if plaintiff is in zone of danger, she can recover even if no injury, but
           she must have feared for he own safety.
                o A worker can recover for emotional injury caused by fear of physical injury for
                    himself (if in zone of danger).
                o Time and space: only want those claims that are most serious and easiest for courts
                    to answer
          Dillon Standard: Rejects the hopeless artificiality of the zone of danger rule. REJECTS Zone of
           Danger rule. More flexible, more totality of the circumstances. “Courts should take into
           account 3 factors in determining foreseeability 1.) whether the plaintiff was located near the
           scene of the accident as contrasted with one who was a distance away from it. 2.) whether
           the shock resulted from a direct emotional impact on the plaintiff from sensory and
          contemporaneous observance of the accident as contrasted from learning of accident from
          others after the occurrence. 3.) whether the plaintiff and the victim were closely related.
              o Dillon is a standard: totality of the circumstances taken in—you can show 1 or 2 or
                  3. Thing, you have to have a showing under each prong.
                       Policy: fairness
         The Thing Rule:
              o 1.) Plaintiff had a sensory and contemporaneous observance of the accident,
                  plaintiff is at the scene and was aware that it was causing injury to the victim.
              o 2.) Plaintiff and victim have to be closely related. (Related by blood or marriage,
                  relatives residing in same household, parents, siblings, children and grandchildren of
                  the victim. Not a rescuer, employer, would be rescuer, neighbor, lesbian lover—
                  probably not.)
              o 3.) As a result, plaintiff suffers severe emotional distress beyond that which would
                  be anticipated in a disinterested witness and is NOT an abnormal response in the
                       Policy: formalism, efficiency, process values
         Physical Impact and zone of danger (bystander and direct victims), Dillon and Thing (just
          about bystanders).



    Who can bring these claims?
        o Over time, they’ve been phased out and eliminated. But, the concept is that the
            servant’s services are lost if they are injured, so master needs to recover. Today, it is
            not you hurt my servant/wife, it’s more “I lost my companionship/sexual satisfaction”.
            The parent/child relationship is not usually successful—NO CLAIM. Some courts allow a
            claim made on behalf of the child for loss of parent. At common law, if child a minor,
            father could recover for child’s work—so, now after child labor laws, no.
        o Consortium claim is for a species of mental distress/emotional loss-but legal harm is
            ongoing sense of loss (ongoing emptiness).
        o Emotional distress claim is like a stab wount; a consortium claim is like carrying a heavy
            burden all day.
                 1.- has to piggy back on another claim (there is GOING to be physically injured
                 2.- It can rise no higher than claim that is derived from damages.
                         1. Proof of close relationship between injured person
                         2. Proof of actual loss between services and society
        o The first domestic partner claim is recognized in VT and CA.
Inequitable Asset and Loss of Consortium: courts have not found a way to limit liability on consortium
claims and the recognition of consortium claims might raise insurance, etc.

Ex: Burgess v. Superior Court (has DIRECT VICTIM RULE): Direct Victim Rule: Requires previous
relationship between victim and plaintiff in bystander claims.

     Policy Reasons p.530 (efficiency, process values).


Pre-Natal Harms: (Right to abortion)

When you talk about compensating someone for something that happens to a fetus in utero, you come
up in conflict with the idea that the woman can kill the baby on her own. The area of law is fraught with
problems in the background.

Say, “as a policy matter, there would not likely be a claim of xxxx because, policy leads me to believe
that we don’t care about blah blah”

     There are 14th Amendment due process clause rights to abortion. “Unenumerated constitutional
      right”; States can restrict abortion POST-viability. Under constitutional law, fetuses are not
      persons until the 21 week 5 day mark.
     BORN ALIVE RULE: If a fetus takes one breath or exhibits one vital sign, it can sustain a claim
      against a third party.
          o Some jurisdictions say that it has to be born alive and it has to be viable—called the
               “viability variation of the born alive rule”
          o What happens if you have a viable fetus that is born dead? A lot of jurisdictions allow a
               claim as long as the baby was viable (post 21 weeks and 5 days).
          o In general, if born dead and pre-viability, no claim.
     Some jurisdictions say viability just doesn’t matter. If you have been pregnant for 2 weeks, you
      have a claim if the baby dies. (Ex: In Michigan).
     The Unborn victim of Violence Act: Statute- protects unborn babies at any stage. So, you usually
      see this in the criminal context. If someone is assaulted, even if previable fetus dies, that is an
      assault and a murder or 2 murders.

    IMPORTANT CASE: Ex: REMY v. McDonald: addresses whether a duty exists for the mom to care for
    the fetus. Can she commit a tort against her own fetus while she’s carrying it? The Rule is NO DUTY.
    “There are inherent and important differences between a fetus in utero and a child already born.
    There is no duty for a mother carrying a child to show a certain level of care toward that child.”
    Mother’s negligent driving caused car accident and injured child in utero. Is there a duty? Should she
    have done something better? Holding: NO RULE. POLICY: if it’s legal to kill child (abortion) how can
    we hold you liable for injuring it?
1. Wrongful Conception
      a. No recovery
      b. Benefit Rule
      c. Full-Recovery Rule
2. Wrongful Birth
3. Wrongful Life

1. Wrongful Conception:
      a. Plaintiff sues for entire cost of child rearing. The argument is that you did something
         negligent when I was asking you to sterilize me and now I have a child. Plaintiff sues for
         cost of child rearing. You asked for some sterilization, someone was negligent and now,
         you have child. 3 rules
      b. 3 rules;
                i. No recovery rule: sorry, you don’t get to recover cost for raising this child.
                   (MAJORITY states- 31 states- follow this rule)
               ii. Benefit rule: you can recover costs of rearing child – the benefit of having the
                   child. Difficult for jury to decide cost of child rearing – the benefit. (HARD
              iii. Full recovery rule: the parent can recover all costs of rearing the child.
                   (MINORITY RULE)
2. Wrongful Birth
      a. Not usually a viable claim. Some jurisdictions have lies against this claim. Wrongful birth
         claim is a negligent failure to diagnose an abnormality that causes economic/emotional
         harm to the parents and you are saying that there is a wrongful birth.
      b. You have to prove that if you had had knowledge of the abnormality, you would have
         terminated the pregnancy. The birth itself is the injury. The measure of damages ist he
         lifetime rearing of the child of the disability—what if the doctor told you you were
         having a girl and the boy comes out. Do you have a wrongful birth claim?
      c. These cases usually fail because you can’t prove causation (but for the circumstances,
         you would have had an abortion).
3. Wrongful Life
      a. When the child brings the claim in his or her own name. Child brings it and you are
         essentially saying, “It’s better that I never existed.” As a general rule, the claim doesn’t
         go far. If the doctor hadn’t been negligent, I would have been aborted and it would have
         been preferable to my existence now.
      b. Being alive is the injury.
      c. Many jurisdictions refuse to recognize these claims. If the parents recover in wrongful
         birth claim, then child can’t recover for the same claim. Problem is: how to prove

   1. Wrongful Death
          a. Defense: contributory negligence or assumption of risk. (Damages can be cut because of
              what he or she did to act in an unreasonable manner). Statutes of limitations also
              matter (statute starts running at the time of the death.
   2. Survival Actions

   1. Wrongful Death
         a. Weigel v. Lee (driven by statute):
                   i. Darlin Rodgers died when she was put in a regular room in the hospital when
                      she needed to be in the ICU. Her adult children sue vs. the doctor. Wrongful
                      death is usually by statute not c/l.
                  ii. Recovery: loss of companionship, comfort, consortium, etc. All the loss of death.
                 iii. RULE: whenever death of person is caused by wrongful act (and, if person
                      survived, would have had personal injury claim) that claim survives the death of
                      the person injured and death of the tort feasor. Claim is surviving death—
                 iv. RECOVERY: beneficiaries listed in the statute. Not about loss to the estate. (NOT
                          1. Surviving husband and wife, surviving children, mother/father, personal
                               representative/step children/surviving person of custody/unmarried
                               cohabitants and same sex couples in a few states.
                          2. Heirs at law are DIFFERENT than the people above. You HAVE to look for
                               the people in the statute here to determine who can bring claim.
                          3. Money goes to the survivors. Most courts WILL permit loss of
                               consortium. North Dakota provides for mental anguish and relief (as an
   2. Survival Actions
                   i. RECOVERY: ABOUT LOSS OF ESTATE. Executor of estate will bring a survival
                      action. The actionable claim will be part of the value of the estate.
                  ii. The $ will go to the estate not to the beneficiaries, if they are different.
                 iii. Intended to allow recovery for what could have sustained could he have lived—
                 iv. Damages: pecuniary (funeral, loss of support to dependents. Don’t have to
                      know how to measure damages—probable lifetime earnings, the expenses
                      decedent would have had to maintain himself are subtracted). Nonpecuniary
                      damages (punitive damages—rare, but can exist), loss of consortium, mental
                      anguish, loss of services, loss of guidance and care, etc.

DEFENSES TO WRONGFUL DEATH: contributory negligence or assumption of risk.

GOAL: Prevention of future injuries (general and specific deterrence). Deterring society as a whole and
deterring specific people from doing specific things and also COMPENSATION (assuring compensation to
victims) and also, the equitable spreading of losses caused by an enterprise.

EX: Employer tells employee not to burn the trash. Employee burns the trash, and employer is still on
the hook. (S/L).

    I.        Control
              a. Control: Master has control over the servant. It is the old justification for respondeat
                  superior. Master has control over his servant.
    II.       Enterprise Liability
              a. Person who benefits from enterprise is responsible to bear all the costs of his own
                  activities, especially when they cause harms to others. The harms are asymmetrical
                  harms. You are perpetuating asymmetrical harms-whether you are doing it directly or
                  behind the scenes, it is still your enterprise. You are exposing others to risk and it is only
                  fair that you should pay.
              b. Modern justification: employer is the one who profits, so it is only just to hold him liable
                  as opposed to the injured, poor party.
              c. Policy: Loss is caused by the employees- employees are sure to occur. Those risks are
                  placed on the enterprise. It is a “required cost of doing business.” AND employer is
                  better able to distribute costs through insurance, prices, rates, etc to make the “public
                  pay” for the riskiness.
              d. If employer causes the torts, society will stop using your goods and services because they
                  are too risky  some corrective justice that comes back into the practice. Also,
                  insurance is available and the poor, injured plaintiff can collect. Those who buy products
                  are paying some part of the cost.
              e. Calabrese says: the very purpose of tort law is to reduce the cost of accidents and the
                  cost of avoiding them. The price of goods and activities should accurately reflect the
                  accidents they cause. Holding an enterprise S/L facilitates this internalization of costs.
                  The market will tend to favor the cheaper products (safer=cheaper).


I. Human beings take chances. So, how long can I float with my low price before I get burned? Can we
really assume that enterprises build in the cost of litigation?

II. Do we like the no fault theory of recovery? Even if an employer does EVERYTHING he can to prevent
the very act the employee does, employer still liable. Is it fair? Do we like that? They can have all sorts of
safety meetings, instructive lessons, and employee can still do the very thing and there is still s/l!

    III.      Not fair.

    (1) Was employee acting in scope of employment?
           a. If not in scope of employment—then, employer not at risk.
           b. If going and coming—not liable.
    (2) Compensation goals:
           a. Average innocent victim will face a defendant too poor to meet the claim, so we need in
              the law to put in the legal regime that will permit recovery by poor, injured plaintiff.

EX: Fruit v. Schreiner

*Employee drives to the bar and skids and hits someone, employer on hook because in scope of


                          1. Borrowed servant rule: when one employer loans employee to another
                               employer. Which one is on the hook?
                                Liability depends on which employer is in the better position to
                                    prevent the injury suffered. i.e., WHICH EMPLOYER HAD RIGHT TO
                                    CONTROL EMPLOYEE’S CONDUCT AT THE TIME.
                                Some jurisdictions say that both are liable.
                          2. SERVING GRATUITOUSLY: even if you are a volunteer, you can cause the
                               company to be at fault.
                                Does church have deep pockets? No. But, are they still on the hook?
                          3. Frolic v. Detour: frolic = no employer liability (fiesta time) & detour =
                                What is a smoke break? Frolic or detour?
                                          o Detour (most courts).
                          4. Going and Coming Rule: an employee going to and from work is
                               ordinarily considered outside the scope of employment, and employer
                               not liable for his torts.
                                Exceptions: if the trip involves an incidental benefit to the employer,
                                    dual purpose (if getting starbucks while getting office supplies), if
                                    employer pays money (for travel expenses beyond the normal labor
                                    market and requires you to go beyond your normal labor market—
                                    over and above thing and employer on hook). If travel and to/from
                                    work involves special hazards (distance not a special hazard).
     If this employee didn’t do the task, would someone else needed to have gone and done it.

When you get to word limit start cutting stuff, be concise.

Employers who are not masters: if you have an employer who is an independent contractor, the
employer is not strictly liable for the actions of the independent contractor. Look at the selection and
engagement of that employee—if employer has control in the relationship (a) payment of wages- once
time thing, month to month, taxes (b) power to fire (c) power to control conduct- what day/time/how
they do (d) whether work is part of regular business of employer (e) whether the worker has his own
tools/own special skills (f) if he runs his own business *Employers first line of defense to claim* =
independent contractor.

           Exception: NON DELIGABLE DUTY DOCTRINE: If you bring an independent contractor into the
          situation and you try to delegate something to them that is too dangerous to delegate, you’re
          still on the hook. Work is inherently dangerous when it creates a risk of peculiar danger to
          others (driving does not count, poision does, strong acids, explosives, etc). Also, if employer is
          required by statute to provide safety precautions (By statute) he has to do so.

          Doctrine of Apparent Agency: If you think it’s a McDonalds (and everything about it tells you it
          is), it’s the doctrine of Apparent agency- if every appearance is that someone is the agent of
          McDonalds, you’re allowed to rely on that. Injured party can reasonably rely on apparent agency
          for liability of injury.

          The Incompetent Contractor Exception: A plaintiff has to show (1) the contractor was
          incompetent/unskilled to perform the job for which he was hired (to win against employer).
          Also has to (2) prove the harm resulted arose out of incompetence and (3) the employer knew
          or should have known about incompetence.

                  Incompetence can be: anger management issues, drunkenness, drug abuse, drug use,
                  not knowing how to do your job, not having insurance (when legally required).


          *Negligent Hiring, *Negligent Supervision, *Negligent Retention-kept him even though sucked

          Hospitals can be liable for corporate negligence for letting incompetent doctors stay there; in
          partnerships, both partners would be personally liable. If you have a joint enterprise, all can be
          held liable for injuries to outside party, but demonstrate there’s an express or implied
          agreement between those joint business owners, a common purpose, equal right of control or
          common purpose.


             Comparative fault rules: you have a share of the responsibility if you let someone else drive
              your car.
           If you are in the car (owner), and right to control the vehicle, you’re on the hook. (Might be
            liable for failure to exercise control of the car).
           If owner lends car to competent driver, no agency and no liability.
           Some states have owner consent statutes: owner liable for negligence of the driver even in
            the case of loaning to a competent driver.
           MI: no fault insurance state (so a lot of that doesn’t matter)
           Family Purpose doctrine: generally family use of a car makes owner liable for negligent use
            by a member of the family
           Both ways rule: two negligent drivers both have claims against another- and can cancel each
            other out


Deals with the liabilities of those that manufacture/distribute harm causing products. Originally contract
law, where you had to be part of contract to bring a claim—eventually, that became a tort law matter.

Law of Strict Products Liability: abolished privity requirement. Now, sellers are liable to physical injuries
to persons/property. Also, injured consumer could recover- S/L attached to products that were
defective because they were UNREASONABLY safe to consumers and consumer R harm

Economic loss rule: economic harm standing alone is only recoverable via the warranty/contract, NOT

Calabrisi: if you are making a product that is dangerous and causes harm, eventually product is going to
be more expensive and going to cause harm. (It will promote deterrence because increase cost, people
stop buying, and eventually it will reduce accidents).

    1. Manufacturing defect: performance of this product violates consumer expectations that it’s
       going to work in safe and effective way. (as close to S/L as you get)
        3 elements of prima facie case (1) product was in fact defective condition (unreasonably
           dangerous for its intended use (2) defect existed when product left defendant’s control (3)
           defect was proximate result of injury sustained
        Mere fact of injury during use of the product is insufficient to prove defect existed when
           product left defendant’s control

Res Ipsa: Event was normally of kind that only happens when product defect, and you would say not
soley the result of some other cause, at least product defect and plaintiff doesn’t have to prove specific
defect, an inference of defect may arise even though don’t answer exactly what was defective.

A manufacturing defect is a physical departure from intended design. CONSUMER EXPECTATION TEST
RESTAMENT (2d) $402A—ask if product was dangerous beyond the contemplation of R consumer.
        *Harm causing product in food is a defect if R consumer would not expect food product to
contain that ingredient.

Defense: equally likely end user used product the wrong way, or that someone else harmed product after
it left us.

    2. Design Defect Claim: The design itself is wrong and has a problem. Some courts follow
       consumer expectation test, but largely given way to Risk Utility Test: when item is foreseeably
       used and risks > benefits AND REASONABLY ALTERNATIVE DESIGN, (RAD= 1. Would have
       prevented the injury in THIS case, 2. The RAD would have prevented the injury in this case
       without diminishing usefulness of the product 3. Without equal or greater risk of injuries in
       other cases). 4. Must be economically and technologically feasible.
           a. If utility negligible and risk too high: ex: bag of glass/guns/etc, then Risk Utility Test
               doesn’t work because functionality is in dangerousness
           b. The consumer expectation test: a product is in a defective condition and unreasonably
               dangerous to consumer… misuse products but misuse is foreseeable. Strains the test:
               When you have a consumer who just doesn’t know how safe to expect product to be
               (case of innocent bystander)—so, you have –some kind of product that harms innocent
               bystander, or case of new product- we just don’t know how safe it is. OR industrial
               workman that expects product to be dangerous, does he never win? Jury could still find
               risk of danger outweighs benefits.
           c. RISK UTILITY/CONSUMER EXPECTATION COMBO: if plaintiff demonstrates product
               failed to perform as safely as ordinary consumer would expect as intended or R
               foreseeable manner and design caused proximate design caused injury. So, Plaintiff
               proves (a) didn’t meet expectations when used in foreseeable manner and (b) product
               design proximately proved injury AND DEFENDANT cannot prove on balance that
               benefits outweigh the risks  moves forward
                     i. Relevant factors include: likelihood injury caused, gravity of danger posed,
                        mechanical and economic feasibility of design alternative.
                        OTHERS AND SOMETIMES< COMBO.

           This doesn’t look like s/l anymore, look smore like a negligence idea than a s/l idea!

If R people can differ on the evidence, then it’s a question for the jury, not the judge. But the design
defect is a WATERING DOWN OF s/L. Need to prove things to hold accountable. Ex: Honda of America,
safer alternative existed, would have been R alternative, technologically and economically feasible and
benefits > costs; including diminished safety. Reduced risk of harm in this case without imposing greater
or equal harm in other cases.
Use of alternative design in other manufacturer shows feasibility, but not as a matter of law.

Risk Utility test is in applicable when the knife/gun is used. No reason to search for alternative/safer
design when product’s sole utility is to kill/maim.

A product is unreasonably dangerous per se if reasonable person would conclude danger of product
outweighs utility (bag of glass).

Plaintiffs have had limited success in bringing design claims against gun manufacturers (FEDERAL
IMMUNITY prohibiting claims against manufacturers for harm caused by misuse of guns). Narrow
exceptions: if manufacturer or seller knowingly violates stautes, if manufacturer aids/abets/conspires
with other person knowing the actual buyer was not able to buy.

Calabrisis economic analysis and tobacco manufcaturers: if true cost was reflected in the cost of
cigarettes, it would be prohibitively

    3. WARRANTY DEFECTS/INFORMATION: failure to warn. (look a lot like negligence FAR from S/L):
       Oliver Holmes rejected—rather the approach is that some products are defective when
       foreseeable risks of harm could have been avoided with R warning, and lack of warning renders
       product unsafe. Law says that warning would have made things safer and your duty to provide
       that warning. Even if risk of danger is REALLY clear, duty to warn still prevails. Even if danger is
       obvious, still have to warn.
           a. Two types of warnings: (1) when danger is clear and still have to warn (2) as long as
               inexpensive and makes things slightly safer When EXPLAINS ALTERNATIVE OPTION
           b. Warnings must be reasonably clear and of sufficient force and intensity to convey the
               nature and extent of the risks to the person
           c. LERANRED INTERMEDIARY RULE (doctors): manufacturers of drugs must provide
               warnigns to doctors who prescribe drugs- don’t have to provide warning to you-
               doctor HAS DUTY to tell you of risks.
                      i. Direct marketing to patients might undercut the learned intermediary rule.
           d. HEEDING PRESUMPTION: we assume people heed warnings: if the warning would
               have ben there, plaintiff would have read it, understood and heeded it.
           e. No warnings about foreseeable risks of danger, an otherwise safe product might be
               seemed defective (not have a warning makes product defective).

RESTATEMETN OF PRODUCTS LIABILITY: warnings of risk s of health risks of drugs must be given only
when manufacturer knows or reason to know learned intermediary has reason to believe that learned
intermediary won’t warn.

POST SALE DUTY: Very early rule said that you have a duty to warn of known danger at the point of sale,
after you sold the product, you’re off the hook.

BEFORE THERE CAN BE DUTY TO WARN/REPAIR/RECALL: there must be an actual defect on product at
the point of manufacture.
*RESTATEMENT OF PRODUCTS LIBAILITY $!0: seller/distributor required to give post sale warning when
a R person would do so. R person would do so when (a) knew or should know product poses substantial
risk of harm (2) those to whom warning might be given can be identified and assumed to be unaware of
the risk (3) warning can be effectively communicated (4) risk of harm outweighs burden of giving

Successor corporations only have duty to provide warning when they continue to sell or maintain
products/repair products and R to do so. And statutes regulations may cover post sale warnings and

DEFENSES Products Liability:

   1. Comparative Fault/Assumption of the Risk if plaintiff voluntary/ knowingly assumed risk
      occasioned by the defect, you may be less on the hook or not on the hook as manufacturer
   2. Otherwise s/l manufacturer has defense if plaintiff used product in unforeseeable manner.
          a. Manufacturers still on hook for FORESEEABLE misuses
          b. Policy: seller by marketing his product has taken on responsibility for injury… policy
              deamnds accidental damage risk be put in the hands of those who make the products.
              Liability assigned to the enterprises. Critic: design defects and warning defects are
              brought and given to the manufacturer..but really their fault?

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