TORTS OUTLINE – Fall 2000 (Prof. Park)
Purpose of tort law is to (1) create peaceful means to end disputes; (2) deter wrongful conduct; (3)
encourage socially responsible behavior; and (4) to make an injured party whole.
I. INTENTIONAL TORTS
1. There is no general definition under intentional torts; all that is required that D must have
intended to bring about some sort of physical or mental effect upon P.
a. No intent to harm is actually needed, just intent to cause/bring about physical or mental effect upon
P. (i.e. intend to make P scared of apprehension of harm but not intending to actually harm P, makes
D liable for assault nonetheless.)
b. Substantial certainty that specific effect will occur as result from D’s action, makes D liable as to
Garratt v. Dailey: It was substantially certain that P would fall as result of little
Brian Dailey moving P’s chair, therefore, intent is inferred.
Just highly likely (recklessly) conduct does not make D liable under intentional
2. Transferred intent – if D has intent to commit battery on X, but instead batters Y, then D’s intent transfers to
act of hitting Y.
3. Damages – generally greater liability is imposed on intentional conduct than upon negligent conduct.
1. Definition: Intentional infliction of harmful or offensive bodily contact.
a. does not have to harm; can include offensive contact that is “damaging to a reasonable sense of
dignity” (i.e. spitting on someone)
b. P does not have to be aware of contact (ex: P can be sleeping & still be battered)
2. Objective standard on what is offensive or harmful contact
3. P’s body does not have to be touched – it can be anything connected to P’s person
a. Fisher v. Carrousel: Black P had plate snatched away from him at D’s hotel. Assailant was liable
for battery even though D did not touch P’s body, just as long as he touched item in P’s hand – which
is considered offensive contact & an intentional invasion of “P’s person.” All made act sufficient
ground for a battery action.
1. Definition: Intentionally causing apprehension of harmful or offensive contact
a. apprehension must be reasonable under the circumstances
Determined by jury
b. future threat is not sufficient
It must appear to P that harm threatened is imminent & that D has ability to carry
c. generally, mere words are not sufficient, unless coupled by provocative gestures.
d. P has to be aware of apprehension of contact
This is different than battery
2. D does not have to actually want to harm P. (ex: if D, as a practical joke, points a toy gun at P, and P
reasonably beliefs it to be a real gun, and then D pretends to shoot – D is liable for assault.)
D. False Imprisonment
1. Definition: Intentional infliction of confinement
a. Does not include reckless/negligent act (ex: shop owner negligently locking store, while customer
is still inside.)
b. Does not include being prohibited from entering an area
c. consent is a complete defense (Hardy v. Labelle’s: P, employee, consented to being in back office
in order to investigate store theft. Therefore, no false imprisonment.)
2. D must be aware that she is being confined or must suffer actual harm.
3. When other ways of escaping exist: If D locks door and P believes she has no other
means of escape & D knows that P is not aware of other exists, then this is false
4. Confinement does not have to be within four walls – refusal to provide means to leave is sufficient.
a. Whittaker v. Sandford: D did not let P use a boat to leave D’s yacht and go to
land. D, as yacht owner, had a duty to provide a reasonable means in which P could
use to get off yacht.
E. Intentional Infliction of Mental Distress
1. Definition: Extreme and outrageous conduct that intentionally or recklessly causes
severe emotional distress.
a. Causal connection between outrageous conduct and emotional distress.
P’s injury flows from D’s conduct
b. Conduct must go beyond bounds of decency & be regarded as atrocious, and
utterly intolerable in society.
c. Emotional distress must be so severe that no reasonable person should/would
P has burden of proof to show emotional distress – this sometimes can
be done by manifesting physical injuries or showing that P sought
2. Objective test to severe emotional distress – more than just insults are needed.
a. Slocum v. Food Fair Stores: D’s employee used vulgar language and was rude
to P. P claimed IIMD. Crt said objective test must be used (rather than P’s own
subjective standard of what constitutes severe emotional distress) in order to rule out
mere emotional distress.
Awareness of P’s sensitivities is a factor in IIMD.
3. Special relationships: P can recover for IIMD if D injures person in special relationship
(parent, child, spouse) to P if;
a. D is aware that P is watching
b. D intends to inflict mental distress on P by injuring other person
F. Trespass to Land
1. Protects landowner’s exclusive right to possession of his land
a. Damage is NOT required
Nuisance, on the other hand, protects landowner’s exclusive peaceful
enjoyment and use of his property – and must show damages.
2. Trespass occurs when;
a. D intentionally enters P’s land w/o permission
b. D remains on P’s land w/o the right to be there; even if D entered rightfully.
c. D puts an object on P’s land w/o permission or refuses to remove object from P’s
Rogers v. Brd of Roads: D had permission to use land for period of
time. D left anchor post of P’s property after time lapsed. D was
liable for trespass.
3. Intangible Articles;
a. Trespass can include particles & gasses that float from D’s land onto P’s property
and causes damages (to limit mass liability).
Bradley v. American Smelting: Harmful pollutants from D’s
smelting company floated downwind to P’s property & accumulated
on P’s land. Crt said this is trespass.
a. Narrowing approach – Newark v. Eastern Airlines: A landowner is only in
ownership of airspace that he uses in direct connection of land itself. Airspace is
public domain for the most part.
b. Common law approach – Herrin v. Sutherland: D shooting duck over P’s
property. D liable. Common law rule: homeowners have exclusive rights over sky
above their property.
G. Trespass to Chattels
1. Definition: Intentional interference with a person’s use or possession of a chattel
a. protects owners exclusive use of chattel & the interfering thereof.
b. if chattel is impaired as to its condition, quality or value, D has to pay damages –
not the full value of property.
2. P’s chattel does not have to be harmed in order for P to recover.
a. as long as P looses possession P can recover (ex: D takes P’s car for joyride and
returns it unharmed after 2 hrs. D has committed trespass to chattels)
3. P must show more than nominal damages.
1. Definition: Intentional interference with P’s possession or ownership of property which
is so substantial that D should be required to pay the property’s full value.
a. destruction of property constitutes conversion
b. exercising dominion over chattel to exclusive or defiance of lawful owner’s right.
c. appropriating property to one’s own use
d. P has to show that it was his property, he didn’t want it taken, and that he wants it
e. transferred intent does not occur w/ conversion
2. Factors to consider in determining seriousness of interference w/ P’s right to possession;
a. extent & duration of actor’s exercise of control or dominion
b. harm done to property
b. inconvenience & expense caused to owner
c. actor’s good faith
3. Ways chattel may be converted;
a. stealing the chattel
b. damaging or altering it
c. receiving chattel after it has been stolen
d. disposing of chattel; a bailee who wrongfully sells it
e. misdelivering it; delivering property to wrong person, address, etc.
f. refusing to surrender property
4. Effect of good faith
a. if bailee negotiates the sale of stolen product to a 3rd party, then regardless of
good faith, D is liable.
b. if bailee is aware of completing claim to property/product, then bailee acts at his
own peril when deciding whom he should surrender item to.
c. Exception to good faith:
If bailee has no knowledge or reason to believe that the person
presenting or recovering the chattel has stolen it, then D is not liable
Bailee & servant are not liable if they act in good faith and have no
notice of competing claim for chattel,
BUT, one who, in good faith, buys stolen property is liable.
a. Measured by open market value of property
b. damages cannot be recovered for sentimental value of property,
If converter offers to give back item & it’s not in that bad of shape, P
can still sue for conversion – damages might be reduced, though.
II. PRIVILEGES TO INTENTIONAL TORTS
A. Privilege: right to engage in conduct that would be tortious but for the special grant of
permission or license by the other person or because of special relationship they have entered into.
1. D is not liable if P consented to D’s act
a. consent may be given expressly
b. consent may be implied by custom, conduct, words, or by law
O’Brian v. Cunnard: D, a doctor gave P a vaccination on boat. P
sued for intentional tort. Crt ruled that if it reasonably seemed to
someone in D’s position that P consented (via P’s conduct – holding
up her arm & standing in line), then consent exists regardless of P’s
unexpressed inner wishes.
2. Lack of capacity
a. consent is invalidated if P is incapable of giving consent (i.e. a child, intoxicated,
Medical emergency exception re: unconsciousness
3. Exceeding Scope of consent
a. even if P consents, if D goes substantially beyond the scope of the consent, then
D may be liable.
Mohr v. Williams: P consented to operation on right ear, and D then
operates on left ear as well. Crt ruled that left ear operation wasn’t
such a medical necessary as to extend consent.
Pillow fight scenario: if you consent to pillow fight & other person
picks up a bat, then this goes beyond scope & damages are
b. A representation that induces consent, if proven fraudulent and causes damages,
invalidates that consent and can be tortious claim.
1. A person is entitled to use reasonable force to prevent any threatened harmful or
offensive bodily contact, and any threatened confinement or imprisonment.
2. Degree of force
a. forced used must be proportional to threat
b. proportional is measured by what is reasonably required
If D used more force than is needed and it’s not reasonable, then D is
Deadly force can only be used when deadly harm is threatened.
3. Reasonable mistake of fact re: danger is privileged
a. retaliation is not privileged
b. injury to 3rd person is privileged if no negligence
a. not necessary in majority of jurisdiction
b. at common law & in minority of jurisdictions today, retreat is required.
D. Defense of Others
1. Similar to self-defense in that person can use reasonable force to prevent attack on
2. Mistake of Fact;
a. some jurisdictions put person in the shoes of person he is trying to protect.
1. if person who D is protecting is privileged to use self-defense, then D is
privileged to defend that person.
b. other jurisdictions make defense of others privileged as long as mistake of fact is
E. Defense of Property
1. Generally, one may use reasonable force to prevent the commission of a tort against his
2. Amount of force
a. reasonable force, so deadly force may never be used to protect property (unless
deadly force against homeowner/property owner accompanies threat to property).
b. Katko v. Briney: D used spring gun to protect his unoccupied farm house. P, an
intruder was severely injured by trap. This was excessive force and not privileged.
Crt will determine if property owner would have been allowed to use
same amount of force had he been present, rather than spring-gun.
F. Recovery of Property
1. Generally, property owner can use reasonable force to recapture property when in
“hot/fresh pursuit” of person w/ stolen property.
a. Hot/fresh pursuit: if sufficient time has lapsed between items being stolen &
owner’s notice of it, then owner can not recover using force
b. owner must go through legal channels.
2. Demand for property must be made, unless futile or dangerous to do so, before force is
used to recover property.
3. Shopkeepers have privilege to detain person for a short period, if they suspect that person
of stealing property.
1. Generally, a person may harm/destroy the property of another, where the harm done is
necessary in order to prevent a greater harm to that person or others.
2. Public Necessity
a. where act is for the public good, the defense of necessity is absolute and D is not
liable for damages.
Ex: Destroying one house in order to prevent fire from spreading to a
row of houses.
3. Private Necessity
a. where act is solely done to benefit the D or his property, then the defense of
necessity is qualified so, D has to pay for damages caused but is not liable for the
Vincent v. Lake Erie Transp: D moored boat to P’s dock during
violent storm in order to protect crew & boat. P’s dock was damaged.
P was not liable for trespass but P was liable for damages to dock.
1. When D has sufficient reason for a conduct that would otherwise be tortious, it is
possible that D may not be liable under justification defense.
2. This is used when D’s act does not fall within the other defenses, but society recognizes
that D should not be made to pay for act.
a. law enforcement privilege when within scope of law/authority
b. immunity for high officials in capacity of office
1. Duty: legal duty requiring D to conduct himself according to a certain standard, in order
to avoid unreasonable risk to others
2. Breach: failure to conform to the required standard
3. Causation: a reasonably close causal connection between conduct & resulting injury
4. Damage/Injury: P must show that damages resulted from breach
B. Negligence Formula
1. D is liable for what he actually knows, for what he reasonably should know, and for what
he reasonably can foresee.
a. Unreasonable Risk – P must show that D’s conduct imposed an unreasonable risk
of harm on P or class of persons which P is a member.
b. Balancing Burden and Utility – does risk of harm from the act greatly outweigh
any benefits from the act? And, is cost/burden to reduce risk greatly outweighed by
consequences? And, would a reasonable person take on that burden?
US v. Carroll Towing: Judge Hand’s formula for assessing if liability
exists/measuring negligence: (D’s Burden in order to avoid risk <
Probability of Injury x Gravity of Injury from D’s act) B<PL
c. Reasonably Foreseeable risks
Cohen v. Petty: D passed out while driving & injured P. D had no
knowledge that it would happen, therefore is not negligent.
C. Standard of Care
1. A reasonable prudent person in that circumstance is the general standard of care.
a. Objective standard
b. In an emergency: what a reasonable person in the same emergency would do
But, if they cause emergency we give them less deference.
c. Handicap person: what reasonable person with same handicap would do, BUT
handicap person also has to take special precautions (i.e. training to avoid accidents).
As P’s, we give more deference to handicap person.
Roberts v. State of LA: Crt said, D, who was blind, only had to meet
standard of reasonably prudent blind person – which included
learning to walk carefully across the room.
d. Insane people are held up to a sane person standard
e. Children: what a reasonable child w/ same age, experience, & knowledge would
If child is engaged in inherently dangerous activity, they are held to
an adult standard of care (snowmobile case).
f. Professionals: must meet the reasonable prudent standard that professionals of
that field/activity have.
Heath v. Swift Wings: Crt said standard of care was that of a
reasonable pilot and not subjective standard of pilot’s personal level
Professional predictions: 1) must use professional skills &
knowledge, 2) must exercise best judgment (good faith & honest
belief), 3) exercise due diligence in making prediction. But,
professional does not have to be 100% right.
Community Standards – before Drs from rural areas where not held
up to same standard as Drs in urban areas but this is now changing,
and Dr’s are being held to national standard.
g. Custom: usage and custom standards are not controlling factor for standard of
care but they’re still germane when determining negligence. Non-compliance with
custom might be evidence of negligence, and/or compliance might be evidence of
reasonableness. Is it reasonable that D would follow standards? (economically
prudent). This is a question for the jury.
Trimarco v. Klein: Glass shower door. Glass door was installed
prior to new standard for shatter-proof doors. Other landlords
adhered to this new standard. Crt said it’s question for the jury.
2. Medical Malpractice & Informed Consent
a. Objective test for determining negligence when patient is not fully informed: Would the
reasonable person have opted for procedure or not, if doctor had given patient full information?
b. Subjective test: Whether the individual person involved would have opted for procedure had the
doctor provided the full information? This rule relies on hindsight of patient, which could be hard for
doctor to refute.
In cases where patients’ desires are so out of the mainstream (i.e. cutting off leg
because of pain, when other less evasive procedures are available), then crts rely
less and less on patients’ need for autonomy and focus more and more on doctors’
duty to adhere to his/her medical ethics.
c. Statutory change in common law tort system during “Medical Malpractice Crisis” is a legislative
intervention on private law. But since so many doctor’s were being driven out of profession due to
malpractice suits & insurance companies were no longer issuing malpractice insurance, legislatures
1. Changes in standard of care doctrine
3. Changes in informed consent rule
4. Changes in res ipsa loquitur
5. Changes in collateral source rule
6. Changes in statute of limitations
7. Limits on amount for pain and suffering
8. Prohibited the setting forth in complaint of amount of relief sought by P.
3. Automobile Guest Statutes
a. At first laws were made that shielded drivers from negligence charges by their auto guest, since
guests were receiving benefit. The exception to this was when driver was reckless or used gross
b. Then as insurance became more prevalent, this again changed to provide means for auto guests to
D. Violations of Statute
1. Standard of care may be established by proving the applicability of a statute to case at
hand. – this goes to duty.
2. P must prove;
a. D’s conduct was prohibited
b. Purpose of regulation/statute was to protect against particular harm P suffered
c. P is a member of the class to be protected, and
d. P was injured by the unlawful conduct.
3. Negligence Per Se
a. Majority rule: When a safety statute is violated, this equals negligence per se, in
that a duty was established and it was breached, so, D’s conduct/act was negligent as
a matter of law.
In those maj. juris. that make violation of statute negligence per se, crt
takes issue away from jury & makes judgment of negligence &
reasonableness as a Matter of Law, but jury still can decide on issue
of whether P actually violated the statute.
Osborne v. McMasters: Pharmacists does not label poison, as
required by statute and P is poisoned and dies. P was of the class
statute meant to protect & this is type of harm the statute meant to
prevent. Crt said this was negligence per se – conclusive evidence of
b. Min. of juris. use violation of statute as rebuttable presumption of negligence
c. And, a few states just use it as mere evidence of negligence.
d. local ordinances and regulations have less weight than statutes.
e. And, there are times when violating a statute is only reasonable option D has,
therefore it should be up to the jury.
f. Establishing negligence as a Matter of Law has a high threshold.
E. Res Ipsa Loquitur
1. Allows P to point to the fact that accident occurred to draw inference that D was
negligent, in cases where direct proof as to negligence is wanting. (“the thing speaks for
itself”) – goes towards breaching duty owed to P.
a. McDougald v. Perry: Spare-tire fell from D’s faulty tire cradle & crashed into
P’s car. Crt allowed res ipsa inference since common experience tell us that this type
of accident would not occur but for D’s failure to exercise reasonable care.
2. Requirements in order for P to use res ipsa;
a. No direct evidence of D’s conduct
b. P must show that harm seldom occurs without negligence
c. Instrumentality which caused the harm was in D’s exclusive control
(i) Larson v. St. Francis Hotel
d. P must establish that he had nothing to do w/ harm caused.
3. Effects of Res Ipsa;
a. allows case to go to jury even though P cannot show direct evidence/proof that D
b. allows common-sense inference of D’s negligence
4. Rebuttal Evidence;
a. if D can show that P did not meet requirements for Res Ipsa (e.g. exclusive
control), then D will get a directed verdict since P failed burden of production.
b. D could present evidence/info showing alternative explanations for injury, but
case still goes to jury for them to assess.
F. Causation in Fact
1. Burden of proof is on P to show that more probably than not D’s act caused P’s injury –
causal connection between D’s act and P’s harm.
a. But for test
b. Substantial factor test (more than 1 “but for” causes)
2. “Might have caused” is not sufficient. Causal proof has to be shown through actual evidence and not
speculation or theories.
a. if D can show alternative cause which is just as likely to have caused damage as P’s inferences or
provide evidence to refute P’s causal evidence, then D will be cleared.
b. Proof can come from qualified expert witnesses
Daubert v. Merrell Dow Pharm: Crt rejects Frye Test for expert witness testimony
since testimony was re: new, innovative science. New factors that crt must consider
in allowing expert testimony: Can the theory be tested and hypotheses falsified? Has
the theory been subjected to peer review and publication? What is the error rate, and
are there standards governing the performing of the testing procedure? Was research
independent of law suit? General acceptance in science field does count, but only as
3. Concurrent Causes – 2 or more events occur to cause P’s harm & either one would have been sufficient to
a. But for test does not work – substitute with substantial factor test
b. each event is the “cause in fact” of the injury
c. If P shows that each D was at fault, then burden shifts to each D to exculpate
himself from fault.
d. If each D is cause in fact, then each D is liable for the whole injury
(i) P can only recover once, though.
Hill v. Edmonds: Truck parked in road w/o lights hit by P in car.
Where separate acts of negligence combine to produce directly a
single injury each tortfeasor is responsible for the entire result, even
though his act alone might not have caused the injury. (in this case P
& D were negligent)
Anderson v. Minneapolis: RR ignited brush & causes fire, which meets w/ another
fire caused by unknown source, unite to burn P’s property. In cases where D’s act,
combined with act by an unknown source, damages property, both are liable for
damage and if unknown source is not found, then D alone would be liable.
4. When each D is a substantial factor in concurrent negligence, either;
a. each D pays for own negligence, and indivisible injury
b. each act sufficient for whole liability
c. If Ds acted in concert then both are liable and burden is on each D to show that it
wasn’t him who caused injury (Summers v. Tice)
d. When Ds acted independently, but injury was indivisible;
(i) If each is sufficient to cause harm, then both are liable.
(ii) If neither alone is sufficient, but as a whole/together they are substantial
factor in causing the harm, then proportional damages.
e. Ds acted independently negligent towards class of people which P belongs to,
and cause injury indeterminably (in a joint or constructive enterprise).
Sindell v. Abbot Lab: P injured due to drug taken by mother. P is
unsure which drug manufacturer produced the dose P’s mother took.
Crt used Market Share theory of liability. Each D’s liability
determined by share of drug market they have. In order to exculpate,
D has to prove that they could not have produced dose P’s mother
took. (Enterprise Liability – cost of doing business)
G. Proximate/Legal Cause
1. Proximate cause is related to fairness and justice, in the sense that at some point it
becomes unfair to hold a defendant responsible for the results of his or her negligence.
2. Theories on legal cause liability;
a. Injury to P is foreseeable (natural or probable) consequence of D’s unreasonable
(i) Expressed by Judge Cardozo in Palsgraf majority opinion
(ii) minority of jurisdiction use this definition
b. Even when P’s harm is not foreseeable, as long as P’s harm is a direct result of
D’s unreasonable conduct. (direct, unbroken natural sequence)
(i) Expressed by Judge Andrew in Palsgraf dissent.
(ii) majority of jurisdictions use this definition
(iii) where directness ends is arbitrarily set by each jurisdiction.
3. Unforeseeable Consequences
a. D is not liable for injury to unforeseeable P, even if D does negligent act
Ex: P in Palsgraf, according to majority decision, was an
unforeseeable P. Therefore, no duty & no breach.
b. Egg-shell skull: Take P as you find him – if P’s damages are unforeseeable but
directly resulting from D’s negligent conduct, D is liable. (Bartolone v. Jeckovich)
c. Unforeseeability in manner in which injury occurs does not relieve D of liability.
4. Intervening Causes
a. a force that takes affect after D’s negligence, and which contributes to P’s injury.
b. superceding cause if an intervening cause is sufficient to cancel D’s liability.
c. Foreseeability Rule: if D should have foreseen the possibility of the intervening
cause occurring, then D is nonetheless the proximate cause of P’s injury.
(i) Ex: D negligently runs over P. On the way to the hospital, ambulance w/
P is negligently hit by X, causing P more injuries. Then in the hospital, P is
again injured by negligent Dr. Three days later in hospital room, P is again
injured by nurse bringing P his food. D is proximate cause of P’s injuries
from his crash w/ D, X’s crash w/ ambulance, Dr.’s negligence. But, not for
injury with nurse – this is a break in the direct causal link, therefore a
superceding cause. Also, X is liable for injuring P in the ambulance and for
Dr. injury, and Dr. is liable for his negligence in ER.
d. Which consequences flow from the original negligence?
(i) is the injury of the same general kind as the original interest that was put
at risk by D?
(ii) is the chain of causation foreseeable and direct?
(iii) has the chain of causation been broken by superseding cause?
5. Acts by 3rd parties and Intervening Causes
a. If 3rd party’s conduct is criminal or intentionally tortious, it will be found to be the
superseding cause, and cancel D’s liability, except when;
(i) Criminal act is foreseeable
(ii) D has duty to protect P from criminal misconduct and fails to do so
(iii) D’s act destroys protection, which P has placed around his person or
property to guard against crime
(iv) D knows of 3rd party’s tortious intentions and exposes P to risk.
Watson v. Kentucky: D negligently spilled gas on road. Bystander lit
a cigarette which ignited gas, injuring P. Crt said if bystander acted
intentionally, then it would absolve D of liability (superseding cause)
but, if bystander acted negligent or inadvertently, then D cannot
escape liability, since this is type of harm foreseeable given D’s
negligent act of spilling gas. (Foreseeability Rule).
b. Rescuer – if D is rescuer who responds to P’s negligence, P is liable. Except;
(i) foolish/reckless rescuer.
(ii) Crts are divided re: professional rescuer
c. Suicide – if suicide (which is normally thought of as abnormal act which would
be superceding cause) results from D’s negligence & proof of direct cause and
reasonable foreseeability, then D is liable.
(i) D’s negligent acts upon P causes P to have “irresistible impulse” to
6. Public Policy and Proximate Cause
a. public policy can make D’s act proximate cause of harm, where otherwise
foreseeability & directness might be lacking.
(i) Host may be liable to P for serving alcohol to X, who then drives and
IV. JOINT TORTFEASORS
A. Joint and several liability
1. Each of several tortfeasors is liable jointly with the others for the amount of the judgment
against them, and that each is also individually liable for the full amount. P can collect from
any one of them or any group. There are 3 factual situations were this type of liability is
a. Tortfeasors acting in concert
(i) drag racing where just one hits another car.
b. Tortfeasors fail to perform a common duty to the plaintiff.
(ii) vicarious liability: master’s liability for servant’s act; employer’s liability
for employee’s act
c. Tortfeasors who acted independently to cause an indivisible harm.
(iii) injury during surgery where P does not know which Dr., nurse, ets
caused the harm. (Ybarra v. Spangard)
2. Issue comes up of how to proportion liability in comparative and contributory fault
systems, when D’s caused indivisible harm & at least 1 D is insolvent or unknown.
a. Comparative Negligence – D pays for the injury he/she caused, which can be less
than 100% of injury caused to P. [i.e. P might have also added to his/her own
(i) Pure comparative negligence: P’s recovery may become small, but is
never eliminated. In principle, a 95% negligent P can recover from a 5%
(ii) Modified: P’s recovery goes to zero at some point. There are two
variants: P is barred from recovering by; (a) 50%; the equal negligence of P
or (b) 51%; the excessive negligence of P.
(iii) Joint & Several liability is eliminated in jurisdictions that have Pure
b. Contributory Negligence – common law doctrine, where if P played any role in
his/her injury, then he/she could not recover at all from the D. This theory has given
way to comparative negligence which is much more fair & equitable. (VA, DC,
MD, NC & AL retain contributory negligence)
c. Should D who is 5% at fault bear full cost of injury to P, when D who caused
95% of harm is unknown or insolvent? Why should P bear that cost?
B. Satisfaction and Release of Joint Tortfeasors
1. Satisfaction of claim: acceptance of full compensation for injury
2. Release: surrender of P’s claim against 1 or all D’s; for complete, partial or no
a. If P recovers full damages from 1 D, then other joint & several Ds are discharged
from having to pay.
(i) P can only recover once – P cannot be unjustly enriched
(ii) D who paid full amount can then seek contribution/indemnity from others
b. But, if P only collects partial settlement from 1 D, then this is credited to what all
D’s owe P
c. Collateral Source Rule: if P collects from source, not including D’s, then this
amount is NOT credited to tortfeasors.
(i) this includes; worker’s comp., insurance settlements, etc.
3. At common law, if P released or got full satisfaction from 1D, then all D’s were then
released. But, this does not encourage settlements, which is what crts want, so this has been
changed in most jurisdictions.
a covenants not to sue where introduced to allow P to settle with 1 D, and thereby
not releasing other D’s.
(i) amount paid by settling D is credited to remaining Ds, though.
b. as long as made in good faith, crt would uphold these covenants
c. Crts tend to not uphold Mary Carter agreements, since they lack good faith &
subvert notion of fair trial – settlement w/ 1D, with condition that that D unite w/ P
against other Ds.
C. Contribution & Indemnity
1. If 1D pays more than his share of damages to P, then that D can seek
reimbursement/contribution from other tortfeasors.
a. Intentional tortfeasors may NOT get reimbursements from co-tortfeasors.
b. the co-tortfeasor which D seeks contribution from has to be in fact liable to P
2. Indemnity; complete shift (100%) of the responsibility from 1D to another
a. used when D is liable under vicarious liability, and co-tortfeasor is the one who
actually caused the harm or directed D, which caused the harm
b. used by retailer against manufacturer when retailer is liable for product defect.
D. Apportionment of Damages
1. Bruckman v. Pena: P was injured in one accident. P then is re-injured in another
accident soon after. P sued negligent D of 1st accident for all damages that resulted from
crashes. Crt has to apportion damages. Crt said that if P can show the his subsequent
injuries in 2nd crash were the proximate cause of the 1st accident, then D can be liable for
those injuries. But, this is the P’s burden of proof. If P cannot show this, then D can not be
held liable for additional injuries.
If P had sued just 2nd driver and injuries could not be apportioned, then that D
would be liable for the whole injury – “Take P as you find him.”
If P can’t show proximate cause of injury for 1st driver, then P could possibly
recover by adding this future consequences of 1st D’s act to the original injuries –
i.e. future problems due to injuries sustained in 1st crash.
V. DUTY OF CARE
A. Duty in General
1. There are times when an actor is not under obligation towards another to act w/
reasonable care and is not liable if his actions fall short of reasonable care and an injury
occurs as a result.
a. this is seem in Palsgraf decision
B. Failure to Act
1. In tort, a person is generally not liable for a failure to act, Except;
a. duty to rescue if D causes the harm
b. duty to continue rescue once commenced
c. duty per contract
c. when special relationship between parties creates a duty
Tarasoff v. Regents of UC: Duty to warn. Once a therapist (or other
professional w/ duty to client/patient) does in fact determine, or under
applicable professional standards reasonably should have determined that
a patient poses a serious danger of violence to others, therapist bears a
duty to exercise reasonable care to protect the foreseeable victim of
C. Eggshell Skull
1. No special duty in negligence arises for the D who has no knowledge of the special
vulnerability of P.
a. this is NOT the same as “take P as you find him”, when we’re talking about
consequences of D’s negligence.
b. knowledge is assumed on D’s part if vulnerabilities are apparent (i.e. pregnant
2. Once P makes his vulnerabilities known, D cannot plead ignorance
a. P also cannot impose special duties beyond those owed the general public by
making unilateral demands.
b. this is subject to statute requirements, like ADA.
c. once warned of P’s vulnerabilities, D must make P aware of all risks known to D
and not apparent to P and/or exclude P from obvious risks.
3. If D warns P of danger, and P undertakes actions nonetheless, P has assumed risk.
D. Mental Disturbance
1. Negligent Infliction of Emotional Distress
a. Where emotional distress, which is proximately caused by D’s negligence results
in definite and objective physical injury then D may recover.
b. Common law required some physical impact on P for negligent infliction of
(i) in order to be a hedge against fraudulent and frivolous claims.
(ii) provided an objective boundary for liability.
c. Thing v. La Chusa: P, mother, arrives at accident scene and sees her son who has
been injured. P sues driver who crashed into her son. Court notes that it abandoned
“zone of danger” rule which required that P to have been in actual risk of danger to
herself. Court states that foreseeability of injury is primary focus but: it sets out
arbitrary lines for limiting recovery:
(i) P must witness the injury.
*Park doesn’t like this one because some torts don’t need to be
witnessed to cause emotional distress.
(ii) P must be related by blood or marriage to victim.
*Park would prefer a standard that was geared to reasonably
(iii) P must suffer severe emotional distress, which was appropriate given the
D. Unborn Children
1. Majority of jurisdictions allow wrongful death actions for fetuses killed in utero, as long
as they were viable fetuses. Common law did not allow this, since they did not consider
fetus a person, even if viable.
2. Injuries suffered while a fetus are recoverable.
a. Procanik by Procanik v. Cillo: P was born w/ multiple defects. P’s mother was
not properly diagnosed w/ measles which caused P’s defects. Doctors were
negligent in diagnosing measles but did not cause P’s injuries, they just prevented
P’s mother from choosing to abort P w/ info of her measles. Crt will give P (child)
recovery for medical expenses, health care, etc. that P will need as he grows up. But
will not give P general damages for pain & suffering due to his wrongful birth &
impaired childhood because this opens up a can of worms re: morality & religious
beliefs which crt and jury should no undertake. (i.e. questions if it is better to have
been born with defects or better to not have been born at all).
It’s also important to point out that D’s (doctor’s) negligence did not lead
to P’s defects, just to P being born (i.e.) parents did not have opportunity
to abort P.
Wrongful life is a cause of action brought on by defective child which
claims but for D’s negligence child would not have been born. (not
recognized by many jurisdictions)
o In jurisdictions that allow wrongful life, pain & suffering is not
allowed because it’s too controversial.
VI. OWNER & OCCUPIERS OF LAND
A. Outside the Premises
1. Landowner must act reasonably to avoid injuries to persons or property outside their land
when they have notice of such a risk.
a. this includes reasonable & feasible inspection
b. and, controlling/inspecting natural hazards
(i) bringing unnatural hazards onto land brings rise to strict liability
1. General Rule: landowner has not duty to a trespasser.
2. Landowner’s duty to trespasser increases when;
a. trespasser is discovered,
b. the foreseeability of trespasser in areas of frequent trespass
(i) footpath or crossing,
(ii) although, this might not be feasible if area is extensive
c. if owner knows of trespassers and allows it, then trespasser are seen as licensees,
d. obvious dangers known to owner but not obvious to trespassers, then owner must
(i) a sign is sufficient
3. Attractive Nuisance Doctrine – duty to children
a. the danger does not have to be attractive or a nuisance, but if owner knows or
should know that dangerous item/condition on his property would attract trespassing
children, then owner has duty to protect those children from that danger by taking
(i) Reasonable precautions also depends upon the age of children, i.e. putting
up a warning sign would not protect a child that is too young too read., and
there are certain hazards that alone give warning, i.e. fire.
(ii) age range is about 0-14
(iii) doctrine only applies to serious hazards and does not impose strict
liability on owner.
1. Def: Invited guest to other’s home/property for purpose that benefits guest.
a. including social guests
2. Duty to licensees: owner does not owe a licensee any duty to inspect for unknown
dangers, but if owner know of a dangerous condition, she must warn the licensee of that
a. Baremore v. Elmore: (P was invited to D’s house. D’s son, who had mental
issues, attacks P on D’s property. P sued D for negligence for not protecting P while
he was on his property.) Crt ruled that P was a licensee, not an invitee, therefore, D
(homeowner) did not have higher duty to P. D just had duty to refrain from
wantonly or willfully injuring P, and to warn P of risks known to D but unknown to
1. Def: Invited guest to other’s home/property for purposes of benefiting or advancing
business of home/property owner.
a. includes guest/patrons to businesses
b. land open to public
2. Duty to invitees: owner owes an invitee a duty of reasonable inspection to find hidden
dangers. And, the owner must use reasonable care to take affirmative action to remedy a
a. Wilk v. Georges: If jury finds that conditions were unreasonable dangerous – a
condition which cannot be encountered with reasonable safety even if the danger is
known and appreciated – the owner of the premises is obligated to do more than post
warning signs, he must take reasonable and feasible steps to get rid of the danger.
(i) This same rule can be applied to cases where owner knows of criminal
behavior at his property which threatens leasees and their guests
3. Scope of invitation: if visitor’s use of the premises goes beyond the business purpose or
beyond the part of the premises held open to public, then that person goes from being an
invitee to being a licensee.
a. Factors in determining if status has changed;
(i) Is P within scope of invitation?, and
(ii) was P allowed to be in the space/area?.
*If scope of invitation is outside and P is not allowed to be in area,
then it’s trespass.
*If scope of invitation is outside and P is allowed in area, then he
becomes an licensee.
4. Public Policy
a. Rowland v. Christian: Crt says common law rule re: guests status (trespasser,
licensee, and invitee) should not determine liability since it does not reflect public
policy. The normal/general test of negligence should determine liability. This
includes, duty, breach, harm.
(i) only minority of jurisdictions have abandoned duty categories for guests
E. Leasor and Leasee (Landlord/Tenant)
1. Generally, leasee is treated as owner & bears those responsibilities when leasor transfers
land/property to leasee.
a. some jurisdictions, citing public policy, continue to hold leasor liable and impose
a general negligence standard on him.
2. Leasor is not liable to leasee and his/her guests, unless
a. when danger is known to leassor and not to leasee,
b. conditions dangerous to persons outside of the premises,
(i) including common areas
c. leasor actively conceals the risks
d. leasor knows land will be used for admission of public, then leasor has to inspect
e. leassor contracts to repair and/or leassor is negligent in making repairs.
Kline v. 1500 Mass Ave: Landlord has duty to use reasonable &
sufficient steps to mitigate harm to tenants/guests if landlord is
reasonably aware of criminal risk to tenants/guest. Landlord has duty
to maintain level of security as seen when tenants became residents,
since landlord is only one with power to act because he is in
possession of common areas of bldg, and that equals a duty.
Therefore, if criminal attack on tenants was foreseeable, and landlord
could have taken reasonable steps to increase security but he did not,
then landlord would be liable.
*Caveat: risk does not have to go down to 0%, landlord just has
to undertake reasonable precautions (taking into account costs of
precautions) that are reasonably expected to mitigate the harm.
*Landlord can impose extra costs on tenants for the security
A. Nominal Damages
a. Def: small sum of money awarded to the P in order to vindicate their rights, make the
judgment available as a matter of record to prevent D from acquiring prescriptive rights.
The amount awarded, as long as it is trivial, is unimportant.
B. Compensatory Damages
a. Def: amount awarded intended to represent the closest possible financial equivalent of the
loss or harm suffered by P, to make P whole again, to restore P to position the P was in
before the tort occurred.
C. Punitive Damages:
a. additional sum, over and above the compensation of P, awarded in order to
(i) punish the D,
(ii) to make an example of D, and to
(iii) deter D and others from engaging in similarly tortious conduct.
b. excessive punitive damages will undergo;
(i) reprehensibility test – how bad was D’s conduct/act?
(ii) ratio test – harm resulted v. damage awarded
(iii) proportionality – how would analogous conduct be treated in criminal law?
D. Special damages: are usually matters than can be proven, like hospital bills. And, to be
awarded these damages, P has to supply evidence to prove them.
a. any damages that P could have reasonably mitigated are not recoverable
E. General damages: are damages within the general competence of the jury to evaluate and do not
require special evidentiary proof. This can include non-economic injuries like pain & suffering,
reputational injury, loss of companionship, etc.
a. including hedonistic damages like “loss of enjoyment of life”
F. Wrongful death claims,
a. next of kin (wife, children) can not recover pain and suffering of the decedent, grief or
sorrow of the widow and next of kin, among others.
(i) Instead, the jury calculates what benefits of pecuniary (financial) value the
decedent might reasonably have been expected to contribute to the claimant. One of
these benefits can be the loss of the decedent’s love & companionship, though.
G. Future Damages:
a. P can collect for future damages and likely future damages
(i) loss of future employment
(ii) future medical bills & expenses
(iii) all are recoverable in “present value” of losses, though
G. Collateral source rule: As long as payment to P does not come from D or paid on D’s behalf,
these payments should not go towards reducing D’s liability. The windfall should go to the
innocent, not the negligent. P can also recover value of nursing care provided by spouse or friend.
(Montgomery Ward v. Anderson,).
A. Plaintiff’s Conduct
1. Contributory Negligence (VA, MD, DC, AL, NC)
a. complete defense, it serves to eliminate all of D’s liability, if P is found at all
b. In states have applied Comparative Negligence (where if D is found to be more
negligent that P, then D is still liable) do not allow Contib. Neg. defense
c. if D’s conduct was wanton, willful, and reckless, then P’s contributory negligence
is NOT a defense.
(i) also, contributory negligence is NOT a defense to intentional tort
d. D has the burden of proof that P was contributory negligent
e. Last Clear Chance: acts as a limit on contributory negligence defense
(i) if after P’s initial contributory negligence, D still had chance to avoid
harm to P, but does not take this opportunity, then D cannot claim defense.
2. Assumption of Risk
a. must have been reasonably informed, freely or voluntarily entered into and the
injury must be the same as that for which the risks were assumed.
(i) Public policy – may restrict party’s attempt to assume the risks. i.e.
worker’s can’t assume risks and violate OSHA standards.
(ii) a complete defense, except in comparative negligence jurisdictions, then
it goes towards proportioning of harm
b. serves to relieve negligent D of his duty to P
(i) Express – Contractual
(ii) Implied – by conduct
c. this doctrine is disfavored among crts
d. in order to assume risks, P must have capacity & full disclosure
(i) reasonably informed refers to an objective standard of reasonableness
3. Comparative Negligence
a. used in most jurisdictions
b. divides liability between P&D in proportion to their relative degrees of fault
(i) Pure comparative negligence: P’s recovery may become small, but is
never eliminated. In principle, a 95% negligent P can recover from a 5%
(ii) Modified: P’s recovery goes to zero at some point. There are two
variants: P is barred from recovering by; (a) 50%; the equal negligence of P
or (b) 51%; the excessive negligence of P.
c. Degree of culpability or causation determines what D is liable for under
comparative neg. – Prof. prefers causation.
B. Statute of Limitations
1. Statute of limitation on bringing suit re: injury starts when the injury occurs.
2. But, when injury is concealed or impossible to detect, the statute may be tolled until the
injury is discovered or reasonably should have been discovered.
a. Ex: If P got a rash on her hand from acid bath used in her employment but then it
cleared and then she did not make a case of it. Then, after 7 yrs, P develops skin
cancer on her hands which doctors attribute to the acid bath contact. Under this rule,
the statute of limitation would have started when the injury occurred since at that
time P was aware that she was injured & its actionable cause.
(i) Prof. thinks this rule is not fair.
a. expressed or implied
a. imposed by law – such as self-defense
3. Immunities (waning since it goes against purpose of tort law)
a. families: immunity in negligence but not intentional torts
(i) collusion if family members could sue on negligence
b. charities: no longer hold immunity since insurance is available
c. public officers
(i) POTUS has absolute immunity for official act but not private conduct
(ii) qualified immunity – POTUS staff, MoC, Police (all has to be within
d. federal & state governments: used to have complete immunity, now it’s qualified.
IX. STRICT LIABILITY
A. D must pay damages although D neither intentionally injured P nor failed to live up to the
objective standard of care that has traditionally been applied to negligence law.
1. Policy: imposes SL upon anyone who for his own purposes creates an abnormal risk of
harm to his neighbors, the responsibility of relieving against the harm when it does in fact
1. strict liability for wild animals;
2. animals known to be dangerous and unreliable
3. domestic animals if know to have vicious disposition
a. “fence out” statutes for cattle/livestock states
b. “fence in” statutes for urban area
C. Abnormally dangerous activities
1. “unnatural use of land”
2. factors crt considers in determining if abnormally dangerous; (per Rest 2nd § 520)
a. high degree of risk
b. harm which results is serious
c. risk cannot be eliminated by exercising reasonable care
d. activity is not common
e. activity is not appropriate for place it is carried out
f. danger outweighs the activity’s value to the community
a. nuclear reactor
c. crop dusting
d. pile driving
D. Limitations on Strict liability
a. abnormally dangerous activity and animal have to be proximate cause of harm
b. is the risk of harm, the same risk SL seeks to impose remedy for?
c. is the P abnormally sensitive?
Foster v. Preston Mills: Blasting by neighbors frightened minks to
eat their young, thus causing P to loose profits. Crt ruled this was not
the kind of risk which makes the activity of blasting ultra-hazardous.
d. Contributory Negligence is NOT a defense to Strict Liability.
e. P’s reasonable Assumption of Risk is a defense to Strict Liability.
X. PRODUCTS LIABILTY
A. Contemporary products liability law is a fusion of 3 doctrinal streams:
a. anyone who negligently manufacturers a product is liable for any injuries
proximately caused (foreseeability) by his negligence.
b. P can be a user, remote purchaser, & even bystander = “foreseeable victim”
(i) privity no longer a factor
2. Breach of Warranty,
a. a buyer of goods which are not as they are contracted to be may bring an action
for breach of warranty.
(i) express warranty: expressed claims by manufacturer
(ii) implied warranty: “fit for purposes for which they are sold”
* this protects buyers and foreseeable users
b. manufacturer is strictly liable for breach of warranty
3. Strict Liability. (Rest. 2nd 402A)
a. manufacturer/seller is strictly liable when an article he places on the market,
knowing that is to be used w/o inspection for defects, proves to have a defect that
Greenman v. Yuba Power Products: Crt did not consider negligence
or warranties when finding manufacturer liable. Crt focused solely on
strict liability. To establish liability all P needed to prove was that he
was injured while using the product in the way it was intended, & that
due to defect in design and manufacturing (of which P was not
aware), product was unsafe for intended use.
(i) “defective condition unreasonably dangerous”
(ii) retailer may also be strictly liable for defective product
* they can, in turn, seek indemnity from manufacturer
b. if a product is unavoidably unsafe, and its benefits outweigh it dangers, then
manufacturer will not be held strictly liable.
(i) Ex: vaccines, Rx drugs
(ii) State of the Art defense – measured by manufacturer knowledge at time
product is sold – crt will not find strict liability
c. P must show that defective product was the cause in fact and proximate cause of
B. A product is defective when, at the time of its sale or distribution, it contains a manufacturing defect, is
defective in design, or is defective because of inadequate instructions or warnings.
1. Manufacturing defect
a. Occurs where the particular item that injures P is different from the other items manufactured by
D, in a way that is unreasonably dangerous.
b. P does not have to show what caused the defect, only that the item was different
from the standard item produced by D.
c. Strict liability is imposed, even if D did everything reasonably
Rix v. General Motors: P claimed product has a design defect & a manufacturing defect and
that both caused harm.
2. Design Defect
a. all items produced by D are defective in design, and this defect caused injury
(i) often this has a negligence component in that P has to show that D chose a design that
posed an unreasonable danger.
(ii) in essence, P is claiming that D could have designed product to be more safe to have
avoided P’s damage – Alternative design
b. Types of Claims;
(i) Structural defects – P shows because of D’s choice of materials, the product had a
(ii) Lack of safety features – P shows that a safety feature could have been installed on the
product w/ little expense, that it is defective design not to install that feature.
c. State of the Art defense: D can rebut lack of safety features by showing that competitive products
similarly lack the safety feature
d. Apply risk/utility analysis to design defect problem;
(i) Utility of product; product’s importance/benefit to society v. risk involved in usage.
3. Unintended Uses & Design Defect
a. D may be liable for injury stemming from uses that are unintended
(i) Foreseeable misuse: If misuse is reasonably foreseeable by D, D must take at least
reasonable design precautions to guard against the danger from that use.
b. Regulatory compliance re: labeling still might leave D subject to liability
a. A duty to warn is another obligation placed on manufacturer
b. warning must give notice to the reasonable user, but also to the foreseeably careless or inattentive
(i) cost of warning is low
(ii) strong negligence component
c. in most jurisdictions, if D adheres to government safety warning standards, the seller’s compliance
w/ statute is sufficient defense.
d. a warning cannot “cure” a manufacturing or design defect
e. Instructions of proper use with identification of hazard or risk may suffice
f. adequacy of warning
(i) nature, gravity, and likelihood of known or knowable risks
Anderson v. Owens-Corning Fiberglass Corp: Is D liable for failure to warn of
unknowable risk of asbestos? In strict liability, D must warn of a particular risk,
known or knowable in light of the best scientific knowledge available. D’s
subjective reasonableness re: knowledge, belief & failure to warn is irrelevant.
C. Manufacturers, Retailers, and Seller
1. Occasional sellers (like a yard sale) or dealers in used goods are not held liable under products liability
a. Peterson v. Lou Bachrodt Chevrolet: D sold used car to X, who injured P in car accident. Crt
said D, being used car dealer is not liable for product defects, if any, from manufacturer. Strict
liability does not go to person outside of original marketing chain.
2. if retailer is found liable under strict product liability, retailer can indemnify manufacturer for whole cost to
XI. VICARIOUS LIABILITY
A. When party is made liable to P, not out of fault, but out of special relationship with negligent D.
1. Relationship included under vicarious liability are:
(i) within scope of employment
(ii) not independent contractors (i.e. newspaper delivery boy)
b. joint enterprise & joint venture relationship
c. family relationship
2. Enterprise theory: is D acting in furtherance of the duties he owes to his employer?
3. Control theory: Does the employer have a right to exercise, directly or indirectly control
over those activities as to make it fair to impute liability?
B. Vicariously liable D, can get money paid to P by indemnification of negligent D
1. Indemnity = full reimbursement