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                                    PROFESSOR AUSTIN
                                         FALL 1997
                                Gregg Cochran and Steven Ebert

        A. Fundamental Question in Torts: whether one whose actions harm another should be
            required to pay compensation for the harm done.
        B. Policies of Tort Law
                 1. Deterrence
                 2. Compensation
                 3. Moral Blameworthiness
                 4. Cultural or Behavioral Considerations
                 5. Judicial Administration
        C. Legal Realist Analysis (p. 36 supp): Using the doctrines as conclusory statements to
            justify the policy of the particular judge.
        D. Three types of torts
                 1. Negligence
                 2. Strict Liability
                 3. Intentional Torts

                                   PART I: NEGLIGENCE

I.      Negligence Principle
        A. General
               1. The tort of “negligence” occurs when D’s conduct imposes an unreasonable
               risk upon another, which results in injury to that other. The negligent tortfeasor’s
               mental state is irrelevant.
               2. Balancing: in determining whether the risk of harm from D’s conduct was so
               great as to be “unreasonable,” courts use a balancing test: if the risk of harm to
               another from D’s conduct is greater than the “utility” of that conduct, the risk is
               deemed “unreasonable.” (see BPL discussion below)
        B. Standard of Care—when a duty is owed is by D to P (i.e. when has a duty been
               1. Flexible Reasonable Person Standard
                        a) P must show 5 things to show that D did not act reasonably
                                 (1) What D did (D’s conduct)
                                 (2) How dangerous it was (Probability x Liability)
                                 (3) D’s knowledge of the danger or a showing that a reasonably
                                 prudent person in D’s position would have known of the danger
                                 (4) Availability of safer alternatives (Burden)
                                 (5) D’s knowledge of safer alternatives or D’s reasonable
                                 opportunity to know about safer alternatives
                        b) Under the classic formulation, a risk is unreasonable when the
                        foreseeable probability and gravity of the harm outweigh the burden to D
                        of alternative conduct which would have prevented the harm.
                        c) BPL Formula (J. Learned Hand) The formula was created in United
                        States v. Carroll Towing Co. Rough guide as to whether the D’s conduct
                        is so risky as to involve an unreasonable threat of harm to others.
                        d) BPL Defined:
                (1) Burden which the D would have had to bear to avoid the
                risk. Factors relevant in assessing this cost include:
                          (a) the importance or social value of the activity or goal
                          of which D's conduct is a part;
                          (b) the utility of the conduct as a means to that end;
                          (c) the feasibility of alternative, safer conduct;
                          (d) the relative cost of safer conduct;
                          (e) the relative utility of safer conduct; and
                          (f) the relative safety of alternative conduct.
                (2) L gravity of possible resulting injury
                (3) Probability that harm will occur from D’s conduct.
                (4) Therefore, the more serious the injury the less probable its
                occurrence need be for the D to be held liable for negligence for
                not guarding against it.
       e) Liability exists for D when B<P*L and D does not meet B.
       f) Difficult to quantify the elements of BPL (Posner)
2. Custom Standard—in determining whether conduct is negligent, the
customary conduct of the community in similar circumstances is
relevant/evidence of reasonable care, but is not conclusive.
       a) Exception: in medical negligence cases and certain other
       professionals, the customary conduct of such professionals conclusively
       establishes the standard of care
       b) Trimarco v. Klein. Holding: evidence of a business custom indicates
       D’s proper standard of care. Evidence of D’s failure to follow custom
       may show a failure to use reasonable care. Customary practice and usage
       need not be universal. The test for the role of custom is whether the
       average reasonable person would have so acted under the same or similar
       c) Significance of Custom
                (1) Reflects judgment, experience and conduct of many
                (2) Provides information on feasibility of a precaution
                (3) Provides way for others to learn safest method
       d) Benefit of custom to D
                (1) Provides instruction as to what to follow
                (2) Provides defense to a P’s assertion of a safer way to do
                something when the entire industry consistently does something
                (3) Large, fixed costs serve as a warning to the court and jury
                that, if the custom is to be changed, it could have a high social
       e) Reasons against making custom as standard
                (1) Custom does not in and of itself imply reasonableness
                (2) Custom may not evolve to meet changing circumstances,
                new technology
3. Statutory Standard
       a) Negligence per se
                (1) Cardozo says any breach of any statute is negligence without
                regard to purpose of statute. In deference to legislature—more

                         accurate gauge of populace than judges. Martin v. Herzog
                         (buggy w/o headlights).
                b) Statutory Purpose Rule
                         (1) Look into the legislative intent. For the rule to apply, the
                         case must have:
                                  (a) P has to be within class of persons that was to be
                                  (b) Harm has to be within the class of harm the statute
                                  was designed to protect.
                         (2) Tedla v. Ellman: (pedestrians walking wrong way on Sunrise
                         Highway) Outlines the statutory purpose rule. Statues should not
                         be allowed to wipe out common law rules and restrictions.
                         Moves away from negligence per se.
                c) Limited Exceptions
                         (1) Incapacity (Child, Physical Disabilities)
                         (2) Safety Reasons (Tedla v. Ellman)
                         (3) Emergency Situations: or it may be excusable because the
                         defendant was confronted with an emergency not of his own
                         (4) Ignorance of need: D was reasonably unaware of the
                         particular occasion for compliance (Ex.: brake failure causes
                         accident, w/o prior brake problem)
                         (5) Reasonable attempt to comply: Violation may be excused
                         because the D made a reasonable and diligent attempt to comply,
                         but was unsuccessful
                         (6) Greater risk of harm
                d) Evidence of Negligence (Minority view: NJ & Mass.): a statutory
                violation is never more than evidence of negligence which the jury may
                find is outweighed by other evidence of due care.
C. Reasonable Person
      1. Generally-- Knowledge, Experience and Perception. In judging D's conduct,
      D will be charged with what he actually knew and observed, and also with those
      things which a reasonable person would have known and perceived. And if D
      has superior intelligence, memory perception, knowledge, or judgment, he will
      be held to that standard. But D's deficiency in any of these attributes is ignored;
      he is still held to the standard of the reasonable (i.e. normal) person. Also
      reasonable person knows those things which at that time are common knowledge
      in the community—commonly known qualities, habits, and characteristics of
      human beings, animals, and things. The general reasonable person test is
      2. Activities Requiring Skill. If D chooses to engage in an activity requiring
      learned skills or certain knowledge, his conduct is measured against the
      hypothetical person who is reasonably skilled and knowledgeable in that activity.
      3. Physicians.
                a) In most jurisdictions, the standard of care of medical doctors (and
                sometimes other professionals) is conclusively established by the
                customary practice of reasonably well-qualified practitioners in that

                 b) Physicians or others who are certified specialists, or who hold
                   themselves out as specialists, are held to the standards of that specialty.
          4. Mental Capacity. In judging D's conduct, no allowance is made for
          deficiencies in D's mental capacity to conform to the "reasonable person"
          standard of care. The fact that D is mentally deficient, voluntarily intoxicated, or
          even insane does not matter. His conduct is measured against the reasonably
          prudent sane, sober and normal person. OBJECTIVE.
          5. Minors. Minors are an exception to the reasonable person standard.
                   a) If D is a minor, the test is what is reasonable conduct for a child of
                   D's age, intelligence, and experience under the circumstances.
                   b) But this exception does not apply to minors engaging in "adult"
                   activities requiring special skills and training, such as driving a car or
                   flying an airplane. OBJECTIVE.
          6. Physical Characteristics. The "reasonable person" standard is subjective to
          the extent that if D has a physical deficiency or disability, his conduct is
          measured against that of a reasonably prudent person with his physical
          characteristics. SUBJECTIVE
          7. Sudden Emergency. The fact that D is confronted with a sudden emergency
          which requires rapid decision is a factor which may be taken into account in
          determining the reasonableness of his choice of action. However, D may have
          been negligent in:
                   a) failing to anticipate the emergency or
                   b) creating the emergency;
          as to such negligence, this rule would not apply.
D. Judge and Jury—whether conduct was or was not negligent is a question of fact for
the trier of fact. Two principle topics:
          1. Burden of Proof. In reality, P has two distinct burdens:
                   a) Burden of Production—obligation upon a party to come forward
                   with evidence in order to avoid a directed verdict
                   b) Burden of Persuasion—when the case is such that a reasonable jury
                   can decide for either D or P, P must convince the jury that it is more
                   probable than not that his injuries were due to D’s negligence. This
                   concept is also known as “by the preponderance of the evidence.”
                   c) Two different approaches to province of judge and jury:
                            (1) In B & O RR v. Goodman, Justice Holmes gives more
                            limited role to jury by saying that when there is a certain
                            standard of conduct (e.g. statute), violation of that standard
                            should be determined by the judge.
                            (2) In Pokora v. Wabash RR Co., Justice Cardozo said standards
                            of prudent conduct are declared at times by courts, but they are
                            taken over from the facts of life. Instead of having a standard
                            conduct, it is better for the jury to decide the factual context and
                            determine negligence. Limits Goodman case.
E. Proof of Negligence
          1. Components of Evidentiary Proof of Breach Under Flexible Standard
          (AUSTIN’S HANDOUT)
                   a) What the D did (D’s conduct);
                   b) How dangerous it was (PL);

        c) D’s knowledge of the danger or a showing that a reasonably prudent
         person in D’s position would have known of the danger (foreseeability);
         d) Availability of safer alternatives (B);
         e) D’s knowledge of safer alternatives or D’s reasonable opportunity to
         know about safer alternatives
2. Constructive Notice—a defect must be visible and apparent and must exist
for a sufficient length of time prior to the accident to permit D’s employees to
discover and remedy it (Negri v. Stop and Shop).In both Negri and in Gordon v.
American Museum of Natural History, constructive notice was established by
other evidence and the issue was whether P’s had presented sufficient evidence
on the issue of causation insofar as P’s failed to specify which step they had
fallen on and what condition had caused them to slip.
3. Res Ipsa Loquitur (RIP) (Kionka 143, CB 80, EM 113, LL 14)
         a) Three elements
                  (1) The accident bespeaks negligence—in the ordinary course
                  of events, P's harm would not have occurred unless D was then
                  and there negligent, then the jury is instructed on res ipsa
                  loquitur and may infer that D was negligent
                  (2) Caused by an agency or instrumentality under exclusive
                  control and scope of duty of D—P’s injury was caused by an
                  instrumentality or condition which was under D's exclusive
                  management or control at the relevant time(s)
                  (3) No voluntary action or contribution by P
         b) When Used
                  (1) Only when issue of negligence and not strict liability,
                  because purpose of RIP is to produce circumstantial evidence of
                  negligence and having treated P as having produced enough
                  evidence of negligence to get to jury.
                  (2) Only when indirect evidence of negligence.
         c) Effect or impact of RIP
                  (1) Sanctifies the use of a particular kind of circumstantial
                  (2) Allows P to meet burden of production to meet the demurrer
                  standard (i.e. get past zone 1)
                  (3) Burden of production: In a minority of states (including PA
                  and CA), burden of prod is automatically shifted to D, which
                  therefore constitutes a presumption of D’s negligence, thus for D
                  to win, he must come forward with rebuttal evidence
                  (4) Burden of persuasion: in a
         d) RIP as related to Civ Pro:
                  (1) MAJORITY of jurisdictions: RIP assists P in moving
                  beyond demurrer stage. As long as P establishes a prima facie
                  case of RIP, they can survive demurrer.
                  (2) MINORITY of jurisdictions: RIP shifts burden of production
                  to D. D has burden of producing a level of evidence such that a
                  reasonable jury could find for D.
                  (3) MINORITY OF MINORITY: burden of persuasion shifts to
                  D. D must prove beyond a preponderance of evidence that D
                  isn’t liable.

                e) Byrne v. Boadle—early case establishing RIP generally.
                f) Ybarra v. Spangard—modified third element (exclusive control)
                  such that exclusive control now includes within the scope of duty of D.
                  In Ybarra there were multiple D physicians, nurses and hospital.
                  Although the negligence couldn’t be attributed to one particular D, they
                  all had a duty to P to meet level of due care, and they did not meet.
                  Therefore, for a D to be liable under RIP, the instrumentality does not
                  have to be within the exclusive control of that particular D.
                           (1) Special relationship—in Ybarra the multiple Ds had an
                           integrated relationship as professionals for the patient’s safety.
                           Where the multiple Ds are strangers to each other and have only
                           an ordinary duty of care to P, RIP has generally not been allowed
                           merely upon a showing that at least one of them must have been
                           negligent. (e.g. two hunters shoot P, but don’t know which gun
                           caused the injury
                           (2) Substitutes “any control” for “exclusive control” because:
                                   (a) Patient is unconscious
                                   (b) The doctrine of respondeat superior—the superior is
                                   responsible for the actions of his agents
                                   (c) Defendants could cover each other and hence, only
                                   by shifting the burden of production, could the truth
                                   come out
F. Medical Malpractice—courts have required that specialized knowledge and skill
must be taken into account. Although the law has thus imposed a higher standard of care
in doctors, it has tempered the impact of that rule by permitting the profession to set its
own legal standards of reasonable conduct. In a med. mal case, the question of whether
the D acted in conformity with the common practice within his profession is the heart of
the suit. Good Results not Guaranteed—professional not normally held to guarantee
that a successful result will occur.
         1. Standard of Care = Customary Practice
                  a) Locality Rule: standard of care is determined by custom and usual
                  practice of reasonably well qualified similar professionals in that
                  geographic locality or in the same or similar localities. Recently,
                  however, there has been a little bit of a retreat from this rule. Tends not
                  to apply to specialists, and even in some cases a national standard may
                  supercede the locality.
                  b) Specialists—held to the standard of that particular specialty which is
                  above that of doctors at large.
                  c) Differing school—D must be judged by reference to the beliefs of
                  the school that he follows as long as it’s a legitimate school; e.g.
                  chiropractic, osteopathy
                  d) Novice—one who is just beginning the practice of her profession is
                  nonetheless ordinarily held to the same level of competence as a member
                  of the profession generally irrespective of her inexperience.
         2. Proof of Negligence
                  a) Experts: In most cases involving a claim of professional negligence,
                  P will be unable to establish a submissible case without expert testimony
                           (1) the relevant standard of care,

                (2) that D's conduct did not conform to that standard, and
                (3) that there was a causal relationship between D's breach and
                  P's injury.
         This is often a difficulty burden because of professionals’ unwillingness
         to testify against each other.
         Jones v. O’Young—(infectious disease specialist allowed to testify
         against surgeons who treated an infected leg). Whether the expert
         witness is qualified to testify is not dependent on whether he is a member
         of the same specialty or subspecialty as D, but rather, whether the
         allegation of negligence concerned matters within his knowledge or
         b) Res Ipsa Loquitur
                  (1) Common knowledge RIP—lay person could identify the
                  wrong as negligence (e.g. amputates wrong leg)
                  (2) Expert RIP--Sometimes an expert witness cannot testify to
                  an opinion as to exactly what the defendant did that was
                  negligent, but can testify that the adverse result would not have
                  occurred if the defendant had exercised ordinary care.
                           (a) Connors v. Univ. Assoc. the case allows the jury to
                           be educated by experts and then to apply that standard
                           within the RIP framework (retractors in surgery caused
                           leg problem).
3. Informed Consent—A professional is required to make a full disclosure of
the risks of a proposed treatment and give the patient the opportunity to consent
to the treatment after the patient’s knowledge of such risk.
         a) Professional standard: doctors must disclose all inherent risks in
         the proposed treatment which are sufficiently material such that a
         reasonable patient would take them into account in deciding whether to
         undergo the treatment. Things to consider:
                  (1) Reasonable patient rule:
                           (a) Define nature of risk and likelihood of occurring
                           (b) Whether probability of that type of harm is a risk
                           which the reasonable person would want to consider
                  (2) Elective v. necessary treatment
                  (3) What if doctor mentions something but patient doesn’t
                  totally understand. Who has responsibility for making sure it’s
         b) Exceptions: doctors can not make a full disclosure when
                  (1) they believe the patient’s well-being would be disturbed by
                  knowledge of such disclosure
                  (2) emergency situations
                  (3) E.G. Korman v. Malin (potential scarring after breast
         c) Causality—in order for P to prove proximate cause in the event that
         the physician didn’t give informed consent, the P must show that he
         would have probably declined the treatment had full disclosure been
         made. Standard of proof can vary, however, between jurisdictions
         (reasonable patient vs. this patient)
4. Doctors and Deference:

                      a) Reasons for deference for establishing liability
                            (1) Education
                            (2) Moral obligation to heal
                            (3) Judges and lawyers have deference for professional
                              (4) Serious risks involved, no guarantee of outcome
                              (5) Group notion-“caste” commitment to monitor and discipline
                              each other.
                      b) Reasons for non-deference:
                              (1) Doctors don’t want to enforce rules against one another
                              (2) Variation in education and skill
                              (3) Medicine is still a business in which doctors have
                              monopolistic control
                              (4) False expectations
II.   Duty to use Due Care
      A. Physical Injuries
              1. General-- In general, D has a duty to exercise reasonable care to avoid
              subjecting others (and their property) to unreasonable risks of physical harm.
              Courts use the concept of “duty” in a highly conclusory manner; similar to
              proximate cause; i.e. courts can use either of these if they wish to avoid allowing
              P to recover.
              2. Obligation to others—Generally NO AFFIRMATIVE DUTY TO
              RESCUE. (§314 Restatement)
                      a) Policy Reasons for no duty rule
                              (1) Interferes with individual autonomy and freedom to contract
                              (2) Runs against self-reliance and self sufficiency
                              (3) Gives freedom to determine time, skill, and other resources
                              (4) Legally impractical and difficult to administer
                              (5) Too high a burden on individuals
                              (6) Invites risky behavior and inefficient rescue attempts, i.e.
                              leave it to the experts
                              (7) Shouldn’t have religious morality in the law
                      b) Policy reason against no duty to rescue (Good Samaritan laws)
                              (1) Unit of analysis should be community rather than individual
                              (2) Should have morality in the law
                              (3) Forced rescues by amateurs, can be efficient in some
                              situations; see Ames rule infra.
                              (4) Since resources are social, then we can apply that to rescue
                              (i.e. we can tax your dollars, so we can tax your time and
                      c) Ames’ Limited Duty Rule: required to try to save another from
                      impending death or great harm when able to do so with little or no
                      inconvenience to oneself. If don’t act in this circumstance, should be
                      held criminally and tortiously liable. (NOT USED IN ANY
                      d) Limited exceptions to NO DUTY rule. A person may be under a duty
                      to rescue:
                              (1) If there’s a Special relationship

(a) Social host—SR exists only if host created
circumstances that deprived the guest of the normal
opportunities to protect himself. In Harper v. Herman,
court said superior knowledge of dangerous condition
(shallow water) by itself in absence of duty to provide
protection is insufficient to establish liability. Host
didn’t do anything to impair guests ability to protect
(b) Common carriers and Innkeepers
(c) Owners Occupiers of Land—see infra
(d) Companions engaged in common undertaking. In
Farwell v. Keaton, (friend doesn’t assist injured friend
after fight):
         (i)      With regard to companions on a social
         venture, implicit in this situation is the
         understanding that one will render assistance to
         another when he is in peril if he can do so
         without injuring himself.
         (ii)     Once the actor take charge of a helpless
         person; i.e. once performance of assistance has
         begun, there is no doubt that there is a duty of
         care. See next (2).
(e) Where the actor takes charge of a helpless person
(voluntarily undertakes to rescue). (See also Farwell)
above. When an actor takes charge of a helpless
individual is subject to liability caused by:
         (i)      The failure of the actor to exercise
         reasonable care to secure the safety of the other
         while within the actor’s charge or
         (ii)     The actor’s discontinuing aid or
         protection makes the injured person worse off
         than before the actor’s involvement.
(f) Where the actor’s prior conduct is found to be
dangerous—when an actor realizes or should have
realized that he created an unreasonable risk of causing
physical harm to another, he has a duty to exercise due
care to prevent the risk from occurring even though at
the time the actor had no reason to believe that his act
would create such a risk. (Dalkon shield IUD—
physician didn’t warn her about newly discovered
(g) Where another has been harmed by the actor’s
conduct (irrespective if actor’s conduct was negligent).
If the actor knows or has reason to know that his conduct
caused bodily harm to another that could make him
helpless and in danger of future harm the actor has a
duty to exercise reasonable care to prevent further harm.
(h) Promise to assist. Traditionally, a mere promise to
give assistance unaccompanied by any overt act was
insufficient to create a duty. Recently, though, numerous

                         courts have utilized the concept of promissory estoppel
                         from contracts to torts to incur a duty based on reliance
                         of a promise alone.
                (2) Preventing assistance by others. When someone
                intentionally or negligently prevents a third person from giving
                aid to another when such aid is necessary to prevent physical
                harm to the injured party, then the person is subject to liability.
3. Obligations to Control the Conduct of Others
      a) General Rule: Certain relationships carry with them a duty by D,
      the dominant or custodial member, to use reasonable care to regulate the
      conduct of
                (1) the person within his custody or control so as to protect third
                persons or
                (2) third persons so as to protect the person in his custody or
      b) Tarasoff v. Regents of Univ. of CA. Duty to Warn. D psychologist
      did not inform P that client had threaten to kill their daughter. RULE: If
      a therapist determines, or reasonably should have determined, that a
      patient imposes a serious danger of violence to others, he has a duty to
      exercise reasonable care to protect the foreseeable victim of that danger.
      Court used the following considerations:
                (1) Foreseeability of harm to P (must have a particularly
                identifiable P)
                (2) Degree of certainty of injury
                (3) Closeness of link between D’s conduct and injury
                (4) Moral blame attached to D’s conduct
                (5) Policy preventing future harm
                (6) Burden to D and consequences to community of imposing a
                duty to exercise care with resulting liability (BPL).
      Must have a balance of interest test between confidentiality and public
      safety and violence.
      c) Vince v. Wilson. Negligent Entrustment. Grandmother gives money
      to knowingly incompetent nephew to buy car). RULE: One who supplies
      a chattel to an individual who, because of their youth, inexperience, or
      otherwise, would use the chattel in a manner causing unreasonable risk
      of physical harm to himself and others, then the supplier is subject to
      liability for physical harm resulting. Not limited to when D is owner or
      has right to control the instrumentality entrusted. Seller of vehicle in this
      case is also potentially liable because they knew of alcohol problem and
      lack of license.
      d) Kelly v. Gwinnell. Duty of Social Hosts to control others. Social
      host D supplies drinks to drunk driver. D is liable. Case decided on
      policy to reduce drunk driving that you are liable for providing excessive
      liquor in a situation with significant contact (drunk was single guest, as
      opposed to big party.) Greater wrong is to other injured motorist who can
      receive compensation through homeowner’s insurance of the host.
4. Landowners and Occupiers
      a) Definitions/RULES:

(1) Licensee—a person who has a privilege to enter or remain
on D's land, but is not an invitee. Has consent but no business
purpose. Primarily social guests. RULE: licensee takes premises
on same footing as owner, hence, when owner knows of
dangerous condition which the owner should reasonably
anticipate that the licensee may not discover, then licensee must
be warned. However, owner does not have a duty to inspect for
unknown dangers. General duty to warn includes dangers arising
from both artificial and natural conditions.
(2) Invitee—individuals that go onto land to conduct business,
either directly or indirectly, with owner, or people who go onto
land held open to public. They reasonably expect premises have
been made safe for them. Includes incidental visitors (e.g. casual
shopper) RULE: owner has a duty of reasonable inspection to
find hidden dangers (don’t have to find everything) and
affirmative action to remedy.
(3) Trespasser—enters without privilege to do so. General
RULE: D under no duty to
         (a) exercise reasonable care to make premises safe for T
         or to warn T of hidden dangers, or
         (b) carry on activities on the premises so as not to
         endanger T
         (c) EXCEPTIONS:
                  (i)      D cannot commit an intentional tort
                  (ii)     Frequent trespassers on limited area—
                  when D knows or should have known that Ts
                  constantly intrude on a limited area, then D is
                  subject to liability to T if D fails to exercise
                  reasonable care in:
                           (a) conducting active operations on the
                           premises which create a risk of serious
                           bodily harm to T (i.e. make premises
                           safe), or
                           (b) warning T of a dangerous artificial
                           condition which D has reason to believe
                           that T will not discover and which
                           creates a risk of serious bodily harm.
                  (iii)    Discovered trespasser—once D
                  discovers presence of T on his land, D must
                  exercise reasonable care for T’s safety.
                  (iv)     Trespassing Children—attractive
                  nuisance. Possessor is subject to liability for
                  harm to children trespassing caused by artificial
                  conditions if:
                           (a) Likelihood of trespass
                           (b) Danger (unreasonable risk)
                           (c) Children ignorant of risk
                           (d) Utility (benefit of maintaining or
                           eliminating risk must be slight compared
                           to risk)
                                       (e) possessor fails to exercise
                                       reasonable care to eliminate the danger.
                       (d) Cases:
                              (i)       Carter v. Mckinney (slip and fall of
                               bible study participant at fellow churchman’s
                               home). Homeowners did nothing more than give
                               permission to limited class of persons to enter
                               their property, hence they’re social guests
                               (licensee) because they were visitors that were
                               invited to the property; however, the owner did
                               not receive any material benefit, and it was not
                               for the public at large, so not invitee. Since they
                               were licensees, D had no duty to protect him
                               from unknown dangerous condition.
                               (ii)     Rowland v. Christian (hand injury from
                               broken faucet to social guest in home of D)
                               rejected licensee/invitee distinction and went
                               with general negligence principles. RULE:
                               where occupier of land is aware of concealed
                               condition involving, in the absence of
                               precautions, an unreasonable risk of harm to
                               those who come into contact with it, and is
                               aware that a person on the premises is about to
                               come into contact with it, then owner is
                               negligent if they fail to warn or repair. Not
                               (iii)    Williams v. Cunningham Drug Policy
                               considerations make court hold that merchant
                               does not owe duty of police protection to
                                        (a) Merchant cannot control criminal
                                        environment in community
                                        (b) Merchant is not insurer of safety of
                                        invitees for things beyond his control
                                        (c) Merchant shouldn’t have to do more
                                        than what police/government required to
                                        (d) Shouldn’t shift financial loss caused
                                        by a crime from one innocent victim to
                                        (e) Duty would be inevitably vague
                                        (f) Providing security guards is
                               However, with prior similar incidents—most
                               jurisdictions may find a duty to take some safety
5. Intrafamilial Duties
       a) Spousal suits. Common law courts barred spouses from suing each
       other for purposes of maintaining spousal harmony. Virtually all
       remnants of spousal immunity have disappeared.

                b) Parent-child suits. Intentional harm suits against parents almost
              always allowed. Negligence more complicated.
                       (1) Holodook: parent can’t be sued for negligent supervision.
                       Not extended to brothers, sisters, step parents or grandparents.
                       (2) Zikely v. Zikely. Parent accidentally put child in scalding
                       water. Parents are exempt from liability in cases of negligent
                       supervision. Reasons for not imposing negligence:
                                (a) Keep judiciary out of family
                                (b) Prevent fraud
                                (c) Prevent 3rd party apportionment problems
                                (d) Keep judiciary from dictating parental supervision.
                       (3) Parents’ religious beliefs must yield to accepted medical
                       practices if jeopardizes life of child.
      6. Governmental Entities
              a) Generally no municipal duty to provide police protection to citizens.
              Riss v. City of New York—P (who had lye thrown in her eye from
              stalker’s agent; P did not recover bc court didn’t think they should dictate
              where municipality allocates resources).
              b) Exception: where there is a “special relationship” between victim
              and police. Elements from Cuffy:
                       (1) Assumption by municipality of affirmative duty to act on
                       victim’s behalf. De Long case court took a 911 operators
                       assurance that help was being sent “right away” as the
                       assumption of a duty to respond with due care to victim’s call for
                       (2) Knowledge of harm that could result from inaction
                       (3) Direct contact between municipality and victim.
                       (4) Victim’s reliance on municipality’s undertaking
                       [However, in the event that someone calls on behalf of a victim,
                       it cannot be established without proof that the injured party had
                       direct contact with municipalities agents and relied on the
                       municipality’s assurances.]
B. Nonphysical Injuries
      1. Emotional Harm. As to liability for negligently-caused emotional distress,
      the law distinguishes the following fact situations:
              a) If D's negligent conduct results in any impact, however slight, with
              P's body, all courts will allow that impact to support liability for P's
              emotional distress resulting from the same negligent conduct.
              b) If D's negligent conduct threatens (but does not result in) bodily
              harm (impact) to P, most courts will allow P to recover for bodily harm
              resulting from the fear, shock or other emotional disturbance caused by
              his presence in the zone of danger. KAC v. Benson (HIV+ doctor who
              operated on P) To recovery for emotional harm, P must show she was
                       (1) Within a zone of danger of physical impact
                       (2) Reasonably feared for own safety
                       (3) Suffered severe emotional distress with attendant physical
              c) Bystander Rule

               (1) General Rule: If P is not himself in the zone of danger, but
             suffers emotional distress as a result of witnessing a shocking
             event in which D's negligent conduct threatens or causes
             physical harm to a third person, most courts have refused to hold
             D liable to P.
             (2) Exceptions: A few courts, following Dillon v. Legg
             (Cal.1968), have allowed P to recover in such situations,
             provided P can prove (the following are the rule from Portee v.
                      (a) Death or serious physical injury
                      (b) Marital or intimate family relationship
                      (c) Observation of the death or injury at the scene
                      (d) Resulting severe emotional distress
             (3) Johnson v. Jamaica Hospital. Parents could not recover for
             emotional distress from hospital who was caring for their infant
             when she was kidnapped. Court said parents were not within the
             zone of danger, nor were they bystanders.
     d) Mishandling of Corpses. Gammon v. Osteopathic Hospital.
     Recovery allowed for negligent mishandling of corpse.
     e) Erroneous death notification of loved one.
     f) Reasons to treat emotional harm differently than physical:
             (1) More subjective and harder to measure
             (2) More difficult to prove
             (3) More susceptible to fraud
             (4) Multiple sources—hard to assign guilt
             (5) Hard to limit scope of liability
             (6) Stout hearted men
             (7) Too many plaintiffs
     g) Possible resolutions to these problems:
             (1) Have an expert testify
             (2) Use reasonable person standard and let jury decide
             (3) Look at physical manifestations
     h) Loss of consortium
             (1) Marital. The relationship between spouses is so special that
             tortfeasor owes money to spouse of the injured. Initially only
             given to husband, now given to both. So can sue for emotional
             harm for loss of consortium.
             (2) What if unmarried long term couple? Recovery generally
             not allowed; does not parallel marital relationship even if
             significant and long-lasting.
             (3) Parents recovery where child injured. Parent can be
             entitled to loss of services, earnings and medical expenses of
             minor child. Increasing jurisdictions are allowing recovery for
             loss of companionship.
             (4) Child recovery where parent injured. Traditionally not
             allowed, some courts have begun allowing this.
2. Wrongful Birth and Wrongful Life
     a) Wrongful Birth: when D's negligence results in the birth of an
     unwanted child who is physically or mentally defective. Actions brought

         by the parents of such children for their damages (including damages for
         the ordinary and extraordinary costs of caring for such children and their
         mental distress) are usually referred to as wrongful birth claims. Most
         courts now allow recovery for wrongful birth. Some courts limit
         damages to the parents' pecuniary losses, but others now award damages
         for their emotional distress as well. Greco v. US : P mother wanted to be
         sterilized. D physician negligently performed sterilization. Later, P
         becomes pregnant and physician fails to diagnose and inform parents that
         child might be deformed. Child born. P claims but for D’s negligence of
         diagnosing deformed baby, she would have had an abortion. Wrongful
         birth action brought. P was awarded damages for emotional distress.
         Also awarded difference between medical expenses of raising deformed
         child and cost of raising healthy child. Court rejected baby’s wrongful
         life claim.
         b) Wrongful Life: Actions brought by the deformed child for his
         damages (e.g., pain, suffering, disability, disfigurement) are called
         wrongful life actions. So far, almost all jurisdictions have rejected
         wrongful life claims. A few courts have allowed such claims, the
         damages being limited to the child's extraordinary medical expenses (to
         the extent not recovered by the parents).
         c) Child born alive. If someone tortiously causes harm to an unborn
         child and the child is subsequently born alive, the tortfeasor is subject to
         liability for the harm caused to the child. (e.g. DES, physical assault)
         d) Faulty Contraception: When D's negligence fails to prevent
         conception resulting in the birth of an unwanted but healthy child, most
         courts allow the parents to recover, but their damages are limited to the
         cost of pre-natal care and delivery and the associated pain and other
         general damages. Some courts have allowed, in addition, child-rearing
         expenses, most (but not all) requiring that such expenses be offset by the
         accompanying financial and emotional benefits to the parents.
3. Economic Harm. Traditionally, no recovery allowed. But in People Express
v. Consolidated Rail (RR negligently caused fire; P was airline with nearby
operation that was forced to closed; P beat SJ), court said that a D owes a duty of
care to take reasonable measures to avoid risk of causing economic damages to
particular P or Ps comprising an identifiable class. For a P to get recovery:
         a) Injury to P must be relatively foreseeable
         b) Relatively few Ps will be permitted to sue
         c) D’s conduct must be relatively blameworthy
4. Effect of Contract—traditional common law has been much more willing to
find that where a K exists, there has been a tort if D was guilty of misfeasance
rather than nonfeasance.
                   (1) Party to contract/Nonfeasance: generally, failure to
                   perform a promise will not result in a tort claim, with the
                   following exceptions:
                            (a) Common carrier/public utilities. If a common
                            carrier or utility fails to honor a contract with a member
                            of the public, then they will be held to have acted

                                        (b) Misrepresentation. If a D makes a promise and has
                                          no intention to perform, then D is liable for the tort of
                                (2) Party to contract/Misfeasance. If a D starts to perform and
                                fails to complete, he is liable for a tort.
                                (3) Non party to contract/Nonfeasance: D is not liable for
                                nonfeasance. See Moch (city water utility had insufficient water
                                pressure to put out fire for private party who was nonparty to K
                                by which utility was to provide water). Much criticism, but still
                                (4) Non party to contract/Misfeasance: plaintiff’s chances for
                                recovery are substantially better. Nonetheless, courts have
                                historically been reluctant to allow recovery on the misguided
                                notion that tort recovery is barred because there is not “privity of
                                contract.” In Strauss, citywide blackout, Con Ed had K with
                                landlord to light common areas. P was nonparty to K and injured
                                because of dark hallway. Court said no privity of K here (like
                                Moch). Bottom line though is that policy reasons (don’t want
                                utility to have such unlimited liability because rates would be too
                                high) dictate who wins. The court did say, though, that there are
                                situations where there’s no privity, yet D liable, but in those
                                cases, injury must be within the orbit of duty, i.e. foreseeable.
       C. The Way Judges can define Duty (supp. P. 34-35)
               1. No duty
               2. If there was a duty, it was not owed to the particular P.
               3. If there was a duty owed to particular P, it was not designed to protect
               the interests of the injured P.
               4. If there was a duty owed to particular P, and designed to protect the
               interest which was injured, it was not designed to give protection against the
               hazard which was involved (i.e. majority opinion in Palsgraf).
               5. P was himself at fault through assumption of risk or contributory
               6. Even though a judgment is warranted in favor of P at all these above
               points, yet there is no evidence that D violated his duty to P.
               7. There is no evidence of a causal relation between the violation and the
               8. Lack of compensable damages.
III.   Cause in Fact
       A. Basic Doctrine
               1. General Rule: Cause in fact is a question of fact, requiring that
                       a) the injury would not have occurred "but for" D's conduct (the "sine
                       qua non" rule), or
                       b) D's conduct was a substantial factor in bringing about the injury.
               2. Proof
                       a) General: Most cause in fact problems are nothing more than fact
                       questions involving the adequacy of P's circumstantial evidence linking
                       P's injury and D's tortious conduct.
                       b) If 2 or more possible causes exist, CIF can be inferred with
                       reasonable certainty; doesn’t have to be only cause. Stubbs v. City of

              Rochester (typhoid in water supply; typhoid can be caused by numerous
              factors, but P did not have to disprove all the factors) CIF is a fact-value
              c) Falcon v. Memorial Hospital. (Physician did not put in IV for patient
              with amniotic fluid embolism; if IV had been in, patient would have had
              a 37.5 % increased chance to survive). Standard for P: must prove more
              probably than not that D reduced the opportunity of avoiding harm. P
              won here. This rule only applies to medical cases.
              d) Wolff v. Kauffman (P tenant dead at bottom of D landlord’s unlighted
              common stairs) Can’t show that absence of light was cause in fact,
              because could have also other explanations; in absence of proof of D’s
              e) Dillon v. Twin State Gas & Electric (kid falls off bridge and is
              electrocuted by D’s power line; would have probably died anyway). D is
              only responsible for that amount of harm for which D was the “but for”
              cause. D liable for electrocution from wire minus the injuries from the
              impact. Since boy would’ve died from the impact anyway, D not liable
              for anything.
              f) Mauro v. Raymark (employee exposed to asbestos, but no cancer
              developed sues for “enhanced risk” of getting cancer, as well as
              emotional damages, medical costs for surveillance, etc.) Court allowed
              surveillance costs and emotional harm, but denies recovery for enhanced
              risk because:
                       (1) Too speculative
                       (2) Too much potential litigation
                       (3) Still a future opportunity to sue if gets cancer.
B. Multiple Defendants—when two or more tortfeasors act, either:
      1. If D’s act concurrently or in concert to produce a single injury, they may be
      held jointly and severally liable: each D is responsible for totality of injury from
      a damages standpoint. Whether divisible or indivisible is irrelevant.
              a) Two hunters acting in concert fire and hit P’s decedent, one in heart
              one in brain such that either bullet could’ve killed P’s decedent and
              therefore no way to determine who caused the death.
      2. If not acting in concert, it matters whether or indivisible:
              a) Divisible: Several.
              b) Indivisible: joint and several.
              c) Seemingly Indivisible (we made up term): Difficulty of apportioning
              harm (e.g. multiple river polluters whereby you can’t determine exact
              amount of pollution they dumped in river, but can estimate based on
              productive output) courts will try to find some mechanism to divide the
                       (1) Market Share Concept (Hymowitz v. Eli Lilly & Co.):
                       Multiple national drug companies produced a pill that is
                       chemically generic. Although the drug companies acted
                       independently and it is basically impossible for a P to determine
                       which company’s pill they ingested. Therefore court used the
                       market share concept to have each D drug manufacturer to be
                       severally liable for a percentage of all injuries based on their
                       market share sales of the product.

              3. Divisible Harm: When the harm of the defendants can be apportioned
             between and among the defendants.
             4. Indivisible Harm: When the harm of the defendants can’t be apportioned
             between and among the defendants and hence joint & several liability.
IV.   Proximate Cause
      A. Generally
             1. Rules of proximate or legal cause limit D's liability to persons and
             consequences which bear some reasonable relationship to D's tortious conduct.
             Whether and how proximate cause rules shall be applied is a question of law for
             the court. Proximate cause rules can be grouped into two categories:
                     a) unforeseeable consequences
                             (1) Majority view: D’s liability from his tortious activity is
                             limited to the foreseeable
                                      (a) Consequences; AND
                                      (b) Persons within the zone of danger
                             (2) Austin way of saying majority view:
                                      (a) Kind of harm (the critical one of the three)
                                               (i)      Didn’t foresee this type of harm would
                                               occur (dog drinking gasoline)
                                      (b) Extent of harm
                                               (i)      Didn’t expect how bad the consequences
                                               would be (assume arguendo that dog would
                                               drink gas, didn’t expect dog to die) (also look at
                                               eggshell plaintiff)
                                      (c) Manner of harm (relevant for intervening cause)
                                               (i)      Didn’t expect this to cause the harm that
                                               occurred (didn’t expect gasoline to catch on fire)
                             (3) Minority View: D is subject to liability for consequences
                             which are a direct result of his tortious conduct, whether or not
                             foreseeable. The result is direct if it follows in an unbroken
                             natural sequence from the effect of D's act upon conditions
                             existing and forces already in operation at the time, without the
                             intervention of any external forces which were not then in active
                             operation. (In re Polemis): D negligently drops wooden plank
                             into hold of ship. Unforeseeably, plank strikes a spark which
                             ignites gasoline vapor in the hold and the ship is destroyed. D is
                             subject to liability for the loss. “Once the act is negligent, the
                             fact that its exact operation was not foreseen is immaterial…”
                             Negligent person is therefore liable for all damages. Wagon
                             Mound (I) rejects direct causation in Polemis. In this case, D
                             negligently spilled oil that caused damage by mucking up ship,
                             but court said since not foreseeable for a fire to occur and since
                             you have to have foreseeability, D not liable. Wagon Mound (II)
                             expounds upon foreseeability. In this case it was foreseeable that
                             there could be a fire. Because in the second, but not first case,
                             there was a foreseeability of fire, the D lost.
                     b) intervening causes

                               (1) Definition. An intervening cause is conduct by some third
                               person (or an event which occurs) after D's tortious conduct, and
                               operates with or upon D's conduct to produce P's injury.
                               (2) If both the intervening cause AND the resulting
                               consequences were not foreseeable, it is called a superseding
                               cause and D's tortious conduct is not deemed a proximate cause
                               of P's injury.
                               (3) Examples of foreseeable intervening causes:
                                        (a) foreseeable weather conditions;
                                        (b) negligence by third persons;
                                        (c) criminal conduct or intentional torts by third
                                        persons, provided D's conduct exposes P to a
                                        greater-than-normal risk of such conduct, or if the
                                        exposure to such risks is what makes D's conduct
                                        (d) P's self-inflicted harm while insane;
                                        (e) acts by rescuers;
                                        (f) efforts by P to mitigate the effects of his injury;
                                        (g) disease or subsequent injuries resulting from the
                                        impairment of P's health caused by the original injury.
      B. Unexpected Harm
            1. General rule is that D must reasonably foresee the kind and extent of the
               2. Exception: Direct Causation Theory—Foreseeability of any injury will result
               in the D being liable for the full extent of the injury caused. (Eggshell Plaintiff
               theory: Vosburg v. Putney and Steinhauser v. Hertz Corp.) This is because D
               takes P as he finds him and as in the case of Steinhauser he will be liable for even
               the aggravation of a preexisting illness.
               3. Malpractice Aggravation Rule—If medical services are rendered negligently
               the rule based on questions of policy makes the negligence of the original
               tortfeasor a proximate cause of the subsequent injuries suffered by the
               victim.(ambulance crashes with P previously injured by D in it). But, in cases of
               gross negligence, the medical malpractice can causal chain.
      C. Unexpected Manner
               1. See negligence by third persons in intervening causes. Articulated in dissent
               of McLaughlin v. Mine Safety Appliances Co.
      D. Unexpected Victim: Palsgraf v. Long Island Railroad Co. (LIRR)., fireworks hidden
      in newspaper which was dropped after LIRR agent pushed man into train which then
      detonated and caused scales to hit P. In majority opinion, Cardozo states how P is outside
      of the orbit of danger and therefore outside of the duty. Since no breach of duty, no need
      to address proximate cause. “The risk reasonably to be perceived defines the duty to be
      obeyed, and risk imports relation; it is risk to another or to others w/in the range of
      apprehension.” Austin thinks Cardozo decision is BS! In dissent, Andrews articulates
      LIRR as guilty by applying Polemis. Andrews also states how proximate cause is molded
      based on arbitrary practical politics of public policy.
V.    Damages
VI.   Defenses

A. Plaintiff’s Fault-still use BPL. Austin gave arguments that P may be less
responsible than D for moral (non-self regarding) and capacity (affirmatively injury
v. passively) reasons.
        1. Contributory Negligence
                a) Defined: Contributory negligence is conduct by P which creates an
                unreasonable risk of harm to P, and which combines with D's negligence
                to cause P's injury.
                b) Burden of Proof: Contributory negligence is an affirmative defense.
                c) Rules: In general, contributory negligence uses the same rules and
                tests as negligence. However, conduct that would be deemed negligent
                is not necessarily contributory negligence. E.g. Last clear chance rule:
                limit to contributory negligence defense. If just before accident, D had an
                opportunity to prevent harm, the existence of this opportunity (the last
                clear chance) wipes out the effects of the P’s contributory negligence.
                d) Effect of Plaintiff's Contributory Fault: Complete Bar vs. Mitigation
                of Damages. Contributory negligence, once a complete defense that
                totally barred P's recovery, now usually merely reduces his damages to
                such extent.
                e) Intentional or Reckless Conduct: Ordinarily contributory negligence
                was not a defense to reckless conduct.
                f) Strict Liability: except when the conduct amounts to an assumption
                of risk, contributory negligence is not a defense to a strict liability action.
                (taking drug after expiration date)
                g) Safety Statutes. Contributory negligence is not a defense to actions
                founded upon certain types of safety statutes intended to protect a class
                of persons from dangers against which they are incapable of protecting
                themselves (because they are, by nature, contributorily negligent). Some
                statutes expressly prohibit this defense. Examples:
                         (1) Child labor laws
                         (2) Statute prohibiting sale of certain items to minors (e.g.
                         Austin’s teenager-purchasing-gun-without-id-check-and-
                         commits-suicide hypo)
                h) Avoidable Consequences: addresses the issue of measure of damages
                under contributory negligence scheme. Even if accident was entirely D’s
                fault, P’s recovery can be reduced if P fails to exercise due care to
                mitigate harm done (e.g. not seek medical care)
        2. Comparative Negligence
                a) Defined: Under this rule, P's contributory negligence is not a
                complete bar to his recovery. Instead, P's damages are calculated and
                then reduced by the proportion which P's fault bears to the total causative
                fault of P's harm.
                b) Types of Comparative Negligence.
                         (1) Under the pure form (minority rule), P may recover a
                         portion of his damages no matter how great his negligence in
                         comparison to that of D.
                         (2) Under the modified form (most jurisdictions), P recovers
                         nothing if his negligence was:
                                  (a) “As great as” (P = or >D), in some jurisdictions, or
                                  (b) “Greater than” (P>D), in other jurisdictions

                         (3) NE and SD use "slight" and "gross" negligence concepts,
                        and TN uses "remote contributory negligence."
               c) Factors. Trier of fact should consider the following in determining
               fault percentages (basically BPL with subj./obi standards thrown in):
                        (1) Whether conduct was mere inadvertence or engaged in with
                        an awareness of the danger involved
                        (2) The magnitude of the risk created by the conduct
                        (3) The significance of what the actor was seeking to obtain by
                        the conduct
                        (4) The actor’s superior or inferior capacities
                        (5) The particular circumstances (e.g. an emergency)
               d) Negligence v. Intentional Tort We tend to want to hold intentional
               tortfeasors (e.g. criminal assailants) more liable than negligent tortfeasors
               (e.g. car rental company who denoted rental car on tags and didn’t warn
               tourists or increased crime in the area). But may temper this with who
               can pay? May decide to use joint and several liability as payment
B. Assumption of Risk (A.O.R.)
      1. Express Agreements: Rule—if P, by contract or otherwise, expressly agrees
      to accept a risk of harm arising from D's negligent conduct, P cannot recover for
      such harm, unless the agreement is invalid as contrary to public policy. See
      Dalury v. S-K-I: Skier signs release and is injured when hits a pole while skiing.
      P won. Court said assumption of risk agreement should be upheld if it meets
      three criteria:
               a) Freely and fairly made
               b) Between parties who are on an equal bargaining position
               c) There is no social interest with which it interferes
      Court says there is a legitimate public interest, and skiers are business invitees;
      therefore slope assumes a reasonable expectation of safety and proper
      precautions. Court said that this agreement would have relieved resort from
      certain occurrence (i.e. those “inherent” dangers of the sport), but here, the
      unpadded pole was not an inherent risk.
      2. Implied Assumption of Risk—P assumed risk by her conduct.
               a) D must show that P:
                        (1) Knew of the risk (this particular hazard), and
                        (2) Voluntarily consented to it
               b) Cases:
                        (1) Murphy v. Steeplechase. (The “Flopper”) Volenti non fit
                        injuria: one who takes part in a sport accepts the obvious and
                        necessary dangers. If the dangers were obscure or unobserved to
                        justify precautions, then there would not be an implied A.O.R.
                        (2) Gonzales v. Garcia.(Drinking co-workers; less drunk guy
                        gets in car with more drunk driver). Court says A.O.R., which
                        would normally bar recovery, does not apply here. Court says
                        this should be comparative negligence case because, when P acts
                        UNREASONABLY, AOR merges with comparative negligence
                        and the latter prevails. (When P acts REASONABLY, AOR does
                        not bar recovery and CN is not considered).
                                 (a) Primary AOR—when D shows she had no duty

                                         (b) Secondary AOR—when D uses AOR as an
                                         affirmative defense.
                                 (3) Zenghi v. Niagara Frontier. Firefighters rule: a firefighter or
                                 police officer hurt in line of duty does not have a common law
                                 negligence cause of action. (e.g. firefighters putting out fire, but
                                 owner does not maintain stairs and they collapse). They still
                                 have workers comp.
                                         (a) Exception: when an officer who is on duty is injured
                                         because he was present in a specific location but not
                                         engaged in any specific duty that increased his risk of
                                         receiving the injury, he does have a negligence claim.
                                         (e.g. cop driving around on patrol and gets rear-ended).
                                         (b) Policy for rule: we’re paying firefighters and
                                         policeman to take these risks inherent in job. The reason
                                         we do allow recovery for the exceptions is that these are
                                         general risk that all the public would face.
VII.   Strict Liability
       A. Doctrinal Development
                1. Strict liability for abnormally dangerous activities originated in Rylands v.
                Fletcher, which held D strictly liable for damage to P's mine caused by water
                which escaped from D's reservoir because a reservoir was a "non-natural use" of
                land in that area. Rule: one is liable to neighboring landowners when he brings an
                artificial and unnatural device onto his land, and the unnatural device causes
                something to escape from the land and harm another’s land or property.
                2. Restatement 2nd, § 519 has, roughly speaking, codified the rule of Rylands, to
                impose strict liability in cases of “abnormally dangerous” activities. Rest. 2nd, § 520
                lists six factors to be considered in determining whether an activity is
                abnormally dangerous:
                          a) Existence of high degree of risk of some harm to person, land or
                          chattels of others
                          b) Likelihood that the harm that results from it will be great
                          c) Inability to eliminate the risk by the exercise of reasonable care
                          (flying wood and vibrations)
                          d) Extent to which the activity is not a matter of common usage
                          (wrecking ball)
                          e) Inappropriateness of the activity to the place where it is carried on
                          (hot air balloon landing in NYC); and
                          f) Extent to which its value to the community is outweighed by its
                          dangerous attributes (medivac helicopter landing on busy street)
                3. Examples of strict liability
                          a) Use and storage of explosives
                          b) Crop dusting or spraying
                          c) Storage and transport of toxic and flammable substances
                          d) Nuclear Reactor (probably)
                          e) Ground damage from airplanes
       B. Cases
                1. Sullivan v. Dunham
                          a) Facts: D landowner hired someone to dynamite a tree; from blast a
                          wood fragment flew and killed P’s decedent traveling on public highway.

                         b) Rule: if you use explosives and hurt someone directly, then strict
                          liability. If you injure someone indirectly, then negligence.
                          c) Reason: always attentive to property rights, but want to protect safety
                          of travelers.
                          d) Example of indirect injury: if P here suffered from shock.
                2. Indiana Harbor Belt RR v. American Cyanamid.
                          a) Facts: While being transported by P, D’s RR car leaks toxic
                          chemical; P had to pay for damages to yard where car had stopped.
                          b) Rule: when the negligence standard can adequately correct the harm,
                          no need for S.L. regime.
                          c) Posner. This is exception to usual S.L. rule of toxic chemicals
                          because reasonable care could have been used (repair valve).
                          d) Prof. Austin doesn’t like this reasoning. What about area residents;
                          RRs use a hub and spoke system, so have to go through metro areas.
                          Another reason to use S.L. to give American Cyanamid incentive to do
                          more research into safer chemicals.
VIII.   Products Liability
        A. Defined: products liability refers to the liability of a seller of a chattel which, because
        of a defect, causes injury to its purchaser, user or bystander. The term is used here to
        include both situations where the P purchased the item directly from D and those where
        there was no contractual relationship between P and D.
        B. Three possible theories:
                1. Negligence In general, ordinary negligence principles apply to product
                liability actions brought on a negligence theory. Negligence was older approach.
                Now strict liability is the general rule (see below).
                          a) Privity (direct contractual relationship) Limitations:
                                    (1) Old rule: Prior to MacPherson v. Buick Motor, the general
                                    rule was that the manufacturer or other seller of an unsafe
                                    product was not liable in negligence to the user or consumer
                                    absent privity of contract between P and D (Winterbottom v.
                                    Wright)—that is, unless P had bought the product directly from
                                    D. Exceptions arose: 1) when the unsafe condition was
                                    fraudulently concealed by the seller, and 2) the products were
                                    inherently or imminently dangerous to human life or health (e.g.
                                    poisons, guns, explosives).
                                    (2) Current rule: MacPherson v. Buick Motor Co. (N.Y.1916)
                                    held that lack of privity is not a defense when it is foreseeable
                                    that the product, if negligently made, can cause injury to a class
                                    of persons which includes P. This effectively abolished the
                                    privity limitation. Eventually MacPherson was followed in all
                          b) Persons protected: D is subject to liability not only to the ultimate
                          purchaser or lessee of the product but also to all foreseeable users or
                          consumers, and to all other persons foreseeably exposed to the risk. Most
                          courts also now negligence recovery where there is only property
                          c) Types of negligent conduct:
                                    (1) Manufacturers. Negligence in the manufacturing process
                                    includes negligent design; errors or omissions during production;

                 failure to properly test or inspect; unsafe containers or
                 packaging; inadequate warnings or directions for use; and
                 misrepresentation. A subsequent seller's failure to inspect does
                 not relieve the manufacturer of liability for his negligence.
                 (2) Subsequent Sellers. Subsequent sellers (distributors,
                 retailers) may be negligent in failing to warn of the existence of
                 an unsafe condition or otherwise protect the user. Under the
                 majority view, such seller is liable only for dangers of which he
                 knew or had reason to know; he has no duty to inspect or test the
                 product to discover latent dangers.
       d) Escola v. Coca-Cola: (waitress injured by defective Coke bottle that
       broke in her hand.) Bottle is pretty near infallible and any defect could
       not be witnessed by the eye. Court allowed Res Ipsa (since P could show
       that product didn’t change after it left D’s control; and since P used due
       care; and accident bespoke negligence) and set up the future for strict
       liability. This case allowed Justice Traynor, in his concurrence, to
       articulate movement toward S.L. Reasons he gave:
                 (1) Manufacturer can better bear cost
                 (2) SL will better discourage marketing of defective/dangerous
                 (3) Manufacturer is better position to anticipate risks
                 (4) The way products are made and sold now generates
                 assumption of safety
                 (5) Mass production leaves consumers in the dark regarding
                 knowledge of processes and dangers. Thus consumers can’t
                 investigate soundness of product. Consumers therefore operate
                 on assumption that product is safe.
2. Breach of Warranty (didn’t study)
3. Strict Products Liability
       a) Restatement 402A codifies S.L.:
                 (1) Seller of a dangerous defective product is liable if:
                          (a) Seller sells it, and
                          (b) Product is expected to and does reach user without
                 (2) This rule applies even if:
                          (a) Seller has exercised all possible care in preparation,
                          (b) User has not bought product from contractual
                          relation from seller (e.g. employee, Jones v. Ryobi,
       b) A product is defective when:
                 (1) There’s a manufacturing defect: defects which occur in a
                 particular product unit because of errors or omissions in
                 manufacturing, assembly or processing. The product was not
                 marketed in the condition which the manufacturer intended.
                 Test: deviation from the norm.
                 (2) There are Design or Warning problems.
                          (a) Design defects: those which are inherent in products
                          design and are thus common to every unit of the product

on the market. Examples include the use of inadequate
materials or the absence of feasible safety devices. In
design defect cases, the product is exactly as the
manufacturer intended it to be. P’s argument is that
intended design is flawed and unsafe.
(b) Instructions or warnings—inadequate warning (a
type of design defect).
(c) Two tests for design or warning problems:
        (i)       Consumer Expectations: One popular
        test is the "consumer expectation" test, requiring
        the product to be dangerous "to an extent beyond
        that which would be contemplated by the
        ordinary consumer who purchases it, with the
        ordinary knowledge common to the community
        as to its characteristics." Although this test is
        adequate in many situation, there are two
        problems with it:
                  (a) The ordinary consumer does not
                  always have enough information to have
                  a reasonable expectation as to the
                  product’s design safety
                  (b) The test sometimes tends to insulate
                  manufacturers from liability for patent
                  design defects.
        (ii)      Barker Test
                  (a) Consumer Expectation Test; OR
                  (b) Risk/Utility Balancing Test. (See
                  factors in Camacho below) In practice,
                  this test is similar to BPL with the focus
                  on the conduct of the manufacturer. If a
                  jury could determine that the product
                  could have been designed to be safer
                  without incurring unreasonable
                  additional costs, then the manufacturer
                  would be liable for the damages. The
                  test requires that the trier of fact
                            (i)      The safety risks of the
                            products as designed; AND
                            (ii)     Utility of product as
                            designed; AGAINST
                            (iii)    Safety risks and benefits
                            of the product if it had been
                            designed as the P claims it
                            should be.
                  This is a hindsight test, used at time of
                  trial, as opposed to negligence analysis,
                  which is a foresight examination (i.e.
                  whether defect was foreseeable by

                manufacturer). S.L. doesn’t care about
(d) Design Defect Cases:
       (i)      Soule v. GMC (faulty bracket causes
       injury to P’s feet). In determining whether a
       consumer expectation was violated, if the jury
       can make a reasonable inference from the facts
       that the consumer expectations did not meet the
       minimum expectations of safety, then the jury
       must utilize the balancing test with regard to the
       ultimate verdict. Here, because of technical
       nature of facts, don’t use C.E. test. C.E. test
       means no experts are allowed to testify.
       (ii)     Camacho v. Honda (motorcycle leg
       injury case). Crashworthiness doctrine: doctrine
       under which motor vehicle manufacturer may be
       liable in negligence or S.L. for injuries sustained
       in an accident where manufacturing or design
       defect, though not the cause of the accident,
       caused or enhanced the injuries. Court uses 7
       factors to determine risk utility:
                (a) the usefulness and desirability of
                the product as designed;
                (b) the likelihood and probable
                seriousness of injury from the product
                as designed;
                (c) the availability of an alternative
                product or design that would meet the
                same need and not be as unsafe;
                (d) the manufacturer's ability to
                eliminate the danger without impairing
                the product's usefulness or making it too
                (e) the user's ability to avoid the
                (f) the user's anticipated awareness of
                the danger; and
                (g) the feasibility of the manufacturer's
                spreading the risk of loss by pricing or
       (iii)    Jones v. Ryobi, Ltd. (hand in printing
       press). Employee, at impetus of employer,
       makes product unsafe by removing guard. Even
       if manuf. foresaw that product could be altered,
       court says must look at product at time it left the
       factory. Dissent said question should be not the
       foreseeability of the alteration, but rather
       whether the ability of product to be altered is
       what makes the product, as manufactured,
       unreasonably dangerous. Dissent says this

       question should be a matter of fact, though, not a
       matter of law.
(e) Warning Cases:
       (i)      Hahn v. Sterling Drug (kid drinks
       Campho-Phenique after older sibling leaves lid
       off). Whether warnings are adequate is a jury
       question, so case should go to a jury. The
       following are relevant considerations of a
       warning (from note 2, CB 525):
                (a) Warning must adequately indicate
                scope of danger;
                (b) Warning must reasonably
                communicate the extent or seriousness
                of the harm that could result from
                misuse of the drug;
                (c) The physical aspects of the warning
                must be adequate to alert a reasonably
                prudent person to the danger;
                (d) A simple directive warning may be
                adequate when it fails to indicate the
                consequences that might result from
                failure to follow it;
                (e) The means to convey the warning
                must be adequate.
       (ii)     Brown v. Sup Ct. (Abbott Labs)
       (D.E.S.) Unavoidably Unsafe Products: Under
       comment k to § 402A, some highly useful
       products (e.g., certain drugs and vaccines) may
       be "unavoidably unsafe" because of inherent
       dangerous side effects which "in the present
       state of human knowledge" cannot be
       eliminated. Such products, "properly prepared,
       and accompanied by proper directions and
       warnings," are not defective or unreasonably
       dangerous. Key issues as to which the courts
       disagree include:
                (a) Whether this provision applies only
                to design defects, or
                (b) To unknowable dangers, or only to
                known or preventable dangers (as in
                next case, Carlin).
       Court also rejects Kearl test (a 3 part test to
       decide whether drug came within comment k),
       and instead uses. Court refuses to extend S.L. to
       the failure to warn of risks that were unknown or
       scientifically unknowable at the time of
       (iii)    Carlin v. Superior Court of Sutter
       County. (First time case in readings) Affirms

                      c) Defenses. Daly v. GM.
                            (1) Comparative fault is applicable in S.L. cases.
                            (2) A purported disclaimer of product liability is ineffective.
IX.   Trespass and Nuisance
      A. Trespass (see also landowners and occupiers, supra, II.A.4)
             1. Defined: D trespasses on P's land when he intentionally
                      a) himself enters the land or causes a thing or third person to do so,
                      b) remains on the land after his privilege to be there has expired, or
                      c) fails to remove from the land a thing which he is under a duty to
             2. Intent: unintended intrusions will be viewed as reckless or negligent conduct
             and will be subjected to liabilities only if the intrusion causes actual harm.
             However, when D intends to be on P’s land, then P need prove no damages or
             actual harm because D is interfering with the right to possession and is hence
             liable for trespass.
      B. Nuisance: refers not to a type of tort, but to an injury that P has sustained. Two types:
             1. Public Nuisance: an unreasonable interference with a right common to the
             general public. Examples: public health (pollution of water supply), public safety
             (storage of explosives; harboring vicious dog), public morals (house of
             prostitution), public peace, or public comforts/conveniences (smoke, dust,
             vibrations, large crowds). The right interfered with must be common to the public
             as a class and not just one person, or even a group. A private citizen may recover
             for his own damages stemming from a public nuisance, but only if he has
             sustained damage that is different in kind, not just degree from that suffered by
             the public generally (e.g. oil spill, fisherman and clam diggers can recover
             2. Private Nuisance: an unreasonable interference with P’s use and enjoyment
             of his land.
                      a) Distinguish from trespass: whereas trespass is an interference with
                      P’s right to exclusive possession of his property, nuisance is an
                      interference with his right to use and enjoy it.
                      b) Two types:
                               (1) Intentional and Unreasonable:
                                       (a) intentional when the conduct is invading or is
                                       substantially certain to invade another’s interest in the
                                       use and enjoyment of their land.
                                       (b) Unreasonable—two tests:
                                                (i)      Balancing test
                                                         (a) Gravity of harm. 5 factors:
                                                                  (i)       Extent of harm
                                                                  (ii)      Character of harm
                                                                  (iii)     Social value that is
                                                                  attached to P’s use or enjoyment
                                                                  that is invaded.
                                                                  (iv)      Suitability of that
                                                                  particular use or enjoyment
                                                                  invaded with respect to the
                                                                  nature of the locality; and

                                                                (v)         The burden on the
                                                                   person harmed of avoiding the
                                                         (b) Utility of conduct. Factors:
                                                                   (i)      Social value of D’s
                                                                   (ii)     Suitability of D’s
                                                                   conduct to the locality;
                                                                   (iii)    Practicability of
                                                                   preventing or avoiding
                                                         If gravity is > utility, P can win
                                                         injunction. (like BPL)
                                                (ii)     If utility > gravity, as long as there is
                                                serious harm and feasible compensation, P can
                                                recover. Focus here is on P’s harm.
                              (2) Unintentional and arising out of negligent or reckless or
                              abnormally dangerous (only element with strict liability)
                              conditions or conduct.
                     c) Remedies:
                              (1) Damages. The usual remedy is damages. If the nuisance is
                              permanent, all damages must be recovered in one action. If the
                              nuisance can be abated, P recovers all damages to the time of
                              trial. If D then fails to abate, future invasions give rise to a new
                              cause of action.
                              (2) Injunction. If the nuisance threatens to continue and P has
                              no adequate legal remedy, equitable relief may be sought. The
                              court then will undertake a further balancing.
                     d) Boomer v Atlantic Cement (residents of Boomer suffered damages
                     from dirt, smoke and vibrations from Atlantic plant.) RULE: Permanent
                     damages may be awarded instead of an injunction where the value of the
                     activities sought to be enjoined is disproportionate to the relatively small
                     damage caused thereby. Lump sum payment is fair because it fully
                     recompenses the damaged property, specifically diminution in value of
                     home; also resolves open ended liability for D. Multiple small payments
                     are more difficult to administer. Problems with injunctive relief:
                              (1) Problem couldn’t be corrected in time period allotted
                              (2) Holdouts—one party has potential to hold out for payment if
                              injunction if granted.
X.   Damages
     A. General: fundamental goal of damages of unintentional torts is to return P to as
     closely as possible to their condition before the accident. Tends to be a one time recovery
     that tries to account for past and future losses. Physical injury is required; P may not
     recover where sustained only mental harm.
     B. Two broad categories of damages for physical harm:
              1. Compensatory
                       a) General vs. Special Damages
                                (1) General Damages. General damages are compensatory
                                damages for a type of harm which so frequently results from the

                tort involved that such damages are normally to be anticipated
                and hence need not be specifically alleged.
                (2) Special Damages. Special damages are those awarded for
                all other compensable harms and must be specifically pleaded in
                order to be recoverable.
      b) Nominal Damages: Nominal damages are a trivial sum awarded to a
      litigant who has proved a cause of action but has not established that he
      is entitled to compensatory damages.
      c) Damages for Personal Injury: When P proves a compensable
      personal injury, he may recover for all adverse physical and mental
      consequences of that injury.
      d) Pre-existing Conditions: D is responsible in damages for all the
      consequences of P's injury, including those caused or aggravated by
      some pre-existing condition, predisposition, or vulnerability of P which a
      normal person would not have sustained, even if that condition was
      unknown to D.
      e) Present Value: If P is awarded damages for pecuniary losses which
      he will incur in the future, the amount of such damages must ordinarily
      be reduced to present cash value. Certain general damages are not so
      f) Inflation: Some jurisdictions still do not allow the jury to take into
      account the effects of future inflation in calculating damages for future
      economic losses.
      g) Taxation: compensatory damages are not taxable while punitive
      damages are.
      h) Collateral Source Rule: Payments made to, or benefits conferred
      on, the injured party from sources other than D are not credited against
      D's liability. See Bandel v Friedrich
      i) Limitation: As a result of recent tort reform legislation, a growing
      minority of jurisdictions place caps or other limits on the amount of
      general damages recoverable, either in personal injury actions generally
      or in medical malpractice cases only.
      j) Mitigation (Avoidable Consequences): Under the doctrine of
      avoidable consequences, P is required to make reasonable efforts to
      mitigate the consequences of his injury and to take reasonable steps to
      prevent further harmful consequences from developing.
      k) Seat Belts: In some jurisdictions, P cannot recover to the extent that
      his injuries, sustained in an auto crash, were the result of his failure to
      make use of an available seat belt.
      l) Calculation:
                (1) past related bills (e.g. medical expenses),
                (2) projected future costs that are adjusted for inflation and
                discounted in present value terms, adjusted for life expectancy.
2. Punitive.
      a) Purpose of punitive damages is to punish D for doing the action and
      to deter him and others from similar conduct in the future.
      b) D must have acted from a wrongful motive or at least with gross or
      knowing indifference to the rights or safety of another.

                      c) The amount of punitive damages is at the discretion of the trier of
                       fact, subject to a review for excessiveness. Usually there is some
                       correlation to the compensatory damages awarded, i.e. a multiple of it.
      C. Wrongful Death of a Child: In the event of a wrongful death of a child, juries
      should look beyond near pecuniary injury and also award loss of advice, guidance and
      counsel. Children are an asset rather than a liability and their value should not be mere
      monetary equivalent of the household expense required to support them.
      D. Seffert v LA Transit Lines
              1. Excessive Punitive Damages: (P dragged by bus suffering severe injuries):
              amount of punitive damages is normally for jury to decide. When characterized
              as excessive, it is reduced only when the court is convinced that it is so large that
              it shocks the conscience and appears to be the result of passion or prejudice. In
              this case, although the award is high, it is not excessive.
              2. Compensation for lost wages: damage based on earning capacity. Other
              factors to consider may be service P provides to community or home irrespective
              of compensation. Should courts also consider person’s non-productive time. A
              dollar is valued differently based on one’s lifestyle (e.g. award damages based on
              standard of living) and social status (e.g. black woman’s dollar is worth less at a
              car repair garage than a white man’s dollar). Also, children and elderly are worth
              less than adults.
              3. Per Diem approach: figure worth of one day’s pain and suffering and
              multiply times life expectancy.
      E. McDougald v Garber. Two main issues:
              1. Can there be recovery for conscious pain and suffering if P is comatose and
              incapable of experiencing pain? Yes
              2. BUT, Cognitive awareness is a prerequisite to recovery for loss of enjoyment
              of life.
      F. Taylor v Superior Court. Court gave reasons for not awarding punitive damages, but
      professor countered each one:
              1. Court said may constitute unjust enrichment; Austin says part of it is to pay
              for contingency fees of lawyers without worrying about legal fees.
              2. Court questioned real effect of deterrence. Austin says still there.
              3. Court says punitive damages doesn’t allow comparative fault.
              4. Standard for punitive damages is a conscious and deliberate disregard for the
              safety of others.
      G. Fischer v Johns-Manville—D argues:
              1. D asks why stockholders should have to suffer for our punitive damages.
              Court said stockholders buy into company warts and all.
              2. D said problem with punitive damages is that they are not calculable, and
              therefore can’t prepare for them. Court didn’t buy this argument either.
              3. D also argued that excessive punitive damages may prevent a worthier
              plaintiff later from being paid. Court did conclude this argument could be taken
              into consideration.
      H. BMW v Gore. Concealed paint repair before sale. $4000 compensatory and
      $4,000,000 (adjusted to $2,000,000). This case points out potential problem of
      compensatory:punitive damages award ratio.
XI.   Intentional Torts
      A. Intent
              1. General: In tort law, conduct is intentional if the actor

                 a) desires to cause the consequences of his act, or
                 b) believes that the consequences are certain to result from it.
        2. Motive is irrelevant; we look to desire to cause a certain action, not the
       3. Contributory negligence and contributory recklessness are not defenses
       to intentional misconduct.
       4. Garratt v Dailey (5 year old Brian moved chair some time before Ms. Garratt
       sat down; she broke her hip). Court said question is not whether Brian had
       unlawful purpose in his actions but whether he knew with substantial certainty
       that his actions would cause her harm.
B. Assault and Battery
       1. Assault: the intentional causing of an apprehension of harmful or offensive
       contact.. It is a P’s apprehension of injury which renders a D’s act compensable.
                a) Apprehension: P must have been aware of D's threatening act at the
                time, before it is terminated. Apprehension is all that is required; P need
                not be afraid. If D's assault is directed against P, D is subject to liability
                even though P's apprehension is unreasonable. It is sufficient that P
                believe that if she does not take action, a harmful or offensive contact
                will occur in the near future. P’s right to recover is not negated by the
                fact that she is confident of her own ability to take action to avoid the
                contact. (e.g. scrawny guy can commit assault against heavyweight
                b) Generally, future threats cannot constitute assaults. D must have the
                present ability to commit the threatened act. Where the threat by itself is
                incapable of performance, this will not count as an assault.
                c) Damages: the rules for damages in assault are the same for those in
                battery. Three types:
                          (1) Nominal: if P shows no out of pocket loss.
                          (2) Mental Suffering: this is the primary form of relief. But if
                          physical injury results from mental suffering (e.g. he is
                          frightened and tries to run away and is hit by oncoming car, he
                          may recover for physical damages, as well).
                          (3) Punitive: if D’s conduct is sufficiently outrageous or
       2. Battery: the intentional infliction of a harmful or offensive bodily contact.
                a) Intent: the intent refers to fact that D must make contact; act does
                not have to cause physical injury.
                b) Offensive contact: reasonableness standard. Look to how an
                ordinary person would react, not an unduly sensitive person would react.
                EXCEPTION: when D has knowledge of P’s sensitivity (e.g. woman
                with religious beliefs prohibiting being seen naked by a man and she is
                touched in surgery for caesarian section by male nurse.) Doesn’t have to
                be actual person; can be something they are in intimate contact with (e.g.
                a camera).
                c) Harmful Contact: producing some bodily harm.
       3. Picard v Barry Pontiac (woman assaulted by garage mechanic who points
       finger and threatens her and touches her camera). This case confirms that don’t
       have to touch body itself.
C. False Imprisonment

        1. Defined: any unlawful exercise or show of force by which a person is
       compelled to remain where he does not wish to remain or to go where he does
       not wish to go. Unlawful restrain may be affected by words alone, acts alone;
       actual force unnecessary. If a P consents, there can be no false imprisonment. P
       must know that they are being confined.
       2. PROSSER and RST: Moral pressure that makes a P compelled to remain in
       an area is not enough, rather, a person must establish a restraint against a P’s will
       as where she yields to force, the threat of force or the assertion of authority.
       3. Intent: The requisite intent is merely the intent to confine. A mistake of
       identity is no excuse, nor is a good faith belief that the confinement is justified.
       4. Ways to show false imprisonment (RST):
                a) Actual or apparent physical barriers
                b) Overpowering physical force, or submission to physical force
                c) Threats of physical force
                d) Other duress
                e) Asserted legal authority
       5. Lopez v Winchell’s Donut House: D managers had P employee in a back
       room for the purpose of questioning her about cash register shortages. D
       employees never threatened her with loss of job, nor did she ever fear for her
       safety or was ever prevented from leaving. HELD: P was denied recovery. Court
       held that feeling “compelled to remain” [for moral reasons; i.e. clearing her
       name] was not enough.
       6. SHOPLIFTING: frequent scenario for false imprisonment allegations.
       KIONKA: Shopkeepers may have a privilege to detain persons suspected of
       shoplifting for a reasonable time for the purpose of conducting an investigation.
       CASEBOOK (p. 818) says, though, that shoplifter has to be found guilty in order
       to bar a cause of action.
D. Intentional Infliction of Emotional Distress
       1. RULE: when D by extreme and outrageous conduct intentionally or
       recklessly causes severe emotional distress, D is subject to liability to P for that
       emotional distress and for any resulting bodily harm.
       2. Elements of emotional distress unaccompanied by physical injury:
                a) Intentional or reckless; this is satisfied where
                        (1) Wrongdoer had a specific purpose of inflicting emotional
                        distress; or
                        (2) Where he intended his specific conduct and he should have
                        known that emotional distress would be a likely result.
                b) Conduct was outrageous and intolerable in that it offends against the
                generally accepted standards of decency and morality;
                c) There must be a causal connection between the wrongdoers conduct
                and the emotional distress
                d) The emotional distress must be severe.
       3. Womack v. Eldridge D is investigator for attorney defending someone
       against child molestation; D pretends to be member of press and takes P’s
       photograph under false pretenses to be used as a possible alternative suspect. P is
       not connected at all to the crime, but by virtue of this photograph, he is brought
       into the case and suffers severe emotional distress .P does recover.
       4. Hustler v. Falwell. Public figure (Jerry Falwell) sues Hustler magazine for
       printing insulting parody cartoon and claims IIED. Supreme court held that

      public figures and public officials may not recover for the tort of intentional
      infliction of emotional distress by reason of publications such as the one here at
      issue without showing in addition that the publication contains a false statement
      of facts which was made with “actual malice,” i.e., with knowledge that the
      statement was false or with reckless disregard as to whether or not it was
      true.(New York times standard) CONCURRENCE: NY Times standard has little
      to do with this because jury found that ad contained no assertion of fact.
E. Defenses to Intentional Tort: Consent:
      1. In General: Consent is a defense to almost any tort, but it is applied most
      frequently to the intentional torts.
      2. Existence: There is consent when one is, in fact, willing for conduct to
      occur. It is a matter of P's subjective state of mind. It is valid whether or not
      3. Apparent Consent: P's words or conduct manifesting consent are sufficient
      to create a privilege to D to act in light of the apparent consent, even if P's actual
      (but undisclosed) state of mind was to the contrary.
      4. Conduct: Conduct can manifest consent. Even silence and inaction may
      indicate consent when such conduct would ordinarily be so interpreted.
      5. Custom, Prior Relationship: Consent may be inferred from custom and
      usage, from prior dealings between the parties, or from the existence between
      them of some relationship.
      6. Capacity to Consent: The consent must be given by one having the capacity
      to do so, or one authorized to consent for him. Infancy (see infra), intoxication, or
      mental incapacity (see infra) normally will vitiate effective consent. However,
      the patient’s consent will be implied “as a matter of law” if all of the following
      factors exist:
               a) Incapacitated
               b) Emergency
               c) Lack of consent not indicated: there is no indication that he would
               not consent if able to do so.
               d) Reasonable person: would give consent under the circumstances.
      7. Infancy: when patient is young child, he will usually be held to be not
      capable of giving consent and must either have an emergency or parental
      consent. BUT, if patient is approaching age of majority, he will be able to give
      consent on his own regardless of parental consent; e.g. a 17 year-old girl
      presumably has ability to consent to a legal abortion despite opposition of her
      8. Mental Incapacity: e.g. HYPO: kidney donor sibling is mentally
      incompetent: jurisdictions divided, but options include
               a) allowing guardian to give consent,
               b) court can appoint guardian ad litem to represent donee in the matter
               c) benefit theory: court implies that donor derives benefit in helping his
               donee sibling and thus allows the transplant. However, dissent criticized
      9. Implied Consent: When an emergency actually or apparently threatens death
      or serious bodily harm and there is no time or opportunity to obtain consent,
      consent will be implied. In an emergency, surgery is usually justified, but if no
      emergency threatens the P’s life or health, then it is considered a technical

10. Scope of Consent: The consent is to D's conduct, and once given, P cannot
complain of the consequences of that conduct, however unforeseen. But D's
privilege is limited to the conduct consented to or acts substantially similar. The
consent may be conditioned or limited as to time, place, duration, area, and
11. Mistake, Ignorance: Even though given pursuant to P's material mistake,
misunderstanding or ignorance as to the nature or character of D's proposed
conduct or the extent of the harm to be expected from it, P's consent is effective
as manifested unless D knows of the mistake or induced it by his
12. Informed Consent: Under the doctrine of informed consent, if D (e.g., a
physician) misrepresents or fails to disclose to P the material risks and possible
consequences of his conduct (e.g., a medical procedure), P's consent is not an
informed one. Under the prevailing view, the failure to disclose mere risks is
deemed collateral, and therefore a matter of negligence only. It does not vitiate
the consent and therefore there is no battery.
13. Duress: Consent given under duress is not effective. Duress includes threats
of immediate harm directed against P, his family or valuable property, but
usually not threats of future harm or of economic duress.
14. Consent to Crime: Under the majority view, the consent is not effective if
the conduct consented to is a crime, at least in battery cases. The minority and
Restatement view is that consent to criminal conduct is valid unless in violation
of a statute making conduct criminal to protect a class of persons irrespective of
their consent.


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