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
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
2. Strict Liability
3. Intentional Torts
PART I: NEGLIGENCE
I. Negligence Principle
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,
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.
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
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
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
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
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.
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
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
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
(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
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
(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
(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
(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
(1) the person within his custody or control so as to protect third
(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
(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
(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
(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
(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
(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
(e) possessor fails to exercise
reasonable care to eliminate the danger.
(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
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
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
(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.
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
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
(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
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
(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.
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
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.
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
(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
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
(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
(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
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
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
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
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
(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
(iii) Safety risks and benefits
of the product if it had been
designed as the P claims it
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
(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
(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.
(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.
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:
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
g) Taxation: compensatory damages are not taxable while punitive
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.
(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.
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
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
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
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.
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
(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
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