Document Sample
					                                                                            Torts Law Outline        1

In order to be successful, the P must:
    1. Establish that D had a duty; *question for court
    2. Prove D negligent or engaged in an activity that subject to S/L; *generally a question for
    3. Prove that he suffered injury/damages
            a. Just because S/L still consider comparative negligence/contributory negligence –
                could reduce damages
    4. Prove D’s actions were a cause in fact of the P’s injury (that tortious conduct a necessary
       condition of his injury - “but for,” “substantial cause,” etc.); and
    5. Prove D’s actions were also a proximate cause of the P’s injury (that foreseeable
       harm/that possibility of harm caused what made D’s actions negligent).

Exceptions – who’s the cheapest cost avoider?


A. Duty – legal duty to comply w/ a particular standard of care
B. Breach of duty – failure to comply w/ the applicable standard of care
      1. Three types: negligence, strict liability, and intentional wrongdoing
      2. *A note on duty: “In the ordinary negligence case involving foreseeable physical
          harm to the P or his property, the D is alleged to have had and to have breached the
          duty to exercise reasonable care to avoiding injuring the P. Asking whether the D
          had a duty to the P and whether that duty was breached is therefore just another way
          of asking whether the D was negligent, and whether that negligence was a
          proximate cause of the P’s harm” (233).
C. Causation
      1. Actual Causation: Often use “but for” test; In case of multiple factors, often use
          “substantial factor” test – identifies factor that most substantial to justify causation
      2. Proximate Causation
D. Damages
      1. Physical injury and/or Pain and suffering/psychic injury
E. Defenses
      1. Contributory Negligence
      2. Comparative Negligence
      3. Assumption of Risk: express and implied assumption of risk
      4. Consent (intentional torts):
                a. Traditional rule – D cannot escape liability merely by honestly believing
                    that there was consent, but must have “reasonably relief” on a
                    manifestation of consent by the P
                b. Another possibility – There is no consent unless express, affirmative
                    consent by the P
      5. Self-Defense (intentional torts): Defense permitted if reasonable person would
          believe he was under attack; however, excessive force will be judged as will
          opportunity to flee/escape
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Functions mixed; they co-exist, sometimes in tension w/ each other

A.   Corrective Justice: Core notion envisions individual injurer who directly compensates the
     individual victim. Weakness of course is that in more complex cases where connection b/w
     injurer and victim less direct, corrective justice is less relevant. Thus Civil Redress
     proposed; idea that tort liability provides redress for civil wrongs. Imposition of liability
     recognizes occurrence of a wrongfully caused injury and vindicates victims’ need for
     recognition that they’ve been wronged, in a proportional manner.
B.   Optimal Deterrence: Idea that function of tort law to promote optimal deterrence – to
     deter excessively risk activity so that only those losses worth avoided are avoided. Based
     on principle that deterring certain losses is not worth what it would take to deter them.
     Note: the principle does not dictate what values should be taken into account in
     determining which losses are and which aren’t worth deterring. Could be determined on
     case-by-case basis, or categorically.
C.   Loss Distribution: Idea that function of tort law to promote broad distribution of losses,
     thus tort law often imposes liability on businesses and institutions that can distribute loss
     through insurance or raising the price of products/services. Weaknesses: does not explain
     why tort liability often is not imposed on parties who might be good distributors; also,
     insurance systems can more broadly and efficiently distribute losses.
D.   Compensation: Limited. Liability is not imposed in order to provide compensation.
     Rather, victims are provided compensation in order to serve the other goals of tort law, like
     corrective justice and deterrence.
E.   Redress of Social Grievances: Particularly applicable against large, impersonal
     institutions. Standing alone, not a strong justification for the imposition of tort liability,
     however, when allied w/ other functions may explain why some decisions are made.


A. Negligence is the failure to exercise the care that would have been exercised by the
    reasonable prudent person (i.e. due care) under the circumstances to avoid foreseeable
    injury or harm to another person or property.
B. The duty of care is the same among everyone; however, there are of course variations in
    circumstances that change what one has to do.
        1. Frederick v. Detroit, Dep’t of Street RR: Woman alleged that common carrier
           owed a higher duty to care to its passengers. Court disagreed. Everyone must
           exercise due care – not a higher or lower version of it. Of course, it is harder for
           some because they need to do more to achieve what “the reasonably prudent person
           in similar circumstances would consider reasonably necessary.”
C. Notion of fault connotes the foreseeability of risk/harm.
        1. D not negligent unless knew or reasonably should have known that actions posed a
           risk of harm. Even then, D not negligent unless a reasonable person under the
           circumstances would have taken precautions that D did not take in order to avoid
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         2. Blyth v. Birmingham Waterworks Co.: Introduced idea of foreseeability. Court
            ruled in favor of D, saying a reasonable person could not have foreseen the frost.
         3. National Food Stores, Inc. v Union Electric Co.: National Food Stores sued Union
            Electric for damages it incurred during an electrical service interruption. Court held
            that D had duty to protect its customers from foreseeable damage from failure of
            electric service. The right to interrupt service in the face of an emergency is a far
            different thing from relieving a utility of liability where it fails to give a reasonable
            notice to its consumers of its intentions to interrupt services when the utility knows
            or could reasonably anticipate a situation that would make it necessary to interrupt
            service and the utility knows or should know that by so failing to give notice the
            interruption might result in loss or harm to its consumers. – so should of given
         4. Remember, it’s not only necessary to think about the average/normal circumstances
            to determine foreseeability, but to also consider the slim chances that something
            might occur. Something could be probable, but so slim that not necessary to take it
            into account.
D.   The Negligence Calculus: Even if can foresee the risk, may want to engage in a
     cost/benefit analysis to determine whether D had a responsibility to reduce risk or whether
     it would have been unreasonable to do so.
         1. Hand Formula for determining negligence: B < PL
            Burden (cost of care) should be less than the expected cost of the accident
            (Probability x Injury)
         2. Hand Formula rarely used explicitly by courts; however, in cases involving product
            design (as distinct from so-called manufacturing flaws) cost-benefit analysis is now
            accepted as a standard component of the calculus used to define the standard of
         3. Bargaining (Calabresian) – idea that should put the burden of reducing costs on
            the cheapest cost avoider per a strict liability regime. In manufacturing cases, a
            presumption that manufacturer cheapest cost avoider.
         4. Adams v. Bullock: Boy injured when swung on wire, which hit the RR’s overhead
            wire system and shocked and burned him. Court held that D unlikely to have
            foreseen this accident, but even if it could have, it would have been exceptionally
            costly to avoid it – would have had to put all wires underground.
         5. Eckert v. Long Island RR: P died when pushed child out of way of train. Court
            rejected D’s motion for directed verdict on basis that P negligent in doing so, saying
            value of human life so high that justified action unless person acted rashly. Of
            course, if P had died trying to protect property, calculation wouldn’t be the same.

A. An objective standard. “The law considers what would be blameworthy in the average
   man, the man of ordinary intelligence and prudence, and determines liability by that.”
      1. The law does not consider all of the varieties of personality that could affect one’s
          ability to act prudently.
      2. With few exceptions (if disabled or infant), if have less capacity, tough luck.
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        3. What if a defendant possesses special skills or knowledge? Restatement § 299: “he
            must exercise his superior competence with reasonable attention and care.” Some
            courts have disagreed.
        4. Pros and cons of objective standard – pp 56-57, horn book.
        5. Vaughn v. Menlove: D sued for damages to the P’s cottages resulting from a fire
            that started in one of the D’s hay stacks. D warned many times of danger. Jury
            ruled in favor of P. Court upheld jury instruction of standard of ordinary prudence.
B.   Instances where standard relaxed:
        1. Children:
                  a. Children below the age of five cannot be negligent
                  b. Semi-objective standard: Until mid-20th C, children above age five were
                       expected to exercise the degree of care that would be reasonable in a child
                       of similar age, intelligence, and experience. A child of unusual
                       intelligence might be expected to exercise more care than normal.
                  c. Parents are not liable for the torts of their children, however, can be held
                       liable for negligent supervision, which becomes more likely the younger
                       the child is.
                  d. Children engaging in dangerous adult activities are held to an adult
                       standard of care. Reasoning: there is no way to anticipate whether a child
                       is driving a vehicle, flying an airplane, or operating a motor boat. There is
                       no social benefit gained by immunizing children against liability, unless
                       capable, shouldn’t be doing the activity. Children more likely now to be
                       insured by parents’ policy.
                  e. Dellwo v. Pearson: Child operating motor boat liable for injuries.
        2. Infirm:
                  a. Typically, physical infirmities taken into account, mental infirmities not.
                  b. Reason: physical infirmities visible, measureable, and verifiable; whereas
                       mental infirmities are not.
                  c. As people w/ physical infirmities better able to do harder things, the
                       standard changes.
                  d. People w/ physical infirmities sometimes held to a higher standard – ex. a
                       blind person shouldn’t drive.
                  e. Memorial Hospital v. Scott: MS patient burned by toilet. Questioned
                       whether contributed to accident. Court held should be held to reasonable
                       man standard, however, should take into account his disability. “The
                       proper test to be applied in such cases is the test of a reasonable man
                       under the same disabilities and infirmities in like circumstances.”
                  f. Hammontree v. Jenner: During epileptic seizure man drove into bike
                       shop. Should not be strictly liable because did everything necessary – i.e.
                       took meds – and couldn’t have foreseen seizure.
                  g. Exception – Gould v. American Family Insurance: Nurse sued when
                       injured by Alzheimer’s patient. Court reversed finding for plaintiff,
                       acknowledging that, yes, person’s mental infirmity normally does not
                       impact reasonable person standard; however, holding that an exception
                       should be made: nurse aware of risk; D’s family took every precaution to
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                      reduce risk by putting him in the institution. Plus fear that D faking
                      infirmity to avoid liability completely unlikely in this instance.

A. Except in professional malpractice cases, evidence of compliance w/ custom relevant and
   admissible, however, not dispositive. Even in the face of uncontradicted evidence of a
   party’s compliance or non-compliance w/ custom, the jury may find that the party’s action
   was or was not negligent.
B. Although custom is not dispositive, it does:
       1. Reflect the judgment about the best way to conduct an activity
       2. Tend to show that the precaution not taken by D but claimed by P was indeed
           feasible; after all the rest of the industry takes the precaution
       3. Impress upon the jury the seriousness of what it would be doing by finding the D
           negligent; in instance of custom would essentially be finding the whole industry
           practice negligent
       4. Educate jurors about unfamiliar activities, helping them to make judgment
C. Custom depends on consensus, thus general practice not to do something not necessarily
       1. Lehigh v. Hayes: 14-year-old mine worked died. Parents claimed company
           negligent in failing to have warning mechanism in place. D not held negligent; no
           industry custom of warning mechanism. Robinson – not really a custom; no court
           would follow this today.
D. La Sell v. Tri-States Theatre Group: Theatre says not negligent when P fell because
   theatres customarily constructed in that way. However, court disagreed – custom does not
   substitute reasonable care standard. Moreover, would have been easy/cheap for theatre to
   make change/not use those seats. Plus, theatre construction very diverse.

A. Standard of Care: Doctors held to a higher standard of care. Rationale: doctors hold
   selves out as having expertise and in a contractual relationship w/ patients imposing duty to
   exercise the expertise.
B. Medical Custom: Failure to comply with custom = malpractice; Compliance with custom
   insulates D from liability.
       1. Medical profession establishes its own standards of care/custom when others
           cannot. Why? Trust in doctors and knowledge that they have expertise we don’t.
           But strictly expected to uphold this standard, in a sense strict liability.
       2. Respectable Minority Rule: If doctor can prove that departed from a custom
           because rejected by much of the profession, can get off, but must show that in turn
           complied w/ a practice followed by a respectable minority of practitioners
       3. P’s burden: In order to make out a prima facie case, P must advance experts who
           make clear to the jury the standard/custom at question.
       4. Strict Locality Rule: Required doctors to adhere only to the custom w/in their
           locality. Because of advances in communications, no longer used in its pure form
           and in some jurisdictions not at all.
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                   a. A messy situation – following medical malpractice crisis, lots of states
                       reverted entirely; others employ combo standard (ex: exception in cases
                       where evidence shows community standard more appropriate).
                   b. Advantage of statewide/national standard – parties rely on experts w/in
                       industry to provide testimony; those w/in same community reluctant to go
                       against each other; can tap many more experts when have national pool.
                   c. Brune v. Belinkoff: Woman sued for negligence in administration of
                       anesthetic. Court rejected community custom standard applying national
                       standard and holding doctor liable.
C.   Informed Consent: A distinct cause of action, based on doctor’s failure to obtain P’s
     informed consent to treatment. P may prevail even if treatment complied w/ standards, if it
     resulted in injury, and if P would not have consented had he been adequately informed (i.e.
     must show causation!). (So, P doesn’t have to prove malpractice, just has to shown would
     not have undergone procedure if was fully informed.)
         1. Purpose: protect patient’s autonomy
         2. No consent = battery.
                   a. Hernandez: P consented only to quadrantectomy if tissue shown to be
                       malignant; Doctor guilty of battery since performed surgery when tests
                       inconclusive w/out consent.
         3. Failure to obtain informed consent = negligence or malpractice.
                   a. Canterbury v. Spence: P suffers paralysis following surgery when falls w/
                       voiding. Sues dr. and hospital for failing to inform him of the risks.
                       Doctor liable (exception to custom requirement).
         4. Doctrine of Informed Consent: Requires doctor to inform the patient of the risks,
             benefits, and probability of success. To standards to determine whether satisfied:
         5. Reasonable Patient Standard: Doctor must disclose information that a reasonable
             patient in what the physician knows to be the patient’s situation would wish to
             know. Not required to provide information about idiosyncratic concerns, unless
             aware of those concerns (ex: ear model). Actionable as negligence (not
             malpractice). (Having heard risks/benefits, jury decides what P would want to
         6. Reasonable Physician Standard: P must prove doctor failed to comply w/ the
             standards of the profession regarding disclosure. Actionable only as malpractice.
             (Having hear both risks/benefits and standard, jury decides whether met.)
         7. Causation: P must show that would have declined the treatment that caused the
             injury had he been given the requisite information. (Some courts even require P to
             show that the treatment he would have selected would have caused less injury.)
                   a. Objective View: Tests what an objectively reasonable person w/out the P’s
                       idiosyncrasies and preferences would have done if informed.
                   b. Semi-Objective View: Tests what a reasonable person in the P’s position
                       would have done if informed; P allowed to testify about her
                       idiosyncrasies, however, must be persuasive.
D.   Exceptions – don’t need to disclose if:
         1. A commonly known risk, like infection;
         2. If P says doesn’t want to know;
         3. If P is incompetent (in which case tell trustee);
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        4. If disclosure will harm the P.

 Don’t forget that statute just a minimum, court could determine that common law
  reasonable standard would require more!!!

A.   Presumption that violation of a statute designed to promote safety is negligence per se (i.e.
     negligence as a matter of law, decided by judge); thus, in the absence of a competent
     excuse the jury is required to find violation of the statute is negligent.
         1. In some jurisdictions, violation of admin regulations and municipal ordinances also
             apply; on other hand, often just considered evidence of negligence.
         2. Martin v. Herzog: (Cardozo) Martin’s failure to have buggy lights on when dark, in
             violation of statute, was negligence and precluded him from suing Herzog for
             injuries sustained in crash.
B.   Three types:
         1. Statute expressly provides civil liable/creates private cause of action (not common;
             ex: dram shop acts);
                   a. Ross v. Ross (Ross bought liquor for 19-year-old brother, after which he
                       got in a car accident caused by his intoxication and died. Parents sued):
                       Although dram shop statute intended to apply to people in the business of
                       selling liquor, also designed to hold the person who can best bear the loss
                       strictly responsible, which in this case is the brother; thus, brother liable.
         2. statute interpreted to apply (ex. Ross v. Ross (dram shop act for businesses
             interpreted to apply to individual); or
         3. Statute used to set a standard of care under the common law.
                   a. Martin v. Herzog (above).
C.   Defense #1: For D to show that P not in the class of persons or did not suffer the type of
     harm intended to be protected by the statute. D rarely prevails! Only prevails unless P
     could not by any stretch of the imagination have been an intended beneficiary! Modern
     courts normally say secondary purpose to protect individuals in P’s situation.
         1. Examples: courts routinely hold that bar can be liable to third person hit by drunk
             person, even though dram shop act initially only intended to protect drunk (Vesely
             v. Sager); courts routinely hold that owner of vehicle whose car stolen when leaves
             key in ignition, liable to third person who hit by thief even though statute intended
             to protect owner of the vehicle (Ross v. Hartman).
         2. Outlier: Osterman v. Peters: child trespassing and falls into pool dying when, in
             violation of a statute, homeowner did not have fence and gate not latched properly.
             Court says this isn’t a Martin case because trespassers not part of the class of
             persons the statute is designed to protect. Ridiculous!
D.   Two analyses: 1. Examine legislative history or statute’s preamble; 2. If violation of the
     statute does not at all increase the risk of harm to those in P’s situation, then courts unlikely
     to hold P as intended beneficiary.
E.   Legally Cognizable Excuses – very limited!
         1. Necessity: if individual does not have a reasonable opportunity to know of factual
             circumstances that make a statute applicable, may be excused.
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                  a. Tedla v. Ellman: P struck by D’s vehicle when, according to statute,
                     walking on wrong side of road. Court said wasn’t negligence per se
                     because P testified that reason on wrong side because the traffic was heavy
                     on other side and would have been dangerous to be over there.
        2. Incapacity: children are excused if incapable to comply; reasonable efforts of
           compliance by adults sometimes excused even when violation.
        3. Emergency: if noncompliance is safer, then the excuse of emergency may be ok.
F.   Can apply a federal statute in a state case as long as P intended beneficiary
        1. Loewy v. Stuart Drug & Surgical Supply, Inc.


A.   Judge rules on questions of duty.
B.   For questions of pure fact and mixed questions of law and fact: Judge rules on issues
     about which “reasonable people could not disagree;” Jury considers issues about which
     “reasonable people could disagree.”
         1. Under this rubric, Holmes thought that over time similar cases would go less to jury
              and more to judges (as decisions accumulated it would be clear which way
              reasonable people would rule/rules would develop). Not so:
         2. Similar cases tend to go to jury even after already have been decided although
              becomes less likely that the jury will disagree w/ previous decisions because: 1.
              Fact patterns may differ enough that jury would come out differently (rules don’t
              take into account variables); and 2. It’s less dangerous politically to leave close
              decision about behavior norms to jury.
C.   B&O RR v. Goodman: P held contributorily negligent when hit at RR crossing. Should
     have gotten out of car and made sure all clear. Example of court taking the case away from
     the jury and saying that this is a standard as a rule of law that so clear that judge should
     take it away and make decision (however, later court in similar situation held otherwise).
D.   Lorenzo v. Wirth: Woman injured when falls in coal hole Judge does not give to jury
     question of whether D negligent because situation so clearly not – the building and
     sidewalk were in plain view; delivering was clearly going on, coal on ground, workers
     there, etc.


A.   Plaintiff normally bears burdens of production and persuasion (by a preponderance of
     evidence/the jury must be persuaded that the D was “more probably than not negligent”).
     Otherwise, judge will grant DV.
         1. Circumstantial evidence can be sufficient to go to trial if inferences can be drawn.
B.   Res Ipsa Loquitor
         1. Invoked in cases in which there is circumstantial evidence that the D was probably
             negligent in some way, w/out supporting an inference of the particular way in
             which he was negligent.
         2. Three prerequisites to its application (w/ some differences b/w jurisdictions, p 96):
                   a. The event causing the injury must be one that ordinarily occurs because of
                      negligence by someone in the D’s position;
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              b. The instrumentality causing the injury must be w/in the exclusive control
                  of the D;
                         i.   Fix control at time the negligence occurred not when the
                              accident occurred.
              c. The injury must not be due to any voluntary action or contribution by the
      3. Once met, the jury is permitted though not required to find that D negligent –
          allows P to meet burden of production (in other words, P survives DV motion).
      4. Courts give various effect to res ipsa loquitur:
              a. It warrants an inference of negligence which the jury may draw or not, as
                  their judgment dictates;
              b. It raises a presumption of negligence which requires the jury to find
                  negligence if D does not produce evidence sufficient to rebut the
              c. It not only raises such a presumption but also shifts the ultimate burden of
                  proof to defendant and requires him to prove by a preponderance of all the
                  evidence that the injury was not caused by his negligence (272).
      5. Judge normally makes preliminary determination that something w/in realm of
          RIL; jury then draws inference (or not).
      6. Smoking out evidence: Can function to “smoke out” evidence from D –
          incentivizes D to provide additional evidence. Much needed at a time when P’s
          often didn’t have access to D’s evidence. Arguably less needed today under
          modern discovery regime.
              a. In order for RIL to work like this need: 1. At least one D who actually has
                  information (it’s quite possible none do); or 2. At least one D who was
                  willing to lie in deposition, but not in trial.
              b. Ybarra v. Spangard: Patient awoke w/ injured neck after appendectomy.
                  No way to tell which of 7 doctors caused injury. Example when RIL
                  could be used to smoke out evidence. Although, as it turns out, Ds still
                  refused to tattle and, thus, were found collectively negligent.
      7. Most courts permit the application of res ipsa loquitur to the sudden departure of
          motor vehicle from their normal paths, in the absence of evidence of a cause other
          than the driver’s negligence (274).
      8. Ristau: One of first cases to use RIL. Collapsed trestle; evidence in control of D.
      9. Colmenares: Outlines three requirements of RIL. Held that exclusive control
          standard can be met even when D shares responsibility w/ an insurer, or even
          someone else, as long as it’s clear that negligence not related to a third, unrelated
          party. Also, owner of public areas has non-delegable responsibility to keep it
      10. Clark v. Gibbons: Spinal anesthetic wore off because doctors gave too little;
          stopped operation, thus P now has osteoarthritis. P won RIL instructions.
          Another example of using RIL when multiple people in control.

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A.   P needs to prove that the tortious conduct was a necessary condition to the occurrence of
     his injury.
B.   “But For” Test
           1. Requires a determination whether, “but for” the D’s negligence/breach of
               standard of care, the P would have suffered injury or damage. If no, then cause-
               in-fact proved. And, cause-in-fact a necessary, but not sufficient condition of
               liability (also need proximate cause).
           2. Berry v. Sugar Notch Borough: Man speeding when tree fell on car and damaged
               it. Court held that Berry didn’t give up right to recover by breaking the speed
               ordinance. Although he created a risk, it was not a but for cause of the injury.
C.   “Substantial Factor” Test
           1. Merely requires a finding that the D’s negligence a major contributor to the
           2. Used only occasionally instead of “but for” test; rejected by most courts.
           3. Generally unhelpful except in cases where there are multiple acts of negligence.
           4. Zuchowicz v. United States: P developed a rare disease after given an overdose of
               medicine. Necessary to determine which the substantial factor – the medicine
               itself (in which case there would be no liability to dr.) or the overdose. Must be a
               causal link not only b/w the act and injury, but also b/w the
               negligence/wrongfulness and injury.
           5. Two fires – one negligent and one not. Court held that if can find negligent fire a
               substantial factor/cause, then can be held liable.
D.   Sometimes difficult to tell which test using; they both require the same showing of what
     would have happened had the D not been negligent.
           1. Reynolds v. TX & Pac. Ry. Co.: In absence of light, heavy woman fell down steps
               when running to train. Court held that if P proves negligence of D “greatly
               multiplied” the chance of accident had made out jury question on causation issue.
               Not clear which standard using; just clear that asking the jury to make a judgment
               about what would have happened if the D had not been negligent. Not necessary
               to eliminate all other causes in order to find that D’s negligence probable
E.   Sometimes best way to prove D’s negligence caused harm to eliminate a series of other
     possible causes, leaving D’s as the only possibility.

     Exceptions to conventional test for causation
F.   Multiple Causes (fire hypos):
          1. When two negligent causes/Ds simultaneously cause injury, both liable. Ex:
             Corey v. Havener: Corey brought suit against two Ds alleging their recklessness
             startled his horse and caused injury. Despite Ds’ efforts to the contrary, judge
             held that Ds could be held jointly and severally liable if court couldn’t single out
             one person to blame and both contributed.
          2. When one negligent cause and one non-negligent cause, some courts will hold
             negligent party liable and others won’t; for those that do impose liability, it’s
             essential that the negligent cause arrive no later than the non-negligent one.
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          3. When two negligent causes, but one occurs first, that one will be liable and
             second one may be let off even though also negligent.

          4. Joint and Several Liability: When multiple Ds, each liable to the P as if sole
             wrongdoer and P can recover the full amount of damages from either D; the P
             cannot, however, recover more than the amount of his damages. (Pre-
             comparative negligence – i.e. assuming P not liable at all; see comparative
             negligence for current theories)
             Ex: Michie v. Great Lakes Steel Division
                a. Puts burden on Ds to pay P even if one unable.
                b. State contribution statutes have created right for D who paid in full to be
                    reimbursed by other Ds for their portion.
                c. Imposed in three main situations: joint tortfeasors (Ds, say, in business
                    together); independent tortfeasors, for single theoretically indivisible harm
                    (two random Ds w/ indistinguishable contribution of harm); and
                    independent tortfeasors, for theoretically divisible but practically
                    indivisible harm (can prove portion of harm caused by each D).

G.   Indeterminate Causes
          1. P clearly injured by tortious conduct, but cannot prove which of several possible
             Ds was more probably than not the actual causes of his injury; or, D clearly
             injured some but not at all Ps.

          Multiple Ds
          2. Alternative Liability: Alternative liability imposes liability on all negligent Ds,
             each of whom is equally likely to have harmed the P; burden shifts to D to
             disprove caused harm. Most likely in case of 2 Ds; court very reluctant to apply
             when more because likelihood that each liable less (i.e. when 2, 50% probability;
             when 3 drops to 33%; etc.). Ex: Summers v. Tice: two negligent hunters shot in
             direction of P; one hit P, not clear who. Court held both liable under theory of
             alternative liability, rather than exonerate both.
          3. Industry-Wide Liability:
                 a. Ex: Hall v. E.I. Du Pont: 13 children sued 6 manufacturers of blasting
                     caps. Court held that if a child could establish that it was more likely than
                     not that any of the six Ds manufactured the cap that caused the injury, then
                     burden shift to each D to prove that its cap didn’t cause injury. Court’s
                     rationale seemed to be that Ds produced parallel products and that there
                     was a small # of Ds.
          4. Market-Share Liability: Imposing liability on Ds in proportion to market share
             forces each D to pay compensation for the amount of injury it caused, although
             not necessarily to those particular persons it harmed (so, good for deterrence; not
             so good for corrective justice – i.e. no matching up of exact D to P).
                 a. Requisites (which make application pretty rare):
                        i.   Injury/illness must be caused only by product – i.e. a “signature
                             disease” (there can be no other causes, 100% of market must cause
                             100% of disease)
                                                                       Torts Law Outline        12

                  ii.  Products/toxic substances produced by different Ds must be
                 iii. Market share information must be available (and, when it is, do we
                       use state, national, or local data?)
                 iv.   A substantial share of the market should be joined as Ds
                            Then have two approaches – relative market share (i.e. hold
                                Ds 100% liable, but divvy recovery up according to their
                                share in the market) v. absolutely market share (i.e. hold Ds
                                liable only up to the total market share they represent, so
                                under-compensatory) (120)
             b. Ex: Sindell v. Abbott Labs: DES/miscarriages. Use market share to
                determine liability; made sure had substantial share of market represented,
                otherwise, it would be more probable than not that weren’t responsible.
             c. Ex: Skipworth v. Lead Industries: P got lead poisoning from paint; unsure
                which company manufactured. Unlike Sindell, product not fungible -
                companies produced different types of paint w/ differing lead contents;
                also, manufactured over very long time, so high chance that companies
                that weren’t at all involved would be held liable.
             d. Common instances where market liability generally not used: asbestos,
                lead-based paint, other drugs

      Probabilistic Causation
      5. Loss of Chance to Survive: Case where already-injured/ill P whose chances of
         recovery or survival are reduced by D’s negligence (most typical in healthcare
         cases where such data available). Determine recovery by calculating difference
         b/w original chance of survival and reduced chance – i.e. D held liable for
         reduction in P’s chance of surviving.
             a. Controversial in cases where survival initially less than 51% (otherwise
                 it’s a simple question of whether he would more probably than not have
                 lived if it weren’t for the D’s negligence).
             b. Some courts insist that chance of survival must be above 50%.
             c. McKellips v. Saint Francis Hospital: Patient misdiagnosed as having
                 gastritis; later suffered heart attack and died. Court held that lost of
                 chance doctrine applicable.
      6. Toxic Harms and Statistical Proof of Causation: In cases where have identified
         D, but not possible to prove which individuals D injured, courts generally won’t
         allow generalized statistical evidence. Ex: exposure to a substance causes some –
         say 60% - but not all of a particular type of cancer. (Why? 121-122)
             a. Courts have not allowed recovery on basis of creation of risk along.
                 However, if P suffered some immediate harm, may recover for
                 present estimate of probable future losses arising from it. (E.g.
                 accident causing uncertain future medical costs or earnings loss –
                 court will estimate future loss and discount to present value.)

                                                                              Torts Law Outline         13

A.   P must prove the D’s actions were a “proximate cause” of his injury in order to go to jury
     (a liability-limiting doctrine).
B.   Foreseeability Test: The D’s negligence is a proximate cause of the P’s harm if causing
     that harm was a foreseeable result of acting as the D did. (Ask yourself: was the P’s harm a
     foreseeable result of the D’s negligence?)
           1. In ordinary cases this is easy to satisfy – i.e. when there is no question that the D
                was negligent and that the negligence was a cause in fact of the P’s harm. If D
                negligent and the negligence was a cause in fact of the P’s injury, then as a matter
                of law the D’s negligence was also a proximate cause of the P’s harm.
C.   Harm w/in the Risk Test (clarifies and sharpens Foreseeability Test): The D’s negligence
     was not a proximate cause of the plaintiff’s injury if the injury to the P was not a harm-
     w/in-the-risk that made the D’s action negligent. (Ask yourself: Is the risk of the injury the
     P suffered one of the risks that makes it negligent to do x? If no, then not a PC.)
           1. Berry v. Borough of Sugar Notch: Speeding ordinance not designed to protect
                trolleys against trees falling, so scope of liability did not extend to that harm.
           2. Gorris v. Scott: Rule to keep sheep in pens on boat not to keep them from
                washing overboard, but to prevent spread of contagious disease; so, D’s scope of
                liability didn’t extend to sheep overboard.
D.   More difficult, middle-ground cases: Although the risk that materialized in harm was not
     the principal risk that made the D’s action negligent, was it sufficiently significant to be a
     factor in the negligence determination (i.e. was it nonetheless a proximate cause)?
           1. So, can sometimes have a proximate cause even when tests not met. Ex: statute
                meant for RR companies to put up fences to keep livestock out. Will be held
                liable when violate it and child injured, because a sufficient link.
E.   Advanced Issues (not resolved by tests):
           1. Intervening Cause: An intervening act by a third party or force does not break
                the chain of causation leading from the D’s act to the P’s injury if the intervention
                is foreseeable.
                    a. Vesely v. Sager: Risk that drunk person drives negligently one of the
                         foreseeable risks that makes it negligent to serve drunk person, thus
                         bartender an intervening, proximate cause/can be held liable.
                    b. Ross v. Hartman: It was foreseeable that service shop’s negligence in
                         leaving the keys in car could lead to car being stolen and thief getting in
                         accident; thus service shop can be held liable.
                    c. Increasingly used because holding ‘original’ wrongdoer liable as well as
                         ‘third-party’ wrongdoer increases likelihood that P will be paid out (for
                         instance, bar or service shop more likely to have funds/insurance).
           2. Superseding Cause: An intervening act that is so remote it shouldn’t be taken
                into account at all in determining whether D’s action negligent; not a proximate
           3. What must be foreseeable? Is there liability despite the unforeseeability?
                    a. Unforeseeable Plaintiffs: P must be foreseeable otherwise liability not
                         imposed on D. Why? D cannot take into account unforeseeable Ps
                         precisely because they’re unforeseeable and thus is not at fault for failing
                         to consider their safety.
                                                                          Torts Law Outline       14

                       i.  Palsgraf v. Long Island RR: Court held that it was not foreseeable
                           that RR employee’s actions dealing with package would result in
                           injury to Palsgraf, D thus not held liable (i.e. turned out to be
                           fireworks, when dropped, knocked scales, which caused injury)
               b. Unforeseeable Extent of Harm: Foreseeability least often required.
                   Governed by the “thin-skull” rule – it is no defense that the P had an
                   unforeseeable weakness that caused his injury or caused it to be worse
                   than anticipated. Why? Otherwise D would always try to show that harm
                   more than normal, which happens often – someone sick/weak for
                   whatever reason, but doesn’t mean D should get off. Also, promotes
                   optimal deterrence.
                      i.   Kinsman I: Improperly moored boat causes flooding; houses three
                           miles away affected. Held that plaintiffs/landowners foreseeable.
                           Fact that extent of damage not foreseeable didn’t bar recovery.
               c. Unforeseeable Types of Harm:
                      i.   In re Polemis v. Furness Withy & Co.: Plank fell because of D’s
                           negligence. Expected to damage ship; however, unexpectedly
                           produced a spark that caused an explosion. Court held that even in
                           the case of an unforeseeable type of harm, D’s negligence a
                           proximate cause as long as the harm a “direct consequence” of it.
                     ii.   The Wagon Mound, No. 1: Overruled Polemis. D negligently
                           flushed oil from ship into water. Expected to foul P’s dock;
                           however, in end caught fire and ruined dock. Court held that
                           there can be no liability when a foreseeable plaintiff suffers an
                           unforeseeable type of harm, even if that harm is a direct
                           consequence of such negligence (but that there is still liability
                           to a foreseeable P for an unforeseeable extent of harm) (general
                           rule). However, courts divided on whether to follow this or
                          The Bottom-Line: Courts do often invoke foreseeability idea to
                           limit liability for harms that are considered to be not part of
                           the “natural” set of risks that make the actor negligent.
               d. Unforeseeable Manner of Harm: (P unquestionably foreseeable; type of
                   injury foreseeable, but injury occurs in a bizarre manner.) Foreseeability
                   least often required/unforeseeability does not bar recovery as long as can
                   foresee P; however, courts do draw limits when causal chains seem to
                   stretch too far in time or space.
                      i.   Marshall v. Nugent: P able to recover when got in car accident w/
                           D, who negligent, and not injured; however, injured when walking
                           on the road after the accident and struck by a third car.
                     ii.   Illidge v. Goodwin: Even if your harm precedes an immediate
                           following harm, can still be held liable (i.e. it didn’t matter that
                           person came up and petted horse and that could be why broke
                           window; Goodwin shouldn’t have left horse there in first place.)
F.   Why require proximate cause?
         1. Match liability to type of risk by reason of which act is deemed wrongful.
                                                                            Torts Law Outline      15

          2. Confine liability w/in a time frame in which the risk can be considered still a
             “live” risk.
          3. Limit amount of liability. (Under thin-skull principle actor may be liable for
             extraordinary damages as long as the nature of the injury is w/in the risk.)

In each case, D bears burden of pleading and proving necessary facts: 1. That P’s conduct was
negligent or consisted of assumption of risk; 2. That such conduct was a cause in fact of P’s
injury; and 3. That such conduct was a proximate cause of the injury.

A.   Contributory Negligence
         1. The failure of P to exercise reasonable care to protect self or property from the
             risk of harm. Bars P ability to recover. Exception: intentional torts.
         2. Rationale: It’s unfair to impose liability on D when P negligently contributed.
         3. Criticisms: It is also unfair to completely relieve D of liability merely because P
             also a cause. And, fails to deter potential D who can anticipate being let off.
         4. Limits to contributory negligence:
                 a. Must be causally contributory (in both the but-for and proximate cause
                 b. No bar to reckless or intentional torts.
                 c. May not apply to cases of “last clear chance.”
                 d. Generally not imputed to others. Dashiell: wife’s negligence in driving
                     the golf cart not imputed to husband because not a joint enterprise.
         5. Additional Doctrinal Exceptions Intended to Ameliorate Harsh Effect:
                 a. The Safety Statute Exception: When D’s negligence consists of the
                     breach of a statute designed specifically to protect a certain class of
                     persons unable to protect their selves against the D’s negligence, their
                     contributory negligence is not a bar to recovery.
                 b. The Great-Degree-of-Blame Exception: When P negligent, but D’s
                     conduct more blameworthy than mere negligence (i.e. gross negligence or
                     more (wanton & reckless)), P’s negligence does not bar recovery.
                 c. Last Clear Chance: Trumped contributory negligence; If negligent D had
                     last clear chance to avoid harming the P, then P’s negligence not a bar to
                     recovery. (Over time, morphed so that D’s last chance didn’t even need to
                     be clear or last – only needed to “have reason” to appreciate the danger; a
                     weakness of the doctrine; and eventually a doctrine that helped transform
                     to comparative negligence.)
                 d. The Jury Question/General Verdict Approach: Juries generally favor
                     Ps, thus handing question to jury essentially ameliorated harsh effects.
                     Although instructed otherwise, also often reduced P’s award according to
                     his negligence, thus applying “under-the-table” comparative negligence.
                 e. Rescue Doctrine: P not barred from recovery if engaged in non-reckless
                     attempt of rescue. Ex: Eckert v. Long Island RR Co. (essentially
                     cost/benefit analysis – value of human life)
                                                                          Torts Law Outline        16

          6. Contributory negligence a defense to strict liability in some jurisdiction and not
              in others; depends on type of strict liability at issue. Ex: for particularly
              dangerous activities, might not be a defense; but for product liability might.
          7. Assumption of risk completely bars recovery (normally only) when P’s
              assumption unreasonable and therefore negligent.
          8. Butterfield v. Forrester
          9. Hensel v. Beckward
          10. Gyerman v. U.S. Lines: example of ameliorating harsh effects.
          11. Smithwick: P’s conduct did not constitute contributory negligence – pretty
              revolutionary for time. Told not to go to end of platform because slippery and
              could fall. In end, P sustained injury because brick wall unexpectedly fell,
              causing him to fall. It’s alright that this manner of harm unforeseeable, because
              type of harm foreseeable – i.e. injuries sustained as a result of a fall.
          12. North Bend Lumber Co. v. City of Seattle: Appeals Court said not an issue of
              contributory negligence. People don’t have duty to use/not use property in
              way just in case someone else negligent. P created small pool/dam in water to
              hold logs; when heavy rains there was flooding due in part by D’s negligence, but
              also exacerbated by dam.
                  a. See this outcome in several property cases – don’t want to subjugate
                      people’s property use to tort law. On other hand, in case where, say,
                      don’t wear seatbelt or jaywalk, would be considered a case of avoidable
                      consequences where P’s action reduces liability.

B.   Doctrine of Avoidable Consequences: Damages limited when P failed to mitigate harm
     after accident occurred. Reasonableness standard: what would a reasonable person have
           1. Classic case: post-accident, P refuses medical treatment.
           2. Pre-accident, non-use of seat-belt: Seatbelt defense generally not permitted.
               Some jurisdictions allow the reduction of damages payable to P who failed to
               wear a seat belt under the doctrine of avoidable consequences, rather than under
               either a contributory or comparative negligence approach. Law v. Superior Court
               for the County of Maricopa, dissent suggests same: “The seat belt defense deals
               w/ diminution of damages and not w/ the existence of a cause of action.
               Diminution of damages is more appropriate when the injured party could have
               avoided some of the injury by the use of reasonable efforts.” (So, not a separate
               cause of action like contributory/comparative negligence.) (Majority, on other
               hand, suggested that non-use of a seatbelt should be considered under
               comparative fault. p. 455)
           3. When is there a duty to mitigate or take avoidance precautions?
                   a. Not when medical treatment entails unusual risk. (One argument that
                       victims shouldn’t have to seek out medical aid against their religion
                       because part of “thin-skull” consideration.)
                   b. Probably no obligation to use one’s property so as to avoid injury from a
                       negligent neighbor – North Bend Lumber. Doesn’t make sense in terms
                       of policy of avoidable consequences.
                                                                            Torts Law Outline        17

C.   Comparative Negligence
        1. P’s recovery reduced in proportion to the amount of negligence attributable to
            him. (*comparative negligence, not comparative causation.) Or, governs
            apportionment b/w Ds.
        2. Pure Comparative Negligence: P’s negligence never a complete bar to recovery.
            Applies no matter how more negligent P was than D.
        3. Modified Comparative Negligence: P barred from recovery if found more
            negligent than D. *More often used.
                a. Some jurisdictions say recovery barred if P50-D50 negligent. Other
                     jurisdictions says recovery only barred if P51-D49 negligent (so P could
                     recover 50% if 50-50 under this method).
        4. Multiple Ds: What if P 40% at fault, D1 35%, and D2 25%? Most courts would
            say that P should still be able to recover since less negligent that D’s combined,
            although more negligent than them individually (= aggregation). Rationale:
            fairness to P.
        5. Joint and Several Liability: Pre-comparative negligence, P rightly recovered
            100% from multiple Ds, no matter if one insolvent and required a D to pay more
            than his proportion. What to do when P comparatively negligent? Three
                a. Hold Ds jointly and severally liable for the total of their portion no matter
                     if one insolvent and other D has to cover for him.
                b. Require that Ds pay only the proportion for which they’re liable. If one D
                     insolvent, tough luck for P.
                c. (*best option) Require that solvent D and P bear the risk of the other D’s
                     insolvency, according to the negligence proportional to them.
                        i.   Ex: P = 40%; D1 = 35%; D2 = 25% and insolvent. D would cover
                             35/75 (40+35) of D2’s harm. P would cover rest (40/75).
        6. Disney: comparative negligence does not necessarily replace joint and several
            liability. Differing views in differing states (i.e. above).
        7. Effects on contributory negligence-related doctrines:
                a. Last Clear Chance: most courts hold that has no role under comparative
                     negligence (although, fact that D could of but failed to take action to avoid
                     injury at end one of many factors that may be considered by jury);
                b. Greater-Degree-of-Harm: Varies. Generally, P’s negligence no defense in
                     terms of intentional torts, but not abolished in other cases.
        8. Comparative negligence generally employed in strict product liability cases.
        9. Assumption of risk doesn’t function as separate doctrine under comparative
            negligence; simply taken into account when calculating proportion
        10. Setoffs: Ex: P to recover $100,000 and D to recover $50,000
                a. In accident where neither P nor D has insurance (or insurance not at
                     question), will award P difference in two awards ($50,000) (i.e. setoff).
                b. In accident where both P and D have insurance, won’t setoff, will provide
                     full award. Why? Function of liability insurance to protect people from
                     parties who can’t pay judgment.
        11. Dashiell v. Keauthou-Kona Co.: Accident on gold cart. P’s wife’s negligence
            not imputed onto husband because not a joint enterprise; general rule
                                                                             Torts Law Outline        18

             (otherwise, in common law often bar recovery when one member of joint
             enterprise liable). Likewise, child’s negligence not imputed to parents.
D.   Assumption of Risk
     Concept has four different meanings and legal consequences in four different contexts:

          Express Assumption of Risk: Individual contractually agrees in advance to waive
          his or her right to bring a tort action.
          1. In order to be enforceable, the waiver must present full disclosure and not be
              deceptive (i.e. procedural unconscionability as opposed to substantive
          2. Seigneur: Fitness center’s waiver enforceable. D does not provide an essential
              public service such that an exculpatory clause would be patently offensive; the
              services offered are not of great importance or of practical necessity to the public
              as a whole; the health club is not anywhere near as socially important as
              institutions or businesses such as innkeepers, public utilities, common carriers, or
          3. Gross v. Sweet: Sky diving waiver not upheld. The Court of Appeals affirmed the
              order of the Appellate Division and answered the question certified in the
              affirmative, holding, in an opinion by Judge Fuchsberg, that the release did not
              bar plaintiff from suing for personal injuries he allegedly incurred as a result of
              defendant's negligence, since it did not express any intention to exempt the
              defendant from liability for injury or property damages resulting from his failure to
              use due care either in his training methods or in his furnishing safe equipment,
              and that the agreement could most reasonably be taken merely to emphasize the
              fact that the defendant was not to bear any responsibility for injuries that
              ordinarily and inevitably would occur, without any fault of the defendant, to those
              who participate in such a physically demanding sport.
                 a. Waiver must be very clear in order to protect a party from its own
                     negligent acts! Does not suffice to say, we waive all responsibility.
          4. Dalury v. S-K-I, Ltd: held that because of number of people using mountain, ski
             resort essentially becomes a public accommodation rendering a service of public
             interest. The ski mountain should not be able to waive liability. It is in the best
             position to minimize accidents by foreseeing and minimizing hazards and
             guarding against the negligence of their employees.
          5. Exceptions: P must have entered into waiver voluntarily and must appreciate its
             significance; health care providers’ disclaimers almost always invalid.
          6. Tunkl factors – helpful in straight-forward not enough information cases
                 a. Whether business of a type/product that generally thought suitable for
                     public regulation;
                 b. Whether service of great importance to the public;
                 c. Essential nature of service (linked to b.)
                 d. Whether party offering it has a decisive advantage of bargaining strength
                     against any member of the public (also related, is there an asymmetry of
                 e. Whether adhesion contract (take it or leave it) v. negotiation
                 f. Related to adhesion contract, whether or not it includes an option to pay
                     more and get coverage; and
                                                                              Torts Law Outline         19

                  g. Whether, as a result of the transaction, the person is subject to control of
                     seller, subject to the risk of carelessness by the seller.

           Implied Assumption of Risk (three kinds)
           7. No Duty of Care Breach by the Defendant: Another way of saying there is no
              liability if the D did not breach a duty of care to the P; however, often turns on
              factors that involve the openness of the risk and voluntariness of the P’s
              participation, as well as reasonableness of risks posed by the activity in light of its
              benefits. (P essentially failed to make out prime facie case.)
                  a. Example: baseball stadium not liable for injury to person sitting behind
                       first base when ball hit him for failing to have net up. Similarly, Brown v.
                       San Francisco Ball Club (= primary assumption of risk (i.e. D simply
                       didn’t have a duty to P)
                  b. Wooldridge v. Sumner: horse rider not liable to spectator, no duty to be
                       more skilled to avoid accident. (= primary assumption of risk)
                       (versus secondary assumption of risk = D does owe you a duty, but you
                       were unreasonable in taking a risk)
           8. A Subset of Contributory Negligence: P’s conscious taking of an unreasonable
              risk. Unlike 1 and 2 above, an actual defense that D may use.
           9. Conscious, Reasonable Risk-Taking: Non-negligent risk-taking – generally not
              a defense/P not liable.
                  a. Eckert: P not negligent in risking life to save child.


***See also: Actual Causation, F. 4. And Defenses Based on Plaintiff’s Conduct, C. 5.

P v. A & B
P’s injury = $100K
P settles w/ A for $75K

A.   Can A seek contribution against B for B’s pro-rata share? In most jurisdictions, if it turned
     out in judgment that A paid more than pro-rata share, can seek contribution against B/non-
     settling party.
B.   What if B didn’t settle and in final judgment paid more than pro-rata share? Can B seek
     contribution against A (who already settled)? Generally no, because would otherwise make
     settlements unpredictable and useless (i.e. A could settle and think done but then find out B
     wants more from him).
C.   D2 can be indemnified to D1 if derivative liability.
D.   Corey v. Havener
E.   Michie v. Great Lakes Steel Division
F.   Walt Disney World v. Wood

                                                                          Torts Law Outline        20

Normally, asking whether D had a duty to P and whether that duty was breached just another
way of asking whether the D was negligent and whether the negligence was a proximate cause of
P’s harm. However, in five cases, it is proper to question D’s duty:

A.   Rescue
         1. Traditional rule: In the absence of a special relationship or circumstances, a
            person does not have an affirmative duty to rescue another person from a
            position of danger. (Even when the risk to the rescuer is negligible and the danger
            is great).
                a. Yania v. Bigan
         2. Ames (if no burden to help/rescue, person has duty to rescue) v. Epstein (this
            isn’t an easy line to draw; ex: charity where say if give $10 will save life).
                a. Possible explanation: can draw the line b/w cases where have foreseeable
                    P and charity cases where don’t. Also, we have institutions to help save
                    statistical lives (i.e. charities), but don’t have institutions to save the
                    person in danger in front of you.
         3. Exceptions:
                a. Pre-Existing “Special Relationship”– have duty if in special relationship
                    w/ person; generally includes parents, custodians, child-care professionals,
                    babysitters, common carriers (w/ customers), and innkeepers (w/
                    customers) (i.e. employment, social host, business, family, and
                    professional relationships).
                        i.   These relationships not always sufficient to create duty
                             however! Ex:
                               Harper v. Herman: D had no duty to rescue by warning him
                                   of shallow water when invited him onto his boat; no special
                               Yania v. Bigan: Yania died when helping Bigan at coal mine
                                   – jumped and drowned in water. Wife asserted that Bigan
                                   negligently cajoled Yania. Court held that Bigan had no legal
                                   duty to Yania, that he was a grown man who could make own
                                   choices, and as such that D had no duty to rescue.
                               Lamb v. Hopkins: Probationer didn’t have custodial duty,
                                   simply required to provide certain information to court.
                    ii.      Tarasoff v. Regents of Univ. of CA: P’s daughter killed by D’s
                             patient. Dr. had duty to inform decedent that patient had
                             threatened to hurt her. Not widely adopted, even w/in CA.
                             Essentially limited to psychotherapists where followed.
                b. “Misfeasance”– A D who negligently places a P in danger may be held
                    liable for negligently failing to rescue him from that danger. (Undertaking
                    an affirmative action, but negligently carrying it out or desisting.)
                        i.   Bloomberg v. Interinsurance Exch. Of Auto. Club: Two truck
                             liable when negligently failed to show up for son who was then hit
                             by a drunk driver.
                       ii.   H.R. Moch v. Rensselaer Water Co.: Moch alleges that water co.
                             should be held liable for failing to provide enough water although
                                                                           Torts Law Outline       21

                             had been warned of fire; Water co. had contract w/ city. Court
                             held that D did not have duty to each and every citizen; had a
                             contract w/ the city and ‘rescuing’ every citizen would be an
                             enormous burden (don’t want to subject co. to unbounded
                  c. Non-negligent creation of danger in certain instances – in certain
                     instances, a person who non-negligently creates a danger has a duty to
                     warn people of it or even undertake rescue. Hard to distinguish these
                     cases from others.
                        i.   Montgomery v. Nat’l Convoy & Trucking Co.: Trucker liable for
                             failure to warn of danger when truck stalled and put up flares (but
                             not well enough) and as a result car collided w/ it (rise in road
                             obstructed view). (Idea of affirmative undertaking – essentially
                             started rescue by putting up flares and should finish it.)
                       ii.   Soldano v. O’Daniels: Bartender had duty to allow person to use
                             phone in effort to save decedent. Bartender refused even though
                             knew decedent in danger. “The CA exception.”

B.   Enabling Torts
         1. The D negligently enables another to cause harm to a third party. Issue: in which
             cases does the D have a duty to the third party?
         2. Examples: negligent entrustment; service station leaving key in vehicle;
             bartender; landlords to tenants, universities to students, shopping centers to
             customers, etc.
         3. Two factors normally present: 1. There’s a pre-existing relationship (created by
             contract or invitation); and 2. There are circumstances that put the D on notice of
             the risk of harm to the P from third parties.
         4. Exception: social hosts not liable if serve inebriated guest who hurts third party.

C.   Premises Liability: *See LANDOWNERS below

D.   “Pure” Emotional Loss (i.e. not the result of negligently-caused physical injury):
         1. Traditionally, no recovery in negligence for pure emotional loss. Over time, there
             has been a relaxation of the standards:
                 a. Impact Rule: Permitted recovery only if the D’s conduct resulted in some
                    physical impact on the P’s body. Over time, replaced with:
                 b. Zone of Danger Rule: Permits recovery if P in “zone” in which physical
                    injury was threatened and feared for his safety, even if no physical impact.
                    Some courts require that emotional distress have physical symptoms;
                    others have relaxed rule allowing recovery if distress caused by fear of
                    another person’s injury. (Now used in many jurisdictions.)
                 c. Dillon Rule: P need not be in zone/fear for own safety. Instead, three
                    factors considered: proximity, visibility, and relationship. (More likely to
                    recover the closer the P was to the accident, the more visible it was to P,
                    and the closer the relationship the P had w/ injured party.) (Now used in
                    many jurisdictions.)
                                                                            Torts Law Outline        22

                  d. Fear of Future Injury: In certain cases, P can recover for fear of future
                     injury if D negligently exposed him to future injury (ex. cancer).

E.   “Pure” Economic Loss (negligently-caused economic harm, occurring in absence of
     personal injury or property damage):
          1. Generally no recovery w/ very few exceptions.
          2. Justification: 1. The amount of liability could be enormous and difficult to
              predict; 2. The D in all such cases already threatened w/ substantial liability
              (likely cause other tangible damages to other parties); 3. Economic losses could
              feasibly be traced far and wide – where to draw the line?

IMMUNITIES: Limitations of Liability Resulting from D’s Identity of Relationships


A.   Spousal and parental immunity eliminated in nearly all states. Other states have made
     distinction b/w unintentional (immune) and intentional (not immune) torts. Continue to
     allow immunity for reasonable discipline of a child.
B.   Courts generally allow parental liability to their children in cases not involving negligence
     in terms of parenting – ex. automobile accidents. (Why is immunity needed??? Why
     wouldn’t a reasonable parent standard be enough to protect parents?)
C.   Competing rationales of immunity = preserving family harmony and potential for collusive
     lawsuits against insurance companies.
           1. Additional reasons for family immunity: awarding damages to child would
               deplete family resources; suing one’s parents interferes w/ parental care,
               discipline, and control; awarding damages to child could benefit the parent if the
               child predeceases the parent and the parent inherits the child’s damages.
D.   Counts v. Counts: Overruled a year later.
E.   Spousal immunity – Price v. Price: Held that immunity should be abolished.
     Acknowledged that in many cases unclear how promotes domestic tranquility.
F.   Parental immunity – Broadbent v. Broadbent: Child sued mother for negligence when
     failed to watch him in pool. Held that immunity should be abolished. Here a real
     opportunity for collusion and no family harmony at stake (real party at interest = insurance


A.   Evolved as special subsidy to charities. Largely abolished. Those jurisdictions that have
     only abolished it in part have done so in cases when charity has insurance.


A.   Municipal Immunity: Traditionally distinction b/w governmental functions (immune, by
     assumption not-for-profit government functions) and proprietary functions (not immune,
     basically commercial activities). Difficult to distinguish b/w the two, however. Some
     municipalities have gotten rid of the distinction.
                                                                            Torts Law Outline       23

          1. Gretowski v. City of Burlington: maintenance of bike path; held that government
             immune. However, difficult to distinguish – what is an essential or traditional
             function in one county may not be in another (ex. garbage collection).
          2. VA retains traditional distinction. VA and some other states generally identify
             “proprietary” functions w/ “ministerial” and “governmental” w/ “discretionary.”
          3. Where immunity is waived, duty may still be limited by common law doctrines –
             notably the so-called “public duty” doctrine.

B.   State Immunity: Traditionally immune as sovereign entities. Today immunity generally
     waived by tort claims statutes that allow recovery for “ministerial” as opposed to
     “discretionary” functions.
C.   Federal Immunity: Per the Federal Tort Claims Act, private parties can sue the federal
     government for torts in any case in which, if the US were a private person, it could also be
     sued (so, traditional sovereign immunity waived).
           1. Traditionally distinction b/w discretionary (immune) and ministerial (not
               immune) functions. Generally a hierarchy – a higher a person is, the more likely
               his decisions will be discretionary (choice); lower employees’ decisions will be
               ministerial (no choice as a matter of law (i.e. the law governing the agency).
               However, FTCA says level is not controlling; can have discretion at all levels.
           2. Discretion involves a policy-making choice.
           3. Approach: 1. Figure out what statute says about person’s authority; and 2. If it
               says nothing, look at typical practice.
           4. Discretionary functions = immune/exempt from FTCA.
           5. Ministerial functions = not immune (Berkovitz: batch certification of vaccine; D
               liable for failing to perform ministerial function of performing test.)
           6. Exception: government immune if one of its employees assaults another person
               (probably a hold-over from vicarious liability – i.e. employers not liable for its
               employees’ intentional torts);
           7. Exception: government immune from death/injury of member of armed services
               while in active duty.

D.   Officer Immunity: Generally share immunity of the government entity on whose behalf
     they act, provided that acting w/in the scope of duties.
           1. Judges, legislators, prosecutors = absolutely immune for actions w/in their
           2. President = absolutely immune for official actions.
           3. Executive officials = generally have qualified immunity for actions taken in good
               faith: Harlow v. Fitzegerald: Cabinet members and senior aids/advisors to
               President only have “qualified immunity” that questions whether they acted in
               good faith, relying on an objective test. Need to prove immunity necessary for
               public policy purposes.

LANDOWNERS (*See also Trespass)

A.   Majority View – Tripartite Classification:
                                                                                  Torts Law Outline       24

          1. Invitees: Owe duty of reasonable care to those whom invite on property
               (generally for purpose of benefiting owner). (Includes business guests! Also,
               public visitors on public premises.) (FULL DUTY)
          2. Licensees: Much lesser degree of duty. Owner must make the premises as safe as
               he makes them for himself/warn the licensee of hidden dangerous conditions but
               need not eliminate them (obviously no duty to warn if not aware of latent danger).
               (Persons privileged to enter; Includes social hosts/guests!) (NO DUTY)
          3. Trespassers: Owner owes only a duty to refrain from willful or wanton conduct.
               (NO DUTY)
                   a. Exceptions:
                          i.   In many states owners owe “discovered trespassers” reasonable
                               care; Herrick v. Wixom (child at circus); Dillon (boy trespassing on
                               bridge; when fell off grabbed wire and electrocuted; RR liable).
                         ii.   Owner owe reasonable care to children when have “attractive
                               nuisance” on land that in dangerous condition; Restatement § 339
                               (pp 730-731); Jones v. Billings
                        iii. Recurrent trespassers known to owner
B.   Alternative View (less reliable outcomes): A series of factors should be taken into
     account, including the foreseeability of harm, the closeness of the connection b/w D’s
     conduct and P’s harm, and the moral blame attached to P’s conduct. (Rowland v.

    Privilege can create licensee relationship! Vincent v. Lake Erie Transportation (D
     unloading boat on P’s dock when storm started; left boat on dock and damages resulted): D
     privileged to use property, however, is liable for any damages to it. Privileged because was
     a reasonable action to moor on the dock – i.e. otherwise would be in mortal peril!

C.   Landlords/Tenants: tenants considered landowners. Exceptions: per Sergeant, there are
     exceptions where it is reasonable expected that the landowner has certain obligations; ex:
     stairway collapses. Exception: if rent apartment, items in public area not tenant’s
D.   Defenses for intentional injury to property:
           1. Public necessity: it’s not trespassing if a property was damaged in order to
              eliminate a public risk (ex. stopping a fire). (Justification: p 45)
           2. Private necessity: when one has a personal or private necessity, has privilege of
              trespassing, however, on the condition that he compensates the party later (so
              liability imposed).


A.   Real question: who should bear strict liability – potential injurers or victims? (i.e. when
     don’t have strict liability for injurers, essentially hold victims strictly liable to their selves
     for injuries not caused by another’s negligence).
B.   Even when strict liability imposed, injurers will continue to cause accidents when it’s
     cheaper than avoiding them.
C.   Potential benefits of strict liability:
                                                                               Torts Law Outline      25

           1. Greater accuracy – reduce under-imposition of liability through jury mistakes or
              when type of case in which evidence often destroyed or difficult to obtain
              (although, w/ the cost that sometimes over-imposes).
           2. Administrative cost savings – don’t need to invest resources in determining
              negligence; although, most savings when high generality (i.e. few exceptions to
              S/L) v. low generality (i.e. many exceptions that must be considered).
           3. Activity level – Encourage Ds to avoid entirely dangerous activities if the cost
              outweighs the benefits (as well as be safer) (v. negligence, which just encourages
              Ds to be safer). (Problem of course when there is no alternative activity.)
           4. Create Research Incentives – to find efficient way to avoid injury (even more
              incentive than plain negligence).
           5. More extensive loss distribution.

A. Initially strict liability for “ultrahazardous activity,” determined by degree of danger posed
   and how common it was in the area.

B.   Abnormally dangerous activities another way of saying that there is strict liability if
     engaging the activity is not only a cause in fact but also the proximate cause of the harm.
     This underscores that there is only strict liability for foreseeable harms that s/l
     designed to address.
C.   Per comments, Six Factors from Restatement (Second), § 520 also still taken into
     consideration although heavily criticized since their inception:
           1. Degree of risk (dangerousness)
           2. Probability of harm (dangerousness)
           3. Inability to eliminate the risk by the exercise of reasonable care (dangerousness)*
           4. The extent to which the activity is uncommon (commonness)*
           5. An activity’s inappropriateness to the area (commonness)
           6. The extent to which the value of the activity to the community is outweighed by
               its dangerousness**
               * = most influential
               ** = least influential and sometimes excluded entirely
D.   Determined by court (rather than jury).
E.   DRAFT Restatement (Third), § 20 responds to criticisms: Hinges strict liability on two
     factors – whether an activity poses a foreseeable and highly significant risk of harm and
     whether the activity is a matter of common usage.
           1. § 20(b): An activity is abnormally dangerous if: (1) the activity creates a
               foreseeable and highly significant risk of physical harm even when reasonable
               care is exercised by all actors; and (s) the activity is not a matter of common
F.   Ex: hazardous waste disposal, gasoline storage in residential areas, toxic chemicals and
     gases, blasting and storage of explosives, and escape of water and other liquids.

G.   IN Harbor Belt R.R. Co. v. American Cyanamid Co.: D not held strictly liable. Two
     considerations: leak not likely to have been prevented through the exercise of reasonable
     care and strict liability not likely to have an activity level effect since difficult to route
                                                                                 Torts Law Outline        26

     material another way (negligence achieves these just fine). Also, not a case where
     destruction of evidence a concern – explosion unlikely because of small leak. *Doesn’t
     provide good guidance for future similar cases since a highly specific inquiry (i.e. not high
     generality). (*Focused on #3 above.)
H.   Yommer v. McKenzie: Yommer owned gas station next to McKenzie’s house, resulting in
     gas in well source. Yommer should be held strictly liable – it was inappropriate to carryon
     activity in that area. (*Focused on #5 above.)

I.   Cost internalization: Strict liability is a means of forcing activities/entities to internalize
     all costs they incur.
           1. A problem: How do you know what costs to attribute to the enterprise? (What is
                a cost of what?)
           2. Calabresi approaches this question by assigning costs to those activities that are
                the cheapest cost avoiders. Three types of cost avoidance:
                           a. Primary cost avoidance: Reduce the frequency and severity of
                           b. Secondary cost avoidance: Reduce the impact of accident costs
                              (spreading the loss via insurance).
                           c. Tertiary cost avoidance: Minimize the cost of implementing
                              primary and secondary costs (i.e. minimize system administration
                Unlike fault system, which internalizes costs on an ad hoc, individualized fault
                basis, Calabresi’s scheme is categorical; liability is based on certain categorical
                           d. Like Hand, utilitarian and economically oriented.
           3. Hand: utilitarian and economically oriented; however, ad hoc; not individualized.
           4. Corrective Justice: George Fletcher; reciprocity. A positive and normative
                theory. Attempts to explain and justify existing system in terms of its assigning
                liability according to whether the risks created are reciprocal (roughly
                symmetrical risks are created by all drivers driving normally – reasonably) or
                non-reciprocal (your driving badly creates greater risks to me than my careful
                driving creates for you).

TRESPASS (*See also Landowners)

A.   Interference w/ possession and occupancy of land.
B.   Trespasser strictly liable, even if trespass a mistake (i.e. don’t intend to trespass, but just to
     be present on or interfere w/ the possession of property that turns out to be owned by P).
C.   Trespass is both intentional and strict liability – must be an intent to enter but it doesn’t
     matter whether D has reasonable belief in right to enter or has reasonable cause to do so.
D.   Unlike nuisance, showing of harm not required.
E.   Three types:
           1. Trespass to land -  actionable w/out proof of actual damage, though unusual to
               bring such a case
           2. Trespass to personal property (chattel) -  have to prove injury
                                                                                       Torts Law Outline          27

                       i. See revival of old tort policy for electronic instructions – e.g. eBay case.
               3. Conversion – unauthorized transfer of P’s personal property to third party
F.       Often overlap b/w trespass and nuisance – Martin v. Reynolds Metal Co.: D’s plant
         emitted particles that fell on P’s land, poisoning it. Held D strictly liable because nuisance.
         Court noted that trespass and nuisance can be linked and that P could bring cause of action
         for either one or both (one doesn’t bar the other).

NUISANCE (§§ 822 & 826, Restatement (Second))

§ 822. General Rule. One is subject to liability for a private nuisance if, but only if, his conduct is a legal
cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is
either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules
controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

§ 826. Unreasonableness of Intentional Invasion. An intentional invasion of another’s interest in the
use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor’s
conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for
this and similar harm to others would not make the continuation of the conduct not feasible.

         Restatement conflicted: 822(a) embraces utility v. harm, but 826(b) says nuisance can
          be found where utility outweighs harm if there is substantial injury and can be
          compensated w/out shutting down activity.

A.       A substantial and unreasonable interference w/ use and enjoyment of land. (To be a
         nuisance must be both substantial and unreasonable (i.e. unreasonable if costs outweigh
         benefits)! Determined by circumstances.)
B.       Generally pollution of some sort – contamination of water or air, excessive noise, etc.
C.       Public Nuisance: not a tort, but a low-level quasi-criminal offense affecting the general
         public. General interference w/ public convenience (ex: blocking street; general pollution);
         In some cases private and public can overlap (ex. Spur), but a public nuisance doesn’t
         necessarily involve interference w/ land.
                1. Two instances when public nuisance may be covered by tort law: 1. When also a
                   private nuisance (ex. Yommer, Spur); and 2. When affects a specific subset of the
                   public who can separately bring suit (ex. when blocking a public thoroughfare
                   impacts a specific business).
                2. So, private person can enforce only if harm is special to that individual (e.g.
                   where it is also a private nuisance.
D.       Private Nuisance: a tort, affecting particular individuals.
E.       “Coming to the Nuisance”: a judgment to be made; P could win even if came to nuisance if
         it’s substantial and unreasonable. Ex: just cause factory there first doesn’t mean it should
         always wins out; would essentially create race to develop land first and over time as more
         and more houses put nearby, its nuisance would be too much.
F.       Standards of Liability:
                1. Nuisance can involve intentional conduct, negligence, or strict liability.
                2. Courts conflicted and confused over definition of nuisance, particularly whether
                   reasonableness involves utility-harm balancing.
                3. Restatement (Second) also conflicted.
G.       Remedies:
                                                                                 Torts Law Outline     28

           1. Assign property right to P, and protect w/ a liability rule (damages): D
               ordered to pay P all past and future losses but permitted to continue nuisance
                    a. Boomer v. Atlantic Cement Co: Court declined to enjoin plant because
                       importance to economy grossly disproportionate to harm causing. Granted
                       permanent damages because of the utility of the cement plant.
           2. Assign property right to P, protect w/ property rule (injunction): D ordered to
               pay P all past losses and enjoined from continuing the nuisance (injunction)
           3. Assign property right to D: No nuisance, D “enjoins” P (i.e. there’s a nuisance,
               but not substantial, thus P’s enjoyment still limited by some degree)
           4. Assign property right to D, but protect its right only w/ a liability rule rather
               than a property rule: Nuisance, P compensates D (i.e. there’s a nuisance, but
               court concludes P should have to work to cause discontinuance if it’s worth it to
                    a. Spur Industries v. Del. E. Webb Development Co.: Residential developer
                       came to nuisance, cattle feed-lot/flies/smell. Held that because P came to
                       nuisance should bear cost of relocating the feed-lot, i.e. entitled to
                       purchase an injunction by compensating the D for discontinuing.
 H. Remedies also determined on case-by-case basis by taking into account: parties’ faults,
    hardship in respect to the continuance/discontinuance of the nuisance, and value of the
    activity to the surrounding community.
 I. Applying the Coase Theorem: Depending on who awarded the ‘property right’ (i.e. who
    wins), parties will likely bargain around it to get optimal result (w/ party most favoring the
    property right offering to buy it from the other). (Of course, we’re assuming animosity b/w
    parties doesn’t preclude bargaining and that there are not tons of people affected w/ whom
    the nuisance-creator would have to bargain (i.e. absent transaction costs).)
           1. If a case where bargaining impossible, a monetary award a better solution because
               gives D option of deciding whether or not the nuisance is valuable enough to
               continue despite having to pay.
           2. When award injunction, gives that person “hold-out” right – i.e. other party
               doesn’t know how much will have to pay to buy out other party. However, when
               award monetary remedy, winning party loses “hold-out.”
           3. Two criticisms: theorem doesn’t take into account that where bargain meets a
               stale-mate, court can step in and say we’ll make the choice for you; Coase never
               defined transaction costs/his conception of transaction costs probably under-

Property Right         Boomer's cost - $500                        Boomer's cost - $1000
                       Atlantic's cost - $1000                     Atlantic's cost - $500

Boomer                 Nuisance continues.                         Nuisance stops.
(there's a nuisance)   [Atlantic buys right - up to $1000]

Atlantic               Nuisance continues; Boomer gets zip.        Nuisance stops.
                                                                   [Boomer buys right - up to $1000]
                       (Would get paid under 826(b), but this
                       is a distributional cost issue; not under
                                                                                     Torts Law Outline        29

                        Coase theorem)

                                                  I                                  II

        Property Right Remedy                     Boomer's cost - $500               Boomer's cost - $1000
                                                  Atlantic's cost - $1000            Atlantic's cost - $500

ia      Boomer          Property Rules (i.e.      Nuisance continues.                Nuisance stops
        (nuisance)      injunctive relief)        [Atlantic buys right - up to
                                                  (So same outcome, but
                                                  property right assumes that
                                                  Boomer gets a hold out;
                                                  Coase's assumption is that
                                                  they wouldn't hold out until
                                                  outweighs benefits.)

ib      Boomer          Liability Rule (i.e. an   Nuisance continues .               Nuisance stops
                        ordinary tort rule;       [Atlantic pays actuality cost to
                        court determines          Boomer, $500; so Boomer
                        how much right            loses its hold-out rights since
                        worth, not Boomer)        Atlantic knows what the court
                                                  will award]

iia     Atlantic        Property Rule             Activity continues; Boomer         Nuisance stops
        (no nuisance)                             gets 0                             [Boomer pays up to
                                                  (So now, not only does             $1000]
                                                  Atlantic get property right,
                                                  gets hold out right.)

iib     Atlantic        Liability Rule            Activity continues; Boomer        Nuisance stops
                                                  gets 0 (Atlantic protected up     [Boomer pays $500]
                                                  to the point of its actual costs,
                                                  $1000, so basically can't be      (= Spur)
                                                  any forced bargain to force
                                                  Atlantic to sell when its costs
                                                  are higher than Boomer's)

VICARIOUS LIABILITY (liability for the conduct of another)

A.    Respondeat Superior: employee liable in some circumstances for torts of employees w/in
      the scope of employment. (Don’t forget that vicarious liability in addition to employer’s
      individual liability!)
            1. Justification: employer in better position to make the activity level and research
               decisions that can affect accident levels, and often difficult to prove negligence of
               particular employee, so s/l generates greater accuracy.
B.    Two issues:
                                                                             Torts Law Outline         30

           1. Who is an “employee?” Independent contractors generally not employees. Issue
              primarily one of control at common law (i.e. if don’t control financial/economic
              structure of work=contractor).
                   a. Exceptions:
                           i.   Apparent Agency – Sword v. NKC Hospitals: hospital liable for
                                action of contractor when held contractor out as part of regular
                                staff/patient had no reason to suspect otherwise. So, in some
                                cases, creating appearance of agency may suffice to make a
                                person an employee.
                          ii.   Non-Delegable Duty – Maloney v. Rath: Breaks fail even though
                                P brought car to shop; P liable; idea that in terms of danger and
                                protection there are certain duties that can’t delegate.
                         iii. Selection of Incompetent Contractor – really an issue of whether
                                negligent in picking person.
                         iv.    Retention of Control – employer liable even when have
                                independent contractor if retain control.
           2. When is a tort committed “within the scope of employment?” Employees
              liable for conduct that is a “mere detour,” but not that which is a “frolic.”
                   a. Factors for consideration (Calabresi in Tabor):
                           i.   Is employee’s action fairly typical of the enterprise?
                                (Encompasses idea that if typical, employer will be in a position to
                                obtain insurance against the event, unlike an outlier)
                          ii.   Foreseeability
                         iii. Is employer in position of control?
                        (Elements of control, of motive, of time/space limits, and whether acts
                        authorized or are fairly characterized as risks of the enterprise).
                   b. Taber v. Maine: Government liable for drunk driving of individual on
                        active duty; condoned by government, common place, good effect on
                        employee morale, and government a good loss distributor.
C.   Intentional torts, generally = frolic.


A.   Evolution of Product Liability
          1. Era of Contract Privity: There was no products liability in the absence of privity
             of contract (so, impossible to recover from manufacturer). And, even if there was
             a contract, would only be liability depending on what contracted provided or was
             interpreted to provide. Per “caveat emptor,” courts unlikely to be sympathetic to
             buyer, unless contract specifically provided such rights.
                 a. Winterbottom v. Wright: accident w/ stagecoach. P denied recovery
                     because absence of privity.
                 b. Granted, under this regime, at each step of the distribution chain, parties
                     could have contracted to create some indirect liability; however, would
                     never be able to cover injuries suffered by bystanders and simply is not as
                     good as present approach.
                                                                             Torts Law Outline         31

          2. Era of Negligence: Right to sue manufacturer if able to prove that acted
             negligently (i.e. didn’t take reasonable precautions, proximate cause, and
             foreseeable P); however, a problem for Ps since difficult to prove negligence of
             item when left manufacturer’s possession.
                 a. Thomas v. Winchester: eliminated privity requirement when P’s injury
                    caused by an imminently or inherently dangerous product.
                 b. MacPherson v. Buick Motor Co.: Real impetus for change – Defective
                    car wheel. Held that manufacturer could be held liable if product could
                    foreseeably harm a third party if negligently made.
                       i.    Abolished contract privity in negligence.
          3. Era of Warranty: Overlapping w/ negligence; causes of action based on breach
             of warranty.
                 a. Express warranties: Ability to hold sellers and manufacturers liable;
                    however, difficult to prove that claims of product quality amounted to an
                    express warranty.
                 b. Implied warranties:
                       i.    Liability of the Immediate Seller: First instance of s/l for injuries
                             caused by product defects. Per Uniform Sales Act, provided
                             default rule (i.e. disclaimable) that goods had to be of fair average
                             quality. If they weren’t, the seller was liable for injuries regardless
                             of negligence. (Didn’t cover bystanders.) Seller could in turn
                             indemnify manufacturer through contract privity.
                      ii.    Impure Food, Liability of the Manufacturer: Manufacturers of food
                             liable for injury resulting from consumption of bad food based on
                             breach of implied warranty.
          4. Overtime, arguments for extending strict liability grew:
                 a. Henningsen v. Bloomfield Motors, Inc.: First time implied warranty of
                    merchantability that ran all the way to manufacturer applied to non-food
                    product. (Steering of new Plymouth failed.) Came to be understood that
                    manufacturer’s implied warranty of merchantability could not be
                       i.    Eliminated privity of contract, notice requirement, and ability
                             to disclaim liability for injury in sales warranty cases.
                 b. Escola v. Coca Cola Bottling Co. of Fresno
                 c. A few states still adhere to warranty terminology.

B.   Modern Era of Products Liability:
         1. Restatement (Third), § 402A (first attempt at comprehensive statement of
            tort liability for products): Any seller of a product in a “defective condition”
            strictly liable for personal injury or property damage resulting from that condition.
            Largely the law today.
                a. Generally still retain liability of retailers. Exceptions: some states say
                     liability of retailers only when manufacturer not available; some states say
                     retailers not liable when product in sealed container (i.e did nothing to
                     change product/couldn’t know it was bad).
                b. Bystanders protected by § 402A.
                                                                         Torts Law Outline          32

     c. Strict liability generally does not attach to services.
     d. No strict liability on used goods (although, could be s/l if can prove that
         we’ve got an original defect inhered in the product from the time it was
         manufacturer and that was not affected by use).
     e. Whether successive business takes over liability depends on
     f. Greenman v. Yuba Power Products: P injured when using power tool;
         had read manual. Held that manufacturer should be held liable; not
         necessary to establish an express warranty. Strict liability has been
         extended to products when manufacturer puts on market w/out inspection
         that dangerous.
2. Who can recover against whom?
     a. Generally everyone who is foreseeable victim can recover against:
            i.   Every seller of a product in distributive chain;
           ii.   A few modern courts have exempted retailers from strict liability;
          iii. A number of states have statutes exempting retailers in whole or in
          iv.    Most courts don’t impose strict liability for retailers of used
     b. Providers of services generally not strictly liable unless a discrete product
         is consumed (as in a restaurant);
     c. Lessors of products (e.g., Hertz) treated as sellers;
     d. Successor who acquires assets of a firm generally not liable for that firm’s
         products except where they assume liabilities or the acquisition is a
         fraudulent conveyance or the acquisition is a merger or consolidation or
         successor is mere continuation of predecessor. (Some courts have added
         additional exceptions where there is continuity of enterprise or continuity
         of product line.)

3. Types of Defects
      a. Manufacturing Defects: S/L once P shows product departed from
         intended design and that this departure caused the injury; thus
         manufacturer liable even if exercised reasonable care. [S/L according to
         intended design; issues center on proof of defectiveness.]
            i.  Justification: often difficult to prove negligence of manufacturer;
                manufacturer in superior position to conduct harm-minimizing
                research; and manufacturer in better loss-distribution position.
           ii.  Myrlak v. Port Authority of NY and NJ: Chair collapsed under
                heavy man. S/L for manufacturing defect. Under Restatement (3d)
                essentially use RIL to prove negligence:

           Restatement (3d) § 3, Products Liability:
           It may be inferred that the harm sustained by the P was caused by a product
           defect existing at the time of sale or distribution, w/out proof of a specific defect,
           when the incident that harmed the P:
           (a) was of a kind that ordinarily occurs as a result of a product defect; and
           (b) was not, in the particular case, solely the result of causes other than the
           product defect existing at the time of sale or distribution.
                                                              Torts Law Outline          33

b. Design Defects: Unlike manufacturing defect, occurs throughout an entire
   product line. [Simple consumer expectations test, usually modified in
   complex design cases w/ risk-utility analysis.] Standards for
   determining whether design defective:
      i.  Risk-Benefit/Risk-Utility Test: *Most often used. Very much a
          negligence test w/out the foreseeability requirement. Do the risks
          posed by the design outweigh the benefits? If so, P must also
          prove there was a reasonable (i.e. economical) alternative design.
                Difficulties: asks jury to engage in task for which they
                   don’t have expertise; jury not well-suited for evaluating
                   product overall – was defectiveness of one part of product
                   justified when considering product overall?
     ii.  Consumer Expectations Test: Less favored. If design not as safe
          as consumers expect it to be, it is defective. Difficult to determine
          – a negligence text w/out any of the rigor of the risk-utility
          analysis. *Works best when risks transparent; ex: VW van case –
          it’s clear to consumer that VW vans dangerous.
    iii. In most cases, P must show a reasonable alternative design
          (Restatement (2d)). But, see Potter.
                Potter v. Chicago Penumatic Tool Co.: Vibrating tools
                   cause injury over time. Muddled use of tests; consumer
                   expectations standards essentially trumped risk-utility test.
    iv.   State of Art: Most often a factor that considered by courts; not a
          separate defense. Interpreted to mean two things: that according to
          industry custom, design is state of the art (economical), or that an
          alternative design is not technically possible.
                Potter v. Chicago Pneumatic Tool Co.: State of art not a
                   defense but a factor for consideration. An outlier –
                   generally not true.

    Further clouding the issue is the question of state of the art. Robinson says the
    court articulates this very confusingly. There are two things state of the art has
    been interpreted to mean: 1. That according to industry custom, this design is
    state of the art (economically); 2. This court says we don't mean that - we
    mean technological art - is it possible that there is no alternative
    technologically (i.e. it’s the best there can be)? This is very confusing because
    technology in the abstract is irrelevant - if it's not economically feasible, no
    one's going to make it. Ex. you can make a car absolutely accident proof, but
    then wouldn't perform as a car, would essentially be a lawn ornament! What is
    the point of state of the art if would preclude use of the product??? What you
    should understand as a lawyer is that there is this apparent ambiguity - cases
    uses state of the art in both instances. Most don't use state of the art as an
    independent defense, but say it's a factor that should be considered.

    Most courts would say state of the art is an economic question – thus, no one
    thinks a low-priced car should have all the high-priced car features.
                                                                 Torts Law Outline      34

           Nevertheless, there’s certainly a base line expectation, thus manufacturer
           can’t simply say it would cost more to do x – of course it would. Need to
           decide whether the safety feature one that would be base-line minimum or
           one you would only expect of a Lexus.

       c. Warning Defects: Product seller relieved of liability when provides risk
          information that is both feasible and normatively desirable to transfer to
          purchaser. Once done, purchaser in superior position to choose whether to
          use product/bear the risk of injury.
              i. When is warning required? When injury reasonable/foreseeable.
                      Liriano v. Hobart Corp.: Employee injured by meat
                         grinder; grinder had safety guard; however, employer had
                         removed it. Machine had no warning indicating guard
                         should be on. D liable for failing to provide information.
                         Also – reasons why reasonable people don’t read warnings
                         – p 822!
             ii. To whom must warning be given? Warning generally must
                 reach end user, w/ exception of “learned intermediary test” (i.e.
                 give information to control point; ex: doctor)
                      Exception: Perez: in case of national ads re: Norplant, held
                         duty to warn consumer/consumer making more choice.
           iii. Adequacy of Warnings? Takes into account feasibility, cost of
                 providing a warning, and the kind of information desired and
                      According to Restatement, not sufficient when user may
                         not be reached, may be inattentive, or may not be motivated
                         to read the warning.
                      Example: Uniroyal – inattentive tire guy.
            iv.  When a reasonable/economical alternative design can eliminate
                 a product defect and manufacturer knows accidents
                 happening, warning about the risks does not relieve the D from
                      Uniroyal Goodrich: design defect of tire trumped warning.
             v.  In terms of products that dangerous but for which there is no
                 alternative, the jury is mixed – some say warning is enough;
                 others say shouldn’t be on market even w/ warning.
            vi.  Problem: Diminishing returns to providing too much info (i.e. less
                 likely to read).
           vii.  Problem: P must prove causation, i.e. prove that would not have
                 used product if adequate warning had been given.

4. Defenses:
      a. Contributory negligence in sense of failure to discover defect not a
         defense under traditional view. But, Restatement (3d) says all kinds of
         contributory negligence are considered at least a partial offset under
         comparative negligence.
                                                                            Torts Law Outline        35

                       i.   Ford Motor Co. v. Matthews: P killed because safety switch on
                            truck defective and run over by it. Ford knew of defect and
                            warned retailers to fix it; however, truck never fixed. P’s misuse
                            did not bar recovery – it was foreseeable that someone would
                            forget to take truck out of gear when starting it; this is exactly why
                            had safety function. So, yes, P careless, but D could foresee this
                            and S/L imposed. Retailer’s failure to make change didn’t bar S/L.
                            Ford could foresee this would happen.
                b. Contributory negligence that amounts to a ‘misuse’ is a defense, but in
                   comparative negligence states it will only be a partial offset (depending on
                   the type of comparative negligence regime).
                c. Product Misuse: Manufacturer liable for foreseeable misuses;
                   foreseeability a question for the jury. (Ultimately issue is that
                   manufacturer in best position to shoulder foreseeable misuses.)
                      i.    Examples: Uniroyal; Liriano
                d. Also, normal defenses: contributory/comparative negligence; assumption
                   of risk.
          5. Types of injuries:
                a. Question is the extent to which strict liability in tort displaces commercial
                   warranty law under UCC for damages under personal injury. The
                   principal issue here is the validity of warranty disclaimers that are
                   enforceable under UCC.
                b. Most courts hold that tort liability does not displace commercial warranty
                   liability for pure economic loss arising from product disappointment (loss
                   of bargain damages). (So, have to get person under warranty, not under
                c. Most courts allow tort recovery for damage to property other than the
                   defective product. Some few allow it even for destruction of the defective
                   product (i.e. can’t recover original/lost value of car; only can recover cost
                   of damages to it).

          6. Myrlak: 350 lb man and broken chair. Illustrates difficulty in determining
             whether problem a design or manufacturing defect. Also, like Henningsen, an
             example of relying on res ipsa loquitor-like inferences in the context of strict
             liability – i.e. that problem/injury not likely to result had it not been for
             manufacturing defect.
          7. Ford Motor Co. v. Matthews: Defective safety-switch on truck; Ford had warned
             retailers to fix it, but retailer never did. Ford not relieved of liability – it was
             foreseeable that a retailer would fail to make change, and foreseeable that
             someone would be injured in this way (that’s exactly why had the safety switch in
             the first place!).


A.   Performs at least three functions:
          1. Achieving corrective justice
                                                                              Torts Law Outline        36

         2. Promoting deterrence
         3. Recognizing the significance of the P’s loss and confirming the weight of D’s
             responsibility for it.
B. Function to compensate the P for his losses and no more.
C. Types of damages:
         1. Earnings capacity loss, past and future
         2. Value of medical treatment, past and future
         3. Pain and suffering (including lost enjoyment of life)
         4. Punitive damages for intentional or reckless conduct

PHYSCIAL INJURY (Out-of-pocket expenses (earnings) and paining and suffering)

D. Successful P entitled to recover damages to compensate her for the losses proximately
   resulting from the D’s tort; In addition, P may recover damages for consequential losses,
   such as diminished profits.
E. Personal injury P entitled to: 1. Out-of-pocket losses proximately resulting from the D’s
   tort (e.g. health care expenses and lost earning or lost earning capacity); and 2. General
   damages for pain and suffering (e.g. physical and emotional suffering, disfigurement, loss
   of life’s enjoyments, etc.)
           1. *On earnings, really lost earning capacity, so if not working at the time could
               prove would have in the future; or could prove that but for the accident would
               have been a lawyer, but had to quit law school.
           2. *On earnings, some states prohibit recovery if indicated concretely that not going
               to work; Feldman: Woman died in plane crash; P had said would take 8 years off
               to raise children and only recovered loss of enjoyment for that time, not wages.
           3. *Arguments in favor of and against pain and suffering – pp 219-221.
F. P must prove damages by a preponderance of the evidence.
G. P gets single recovery for past and future losses. (Benefit: concrete end to litigation;
   Disadvantages: less accuracy in estimating future losses and predicting to what extent P will
   be injured; P must be good investor to ensure has awards needed in future.)

H. Discounting awards to present value: Two step process -
         1. Jury determines the medical expenses and pain and suffering the P is likely to
                 a. Two methods: either assume there is no inflation, or speculate about what
                    inflation is likely to look like in future.
         2. Discount the future loss to present value – i.e. to that which if invested will equal
            the amount of the future loss at the time it occurs.
                 a. Discount rate, three approaches: 1. Discount if no inflation was assumed,
                    use “pure” rate of interest (i.e. one that ignores the possibility of inflation)
                    to determine rate; 2. Use an inflated-adjusted interest rate to determine
                    discount rate (nominal rate); or 3. Total offset (no upward adjustments in
                    award for inflation and no discount).
I. Inchoate and Future Loss: Recovery virtually never permitted today for damages resulting
   from even a reasonable fear that one will suffer harm in the future. Exception: occasionally
                                                                              Torts Law Outline       37

   award costs of medical monitoring when D negligently exposed P to risk of future injury
   like cancer.
J. Limitations on Awards:
          1. Remittitur/Additur (not systematic)
          2. Absolute ceilings on pain and suffering (about half of states have done) (more
             predictable, but often under-compensatory in cases of severe injury or young P)
          3. Materially deviates standard. Geressy v. Digital Equipment Corp.: P suffered
             injury from using computer. Award review = whether the award deviates
             materially from what would be reasonable compensation.
                 a. To determine: 1. Identify the normative group (what kinds of cases are
                     sufficiently similar to serve as the referent group for determining what is
                     reasonable?); 2. Determine what constitutes deviation from that group; 3.
                     Define statistically and intuitively how far a verdict can deviate before that
                     deviation becomes material.
                 b. After this three step analysis, the court reviews the more traditional
                     examination of economic damages and the statistical analysis for non-
                     economic damages and decides how much leeway should be allow the fact
                     finders before determining that a jury verdict deviates materially.
K. Collateral Source Rule: Permits P right to recover damages even for benefits that have
   been paid to the P from her own insurance. Eliminated partially or fully by approximately a
   dozen states because of criticisms (pp 223-226)
          1. Subrogation: Insurer w/ right of subrogation requires P to reimburse the benefits
             he received if he later wins a judgment. Helps prevent over-compensation.
             Problem: not systematically done by insurers; confusion regarding future
             payments/ medical costs; problems when, as is common, parties settle out of
             court, which often much smaller award.
          2. Rationale: Where collateral payer is subrogated to the claim, or expects
             reimbursement, the rule simply results in a pass-through of the recovery. Even
             where no subrogation or expectation of reimbursement, the no-offset rule protects
             P’s entitlement to the collateral source and also preserves the deterrence value of
             the liability.
          3. Coyne v. Campbell: Injured doctor receives free care; court doesn’t allow him to
             recover for this care. Wants to distinguish b/w benefits gratuitously received and
             those paid for; concern about over-compensation. Strange result, since causes
             tortfeasor to get a windfall.
L. Doctrine of Avoidable Consequences (Mitigation): Responsibility to mitigate damages.
          1. Lange v. Hoyt: With respect to child’s claim, failure to seek medical care
             irrelevant since mother refused care not child (no imputation of liability). At same
             time, mother actually allowed to recover; held that decision reasonable based on
             her medical beliefs.


A.   Measured by the loss in value of the property or the cost to repair, whichever is less.
B.   Pain and suffering not recoverable in case of property loss!
                                                                             Torts Law Outline       38

C.   Often difficult to measure value. Ex: Bangert: trees ugly and no value. Held that should
     consider intrinsic value, so essentially like loss of enjoyment. Hinton: household items
     have lesser market value, essentially comes down to value to the owner.


A. Courts generally deny recovery for economic loss unless the P is also able to prove
   physical injury or property damage.
B. Exceptions:
         1. Special Relationship/Class of Persons: Recover may be allowed in professional
             situations in which a special relationship exists b/w the tortfeasor and P that may
             entitle the P to recover foreseeable economic loss. (So, a duty of care existed
             because the class of P’s particularly foreseeable as was the type of injury –
             distinguished from the general public.)
                 a. People Express Airlines v. Consolidated Rail Corp.: D (RR) forced
                      evacuation of premises when dangerous chemical spill; as a result, P
                      suffered economic loss. Court held D liable, saying P part of special class
                      of foreseeable victims that should receive compensation.
         2. Professional Services: Comprises accounting and auditing cases, etc., where it
             foreseeable that the P, a third party, would be impacted if the auditor did a bad
                 a. Initially, only permitted parties that were entitled to rely on the audit
                      report, were privy to the contract, or possibly third-party beneficiaries
                      could rely.
                 b. Today, per § 552, liability extends to the limited class of persons for
                      whom the benefit of the information is intended or are known
                 c. No court has said general foreseeability – i.e. any member of public – is
C. Rationale: Similar to the proximate cause cases involving remote Ps, concern about
   unlimited liability or liability out of proportion w/ the degree of wrongfulness; also a matter
   of comparative allocation of who is better risk bearer in some of these cases.

PSYCHIC INJURY (No physical injury, only mental injury)

A. Fright/Shock
         1. Traditionally, no recovery in negligence for pure emotional loss. Over time, there
            has been a relaxation of the standards:
                a. Impact Rule: Permitted recovery only if the D’s conduct resulted in some
                    physical impact on the P’s body. Spade v. Lynn & Boston RR Co. Over
                    time, replaced with:
                b. Zone of Danger Rule: Permits recovery if P in “zone” in which physical
                    injury was threatened and feared for his safety, even if no physical impact.
                    Some courts require that emotional distress have physical symptoms;
                    others have relaxed rule allowing recovery if distress caused by fear of
                    another person’s injury. (Still used in many jurisdictions.)
                                                                            Torts Law Outline       39

                  c. Dillon Rule: P need not be in zone/fear for own safety. Instead, three
                     factors considered: proximity, visibility, and relationship. (More likely to
                     recover the closer the P was to the accident, the more visible it was to P,
                     and the closer the relationship the P had w/ injured party.) (Now used in
                     many jurisdictions.)
                  d. Relational proximity: your best friend and dog probably doesn’t count.
                   Physical manifestation/effects: Most courts require for negligence cases,
                     though a few have eliminated it.

B. Pre-Death Terror & Loss of Enjoyment of Life
        1. Smallwood v. Bradford: P dies in car accident. Allowed to recover pre-death
            terror, but not loss of enjoyment of life since dead!

C. Consortium: Spouses have equal opportunity to recover for loss of consortium; however,
   children rarely permitted to recover. Not all states recognize consortium.
          1. Ferriter v. Daniel O’Connell’s Sons, Inc.: Wife able to recover for loss of
              consortium, however, child not.

D. Wrongful Birth/Wrongful Life: Wrongful birth often awarded to parents, however,
   wrongful life much less often awarded to child. Major issue: determining recovery. In
   wrongful birth cases, you must determine the extraordinary costs created by the birth,
   however, subtract ordinary costs. In wrongful life cases, problem of how to determine
   wrongful life v. no life at all; can’t recover.
        1. Award custodial care/medical costs and emotional injury.
        2. Greco v. United States: As a result of medical malpractice – failure to diagnose
             fetal defect – mother has child w/ severe disability. Mother award wrongful birth
             losses (i.e. extraordinary care costs); however, child unable to recover wrongful
             life; court held impossible to value difference in life v. no life.
        3. Similarly, in other wrongful life cases, P doesn’t recover. Ex: hospital mistakenly
             says P should be resuscitated and P then sues; can’t value negative life.
        4. On other hand, court in Turpin v. Sortini awarded recovery saying issue not value
             of not being born, but medical expenses and extraordinary expenses required
             because of the impairment.


A. Wrongful Death Actions: create a new cause of action on the part of those who survive the
   decedent; typically brought by next of kin for injury to them.
         1. Beneficiaries: typically heirs at law (parents, children, other relatives).
         2. Measure of Damages: Measured in two different ways, depending on statute:
                 a. Loss to dependents: Measured by loss beneficiary suffers as a result of
                     the decedent’s death, including economic and emotional losses (i.e. what
                     economic and emotional support will you now not receive from
                     decedent?) Often hard to show what benefits would have been, say, in
                     loss of minor child.
                 b. Loss to estate: Future earnings of decedent, minus cost of living.
                                                                           Torts Law Outline      40

                 c. Originally limited to pecuniary losses in both instances; today most states
                     provide for recovery of non-pecuniary loss (e.g. companionship,
                     emotional harm) suffered by survivors.
          3. Defenses: D can invoke any defense would have had against the decedent; also
             can invoke comparative/contributive negligence in response to the beneficiary’s
             actions if appropriate – a double whammy!
                 a. Feldman v. Allegheny Airlines: Woman killed in plane crash.

B. Survival Statutes: preserve the deceased’s cause of action in name of his estate; losses
   recoverable by estate and passed through the estate to those entitled to inherit it.
         1. A number of states allow for recovery of economic loss that incurred as a result of
             the decedent’s death; typically a measure of what would have been in estate had
             he lived a full life expectancy. (Jury predicts future earnings and subtracts
             expenditures that would make throughout life.)

C. Wrongful death actions under-compensatory in that don’t provide recovery for that which
   would have been in the decedent’s estate had he died a natural death. Survival statutes
   conversely under-compensatory in that don’t provide recovery for losses suffered by those
   who survive a decedent. Thus, together, best remedy. However, gap still exists – neither
   imposes liability for losses of any other person for whom the decedent would have provided
   support or that which he would have earned and spent on himself in his lifetime.


A. Often requires behavior more blameworthy than even gross negligence.
B. Designed to deter extremely blameworthy behavior of D’s who not deterred by traditional
C. Factors to determine constitutionality of punitive damage awards:
           1. The degree of reprehensibility of the D’s act;
           2. The disparity or proportion b/w the harm or potential harm and the amount of
              damages awarded (if more than single-digit ration b/w punitive and compensatory
              damages, unlikely to meet constitutional muster);
           3. The difference b/w this remedy and the civil or criminal penalties authorized to
              punish D’s in comparable cases.
D. Reasons for awarding punitive damages – Kemezy (Posner). Major reason: most
   appropriate when there is under-enforcement, either because cases not brought because not
   worthwhile (ex. individual Ps may not bring case that would otherwise be brought as class
   action) or because there’s under-discovery of the bad behavior.
E. BMW: An outlier, but suggests there is a limit to punitive damages. D invalidated damage
   award on due process grounds.

INSURANCE (Casebook: p 934)

A. Injury compensation systems, including tort law, has three major components:
         1. The compensable event;
         2. The measure of recovery;
                                                                              Torts Law Outline        41

            3. The payment mechanism.
     The various insurance systems modify some or all of these prongs.
B.   Insurance is a mechanism for solving risk aversion be removing variance in loss (i.e. turning
     a set of probably losses into their expected value – their “certainty value”)
C.   Risk pooling: spreading risks among risk averse persons, preferably persons with generally
     similar risks.
D.   It costs something to run an insurance company, thus have to collect money above and
     above the risk in form of premium.
E.   Underwriting problems:
            1. Calculating risk exposure in the presence of changed conditions affecting future
                    a. Can calculate most risks – i.e. people by demographics; and even
                        catastrophes; however, cannot account for “black swans” – i.e. the very
                        unpredictable Katrinas.
            2. Adverse selection: inability of insurer to sort insureds according to their different
                risks, which induces low-risk insureds to leave the pool.
                    a. Results from asymmetry of information between insured and insurer.
                        Insurance company can avoid it by doing lots of inspecting and ‘certifying
                        the car’ – i.e. in lemon example.
            3. Moral hazard: presence of insurance alters the behavior of insured and makes it
                difficult for insurer to correctly calculate loss exposure.
                    a. Explains why generally can’t get insurance for the life of another person
                        unless can show significant interest; concern that would go out and cause
                        the very event that insuring.
                    b. So, insurance takes the stuffing out of deterrence.
            4. Underwriting v. Investment: The companies do not have and do not expect to
                have in premiums minus expenses enough to cover all payouts. (i.e. payout +
                expenses greater than earned premiums)
F.   Relationship of insurance and tort law:
            1. Insurance adjusts the deterrence to the expected value of the risk. However, once
                the insurance coverage has been obtained there is moral hazard since the
                insurance bill has already been paid.
            2. Insurance affects corrective justice if you think that corrective justice required
                unintermediated reparation (tortfeasor pays full cost).
            3. Insurance assists the compensation function by making sure this is a solvent party.
            4. Does insurance distort the liability system by biasing jurors or courts?

G. Reforms to Insurance Systems:
        1. “Add on”
        2. Modified/Hybrid
        3. Modified prove no fault
        ***See auto insurance notes below, at end


A. Workers Compensation:
                                                                           Torts Law Outline        42

         1. Why was workers compensation created?
                a. Used to be that couldn’t recover unless three conditions, which employees
                     rarely could meet (i.e. 1. Fellow servant rule – couldn’t sue employer,
                     could only sue servant; 2. Contributory negligence often wiped out ability
                     to recover; 3. Assumption of risk – courts said that if workplace very risky
                     you assumed the risk).
         2. Abolishes the tort liability of the employer and provides compensation to
            employees through an exclusive remedy w/in an administrative system for injuries
            arising out of or in the course of employment.
         3. The only defense available is that the employee intended to cause his own injury
            or acted w/ wanton disregard for his own safety.
         4. (So, S/L of a very broad sort. “Fault” has been replaced by “cause” as the basis of
         5. Measure of Recovery: limited because otherwise could be very high because so
            many employees. At first, recovery limited to medical expenses and portion of
            several weeks’ wages. Over time, number of coverable weeks has increased to
            point where no limit in some states and the limit is several years in others. Can
            also receive lump-sum for partial and total permanent disability (i.e. a substitute
            for pain and suffering). (Although, total sum much more limited than normal pain
            and suffering.)
         6. Payment Mechanism: Employer still liable; however, may purchase workers
            compensation insurance. So, employer still incentivized to reduce workplace
            accidents. Can argue that incentive strengthened because employer now liable for
            many more claims than in tort, though for a much lower average amount per
            claim. (In fact, facts show that workers comp has generated substantial safety
         7. Criticisms:
                a. Benefits levels are too low;
                b. Periodic payment encourages some malingering;
                c. With the rise of claims for work-related stress, back injuries, and diseases
                     that may be caused by long-term exposure to hazardous substances,
                     determining whether a worker’s loss is work related have become more
                     complicated and expensive;
                d. Doesn’t displace tort system if there is a third party; so, if employer using
                     defective instrument, could then go and have a product liability claim
                     against the manufacturer (often see this happening).
B. Auto Insurance
         1. As autos became daily fixture, many states came to require auto insurance so that
            injured not left w/out means to recovery.
         2. Hybrid No fault jurisdiction (dozen or so jurisdictions) (MORE BELOW):
            Victim of auto accident recovers for his personal injury or property damage from
            his own insurer, regardless of whether he or the other driver was at fault, at least
            until the security of injuries or amount of damages exceeds a specified threshold.
         3. Traditional Tort Liability States: The injured party seeks recovery from the
            driver or owner of the automobile whose negligence caused the accident, and the
                                                                               Torts Law Outline        43

                liability insurer for the party at fault compensates the victims to the extent of the
                policy limits.
                    a. Provides coverage for third-party liability (indemnifying the policyholder
                         for any amounts she may be legally required to pay someone injured as a
                         result of the policyholder’s liability), including damages for bodily injury
                         or property damage.
                    b. Provides first-party coverage, including damage to the policyholder’s own
                         vehicle, damages resulting from theft, vandalism, bad weather, etc.
           4.    “Uninsured motor insurance:” covers purchaser and family members in the event
                that a negligent D who injures them is uninsured.
           5.   “Medical payments coverage:” affords small amounts of insurance for the medical
                costs resulting from auto accidents, whether there was negligence involved or not.
           6.   Limits: not all drivers comply w/ the requirement; uninsured motorists insurance
                only covers losses caused by the negligence of another driver; and medical
                payments insurance usually has very low limits of coverage. Insurance thus
                supplement rather than replace tort law.
           7.   Different than workers comp in the sense that one person isn’t superior over the
                other – i.e. don’t have employer who’s in better position to insure against risk;
                plus often don’t have clear injurer v. injured; both parties could be hurt.

C. Auto No-Fault, Generally: Unlike workers comp, proposal to change payment mechanism:
   idea to replace tort liability for auto injuries not w/ automatic injurer liability, but w/
   automatic victim liability. Victims would bear their own injury costs by purchasing
   insurance against their losses. Two prongs: abolition of tort liability and the mandatory
   purchase of insurance directly protecting victims. (So, adopting S/L on part of victim.)
D. “Pure” No Fault:
          1. Not enacted in any state;
          2. Would modify all three aspects of tort system:
                  a. Would abolish tort liability for auto-related injuries; no-fault
                      compensation would be awarded to anyone who suffer auto-related
                  b. Would reduce the measure of recovery, particularly by eliminating pain
                      and suffering.
                  c. Victims would be paid by their insurance rather than by potential injurers.
          3. Criticisms:
                  a. Deep disagreement over whether it is sensible and fair to eliminate all
                      damages for pain and suffering.
                  b. People say would cause an increase in the accident rate because drivers no
                      longer would face the threat of liability for negligent driving.
                  c. Corrective justice requires that the injurer be made to compensate the
          4. Counter-arguments/Proponents:
                  a. A driver who is concerned about his own safety will not drive more
                      recklessly since there is no liability.
                  b. As for corrective justice, most acts of negligent driving are momentary
                      lapses of attention. This happens all the time. Whether causes injury or
                                                                           Torts Law Outline        44

                   not really a matter of luck rather than degree of blame that can be ascribed
                   to them.
               c. Victims and insurers both pay the same amount into insurance, thus from
                   where get compensation – i.e. own or other party’s insurance – not
               d. Would generate administrative savings, putting more money in pockets of
                   victims and less in pockets of attorneys and insurance companies.
E. Hybrid/“Real” No-Fault
        1. Adopted in approximately a dozen states.
        2. Abolishes tort liability for only less serious injuries. (So, can get substantial pain
           and suffering in the serious injury cases that people concerned about.)
        3. Whether injury serious determined by threshold:
               a. Verbal threshold: List the various “serious” injuries that qualify for tort
                   regardless of medical expenses.
               b. Monetary threshold: specifies the dollar amount of medical expenses
                   that a claimant must incur in order to preserve cause of action in tort rather
                   than insurance. Size of threshold critically important because most
                   injuries not serious under verbal threshold. Monetary thresholds vary
                   greatly between states.
        4. Under system, policyholders must buy insurance protecting selves against serious
           injuries and first-party insurance covering themselves and their passengers for all
           out-of-pocket costs up to the mandated benefit level.
        5. Application:
               a. If the minimal level of insurance is high (ex. $50,000), then most victims
                   are automatically entitled to recover most of their out-of-pocket losses
                   from their own insurance company and typically do so. Since no-fault
                   statutes normally offset tort recoveries by the amount of prior insurance
                   payments, the major effect of preserving these victims’ cause of action is
                   that they may recover pain and suffering.
               b. If the minimal level of insurance is low (ex. $2,000), many victims do not
                   have enough of their own insurance to cover all of their out-of-pocket
                   losses. The preservation of a cause of action permits full recovery of out-
                   of-pocket losses by them.
F. “Add-on” No Fault
        1. The most prevalent, but least significant.
        2. One prong only. No fault insurance an “add-on” to the tort system. Tort liability
           remains untouched, but there is mandatory purchase of no-fault medical-expense
           and lost-wage insurance.
        3. Victims can still bring tort suits, however, often encouraged not too since in the
           case of lesser injuries, covered by no-fault insurance.

G. Homeowner’s Policy: Like auto insurance, combines first-party coverage (insuring against
   fire or theft) and personal liability coverage. Broadly construed, essentially functioning as
   a comprehensive personal liability policy.

                                                                           Torts Law Outline       45

BATTERY (Actual physical contact)

A. A harmful or offensive contact w/ another, resulting from an intention to cause that contact,
   or from an intention to put another in apprehension that a harmful or offensive contact is
         1. Physical Contact: Contact normally direct physical contact caused by D’s
             actions, however, this includes object set in motion by D (weapon, electricity) or
             any contact not set in motion by D but that results from his intention.
                 a. Garratt v. Dailey: Child 5 year, 9 month-year-old child moved chair,
                     family member injured. It was the P who literally caused the contact by
                     attempting to sit down, however, court held that the harmful contact was
                     intended (or at least expected) by the D.
         2. Harmful/Offensive Contact: Contact need not cause actual physical injury, an
             offensive contact is sufficient. What offensive = context dependent, but idea to
             protect bodily autonomy. Often depends on whether the touching ordinarily
             expected under the circumstances.
                 a. Vosburg v. Putney: Student accidently kicked another student, who in turn
                     suffered great injury because aggravated pre-existing injury. Holding D
                     liable, court distinguished between contact of playground for which there
                     might be implied consent, and that of the classroom.
         3. Intent: D need not have intent to harm; intent to create contact all that’s
             necessary. D must either desire to bring about such contact or act w/ substantial
             certainty (i.e. expect) that the contact will result from his actions.
                 a. Rule: If D acts w/ intent to cause offensive/harmful contact, it doesn’t
                     matter that the probability of harm is low. If D does not intend the
                     contact, there must be near certainty that it will occur.
                 b. Intent standard subjective; jury must infer from circumstantial evidence.
                 c. Vosburg: D didn’t need to intend harm; need only to expect the contact
                     will result from his actions.
         4. Transferred Intent: The individual who suffers the contact need not be the
             person whom the D intended to harm/offend.
                 a. Particularly helpful in cases where P not readily identifiable. Ex: someone
                     dumps hazardous waste in a community.
                 b. If intended to hit inanimate object/animal, but hit person, intent
                     won’t be transferred. Ex: if crazy person thinks that hitting cockroach,
                     but really a person, doesn’t count.
                 c. Insanity not a defense if still had capacity to form intent, which in this
                     case is to commit a battery. Ex: McGuire: woman in hospital said she
                     would go bezerk on nurse and did, so obviously had ability to form intent.
                 d. Manning: pitchers hits hecklers. No defense that intended only to assault
                     – i.e. to scare them – and that didn’t think ball would go through mesh
                     screen. So, transferred intent from assault to battery.
B. In sports case, we see that mere violation of a safety rule not enough; must violate norms of
    game. Gauvin: held that D liable because showed reckless disregard of safety requirement
    when hit someone w/ wrong end of hockey stick.
                                                                             Torts Law Outline        46

C.   Assumption of Risk: Ordinarily not a defense against intentional tort (ex: can’t say nurse
     assumed risk).

ASSAULT (Threat of contact)

A.   Occurs when the D, either intending to cause a battery or threatening one, puts the P in fear
     of an imminent harmful or offensive contact.
B.   Unlike battery, interest in protecting P’s mental peace (rather than physical well-
C.   Apprehension: P must not fear contact; apprehension of imminent contact sufficient.
D.   Two key issues:
           1. How close to consummation of a threat of contact is necessary? The treat must be
              imminent, which means:
                  a. The treat must be immediate in terms of time (i.e. saying I’m going to go
                      get a gun and come back doesn’t count)
                  b. The threat must be close in terms of space (i.e. a threat made over the
                      phone doesn’t count)
                  c. The threat must be actual rather than potential (i.e. saying if I were
                      violent, I would… doesn’t count)
           2. Extra-sensitive Ps: Ordinarily no liability for making threats that normally
              wouldn’t satisfy assault, but do because person extra-sensitive. Exception, of
              course, if D knows of the P’s extra-sensitivity and thus knows the effect his
              actions will have.


A.   Essence restriction of P’s freedom of movement, not harmful/offensive contact.
B.   Pretty concrete rules create predictability:
           1. Total confinement required;
           2. The P must have conscious awareness of the confinement; and
           3. The restraint on P’s freedom must be intentional, but physical force is not
              necessary if there is a threat of force.

C.   McCann w. Wal-Mart Stores, Inc. (P’s son falsely accused of shop-lifting. Wal-Mart
     employees wouldn’t let them leave): Court held that falsely imprisoned. Question was
     what was sufficient to constitute ‘coercion?’ (Didn’t physically restrain.)
D.   Scofield v. Critical Air Medicine, Inc. (Airlift service picks up Ps – children in accident in
     MX – through deceit; Ps thereafter sue for false imprisonment although didn’t find out until
     afterwards that had been falsely confined): Court held that post-consciousness good
     enough; don’t need to be conscious of confinement at time.


A.   Although there is no physical contact, no threat of contact, and no confinement, D acts in a
     manner that intended to interfere severely with the P’s peace of mind.
B.   Requires that P show D’s conduct extreme and outrageous.
                                                                           Torts Law Outline      47

          1. Ex: malicious practical jokes, harassment by debt collectors, and child sexual
               abuse by clergy.
C.   Supreme Court has defined elements of infliction of emotional distress (also known as
     outrage) as:
          1. Extreme and outrageous conduct; and
          2. Intentional or reckless infliction of emotional distress.
      Actual result to the P of severe emotional distress – *Note, however, unlike negligent
      infliction, physical manifestations of distress are not required! Brower v. Ackerley (no.
      2). Why? Likely because, if conduct so outrageous, we just don’t need symptoms. So,
      really relying on outrageousness of conduct!

D.   GTE Southwest, Inc. (D) v. Bruce (P) (D, supervisor, regularly berates employees):
     Determined to be intentional infliction of emotional distress. Although we do provide
     some leeway in employment context, don’t need this much.
          1. Argument for making it harder in employment context to sue for intentional
             infliction: Supervisors need some leeway to impose discipline.
          2. Argument for making it easier in employment context to sue for intentional
             infliction: Employees = captive victim; under thumb of supervisor and need


A.   Consent:
         1. Traditional rule – D cannot escape liability merely by honestly believing that
             there was consent, but must have “reasonably relief” on a manifestation of
             consent by the P.
         2. Another possibility – There is no consent unless express, affirmative consent by
             the P.
                 a. O’Brien v. Cunard Steamship Co.: Woman’s external actions enough to
                    evidence that she consented to receive the vaccine and thus not an
                    intentional tort.
                 b. Hernandez v. Schittek: Doctor’s decision to perform quadrantectomy
                    constituted battery because P did not consent, as indicated by the consent
                    form (only consented if tissue determined to be malignant).

B.   Self-Defense: Defense permitted if reasonable person would believe he was under attack;
     however, excessive force will be judged as will opportunity to flee/escape.

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