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?
ELEMENTS OF ANY CAUSE OF ACTION IN TORT
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).
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
1. Physical injury and/or Pain and suffering/psychic injury
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
Torts Law Outline 2
FUNCTIONS OF TORT LAW
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.
THE FAULT CONCEPT
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
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.
REASONABLE PERSON STANDARD
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.
Torts Law Outline 4
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:
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.
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
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
Torts Law Outline 5
reduce risk by putting him in the institution. Plus fear that D faking
infirmity to avoid liability completely unlikely in this instance.
STANDARDS BASED ON CUSTOM
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
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);
Torts Law Outline 7
4. If disclosure will harm the P.
STANDARDS BASED ON STATUTES
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.
Torts Law Outline 8
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.
JUDGE AND JURY
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
PROOF: INFERENCE AND EVIDENCE
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;
Torts Law Outline 9
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
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.
Torts Law Outline 10
A. P needs to prove that the tortious conduct was a necessary condition to the occurrence of
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.
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)
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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
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
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
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
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
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.)
DEFENSES BASED ON PLAINTIFF’S CONDUCT
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
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.
APPORTIONEMENT OF LIABILITY AMONG DEFENDANTS
JOINT AND SEVERAL LIABILITY
***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-
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
AFFIRMATIVE AND LIMITED DUTY
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:
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
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.
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
i. These relationships not always sufficient to create duty
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
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
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
INTRAFAMILY TORT LIABILITY
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.
LIABILITY OF THE GOVERNMENT AND ITS OFFICERS
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
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.
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
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.
ABNORMALLY DANGEROUS ACTIVITY
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
* = 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.
FRAMEWORKS FOR ASSIGNING COSTS
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.
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
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
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
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
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).
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)
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
a. Express warranties: Ability to hold sellers and manufacturers liable;
however, difficult to prove that claims of product quality amounted to an
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
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.
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
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
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
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
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
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.
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
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)
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
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.
WRONGFUL DEATH AND SURVIVAL ACTIONS
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
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
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”
3. Modified prove no fault
***See auto insurance notes below, at end
ALTERNATIVE COMPENSATION SYSTEMS
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
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
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
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
c. Victims would be paid by their insurance rather than by potential injurers.
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
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
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.
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
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.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
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
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
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
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
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.