a) Duty requires foreseeable unreasonable risk + policy; general duty = standard of due care to all.
b) Due care: that degree of care that a reasonably prudent person would exercise under the circumstance
i) Reasonable Person Standard: objective standard to which defendant is compared; what community would expect ordinary person
to do (Brown v. Kendall: D inadvertently hit P while separating fighting dogs – if reasonable precaution exercised and accident
unintended, actor not liable because inevitable)
1. Exceptions: Individuals or Circumstances not held to reasonable person standard
a. Lower standard:
i. Physical disability
1. How would reasonable and similarly disabled person have behaved?
2. Whose expectations is conduct judged by? (blind ppl? community?)
ii. Youth : hybrid (objective + subjective)
1. Subjective: capacity of particular child in light of age, intelligence, and experience
2. Objective: how would reasonably prudent child of like capacity have acted?
iii. Emergencies (maj: exception; min: not exception b/c circumstances still factored in typical reasonableness test)
b. Higher standard:
i. Superior physical skill or expertise
1. Requires exercise of due care that reasonable person would exercise + exercise superior attributes actor possesses
b. Mental illness (except for sudden onset)
ii) Foreseeability (Adams v. Bullock - kid swinging wire electrocuted by trolley wire)
1. Risk is unreasonable only if foreseeable (high P more foreseeable)
2. No liability where RP could not foresee risk
a. Particularly in light of deterrence goal – cannot prevent unforeseeable accident
iii) Unreasonableness - Breach of Duty
1. BPL: acts are negligent when the burden of preventing the harm is less than probability of significant loss
(B<PL = negligence) (Carroll Towing)
2. Community Expectation: reasonably prudent person conforms to community expectations regarding conduct (alternative to
BPL where factors hard to calculate)
a. May be included within the BPL analysis
3. Foreseeable Danger: if gravity and probability are high, require most effective means of preventing it (focus on efficacy of
burden, not economic soundness)
iv) Policy (relevant considerations informing our decision)
1. Primary policy considerations for negligence: (why use negligence instead of strict liability)
2. Four sources (decide which best promotes policy considerations)
a. Flexible standard
i. Allows to determine desired level of precautions to maximize efficiency
ii. Hard to administer in court, but promotes all other policy considerations quite well
b. Social or community norms or expectations
c. Custom (Trimarco, shower glass)
d. Statutes (Tedla – consistent w/ spirit of statute) (Herzog – violate statute = neg per se)
c) Specific Duty Requirements
i) Main duty considerations:
2. Certainty of injury
3. Closeness of connection between conduct and injury
4. Moral blameworthiness
6. Burden on defendant and community
ii) Physical harm - in general, no duty to act or rescue
a. Affirmative obligations to act: Exceptions to No Duty Rule (Harper, 3rd party guest on boat with whom D had no
relationship no duty)
i. Special relationship: these create automatic duty to act
1. Quid pro quo
i. Common carriers/passengers (Bethel, no longer a higher duty for common carriers)
c. Owners of land open to public/public invitees
2. Non- quid pro quo
i. Farwell, abandoned hurt, drunken friend who later died
d. Custodians/vulnerable and dependent persons
i. Greenbush, school scoliosis exam; usually duty b/c of dependency, but not here due to statute precluding
private cause of action
b. Other exceptions
i. Control of a Dangerous Instrumentality
ii. Innocent Creation of Risk of Peril
iii. Non-negligent Responsibility for Injury
iv. Gratuitous Undertaking to Assist, Aid, or Render Services
v. Abandonment of a Gratuitous Undertaking to Assist, Aid, or Render Services
c. Duty to 3rd party victims (dictated by policy consideration)
i. Randi W.: School writes affirmative recommendation letter for past sex-offender who hurts student in new student
duty to fully disclose if steps taken
ii. Tarasoff: If shrink determines or, based on professional standard, should have so determined that a patient presents
serious danger to a 3rd party he owes a duty to take reasonable care to prevent harm
iii. Strauss: Blackout in NYC, man injured in common area of building (no direct K with ConEd) No duty; strong
policy considerations in restricting liability (orbit of duty).
iv. Reynolds v. Hicks: Alcohol served to minor who gets in accident and hurts 3rd party no duty to 3rd party, only to
original minor (don’t discourage social gatherings)
v. Gibson v. Kasey, if give prescription drugs away, liable for harm to foreseeable 3rd party who takes drugs (strong
policy rationale for preventing parties from giving away prescription drugs; interferes with professional expertise and
substantiated by criminal penalties)
a. Traditional Classifications:
i. Trespassers: no duty, except to refrain from wanton conduct
1. Exception: child trespasser that owner should know more likely to come onto property -- attractive nuisance (i.e. –
ii. Licensees: duty to warn of or remedy known dangers (no duty to inspect)
1. Carter v. Kinney: social guests confer no tangible benefit therefore licensees, so owed no duty to inspect and
remedy danger of ice on driveway
iii. Invitees: duty to warn or remedy all foreseeable unreasonable dangers (duty to inspect)
1. Public vs. Business -- different policy implications
a. Public: expectation of safety
b. Business: confer benefit on owner, so owed safety in return
b. Alternative Approach: eliminate distinction between invitees and licensees; shifts toward flexible standard
i. Heins: Victims falls while exiting hospital after visiting worker; duty owed because due care owed to all; old
distinctions not helpful because low burden, high expectations, and ability to spread cost.
ii. Posecai: Woman is robbed in Walmart parking lot; BPL analysis + policy = no duty; limits of landlord liability due to
high burden and low incident level.
iii) Emotional harm: no cause of action (no duty) solely for negligent infliction of emotional distress
1. Policy reasons why courts traditionally disinclined to find liability for emotional harm:
a. Potential fraud; Difficult to prove causation; Flood litigation; Trivial; Social stigma
2. BUT, recent shift toward finding liability: mental health science developments; changing cultural norms
3. Three Ways to Find Liability for Emotional Harm
a. Physical Impact: where negligence produces a physical impact, however slight, the plaintiff can recover for parasitic
emotional harm (outmoded - cts have moved away from impact rule)
b. Zone of Danger: if plaintiff in zone of physical danger threatened by defendant's conduct, recovery for emotional harm
i. Falzone: Wife near husband when he was struck by car, which came close to her and put her in fear for her life too.
Liability = zone of danger.
ii. Metro North v. Buckley: asbestos case, man exposed, feared cancer; limits ZOD; danger must be imminent, mere
speculative exposure insufficient
1. Policy implications for limiting ZOD: save money for actual victims; threat of unpredictable liability; limited
c. Bystander: four prong test: (1) serious primary injury; (2) marital/intimate family relationship; (3) observation of death at
scene of accident; (4) resulting severe emotional distress
i. Portee: Mom watches kid torn apart by elevator; liability for bystander’s indirect emotional harm resulting from
4. Miscellaneous Exceptions - when no categorical rule exception applies, refer to general standard of due care for particularly
egregious acts leading to emotional harm.
a. Gammon: severed leg sent to mourning son; high vulnerability leads to a high foreseeability of emotional harm, so should
be permitted to recover
b. Johnson: baby abducted from hospital, no recovery by parents because only interested bystander; no cause of action for
negligent custodial care from harm caused by 3rd party so as not to expose all custodial services subject to claims
iv) Special Immunities from Duty = No Duty
a. Parental immunity: parents not responsible for violating due care to children
b. Justifications: parental authority; familial harmony; potential benefit to neg. parent
c. BUT, shift to abolition: disharmony likely w/o compensation; insurance shields depletion of resources; hurt children need
compensation and should not be punished for poor parenting
d. Approaches to Parental Immunity Abolition:
i. Partial abrogation with particular exceptions (i.e, foster care, recklessness, etc.)
ii. Limited abrogation except where conduct in issue involves exercise of parental authority or exercise of discretion
regarding care of the child
iii. Limited abrogation where parent owes duty to the world
iv. Complete abrogation/reasonable parent standard: parents' conduct is judged by whether he acted as a reasonably
prudent parent would under similar circumstances
1. Broadbent: Mom left son who falls in pool and is severely injured, dad sues mom who is defended by insurance
company. No immunity, reasonable prudent parent standard.
2. Government Entities/Sovereign Immunity
a. Public duty doctrine: government entity and its employees are shielded from tort liability for breach of duty owed to public
at large; a duty owed to everyone is a duty owed to no one in particular (Riss)
b. Special duty exception: affirmative undertaking to protect individual + reliance = duty
1. Direct contact between agent and victim
2. Assumption by promises or action of a duty to act on behalf of victim
3. Knowledge on part of agents that inaction will produce harm and an intent that their undertaking will be relied
4. Justifiable reliance by victim
c. Justifications for sovereign immunity: (1) protect taxes; (2) discourage limiting essential government services
d. Justifications against sovereign immunity: (1) communitarianism - burden should be spread; (2) government has insurance
available like any enterprise; (3) limited deterrence
v) Economic Harm: typically no recovery for the negligent infliction of pure economic harm unaccompanied by property damage
or personal injury
1. Particular foreseeability: damages limited to when defendant knows for certain that a particular class of plaintiffs will be harmed
by disruption (i.e., People's Express)
2. Zone of danger rule: only if plaintiff was in zone of physical danger threatened by conduct, can P then recover for pure
economic damage; stricter than People's Express rule
a. Madison Ave: wall collapsed, long disruption to nearby businesses; P's not in ZOD, economic damages not recoverable
(limit orbit of duty)
vi) Wrongful Birth & Life: parents typically have cause of action for wrongful birth; children no cause of action for wrongful life
1. Options for birth of healthy child:
a. Limit recovery for medical expenses related to pregnancy; second sterilization; loss of consortium
b. Recovery for emotional distress relating to pregnancy
c. Cost of raising child w/ offset for economic or emotional benefit
d. Cost of raising child w/o any offset
2. Options for birth of disabled child
a. Special med/edu expenses beyond normal child rearing costs
b. Where physician is aware of potential disability, entire cost of raising child, with offset for social welfare benefits and
parental emotional distress
3. Emerson, failure to sterilization; allowed damages for cost of procedure and lost wages; no emo distress damages for birth of
health unwanted child
2) Judge and Jury
a. Flexible standard: equity (flexibility; reflects community standards; room for change/interpretation
b. Fixed rules: uniformity, efficiency, stability
c. Judge-Made Rules vs. Jury Standards
i. Desire balance: judges tend use fixed rules, juries though are useful in applying general standards to facts of case as a
reasonable person would
ii. Transition of fixed rule to flexible standard (e.g., BPL, which incorporates community norms)
iii. Goodman: Judge-made rule requiring "stop and look" at RR crossing
iv. Pokora: Criticized Goodman precedent because judge-made rules are inflexible (tech developments, varying situations);
juries more adept at considering most situations that do not conform to common-place fact pattern
v. Andrews v. AA: Common carriers have higher standard of due care and jury capable of considering whether airlines have
satisfied this standard by factoring in their common experience with the particular business into the BPL reasonableness test
(luggage nets not prohibitively expensive or inconvenient, high likelihood of accidents)
d. Custom (informs BPL analysis but not determinative)
i. In all cases except malpractice, custom does not define the standard of care. But, customs do inform the
ii. Benefits: reliability in numbers; opportunity for notice; feasibility of certain precautions; useful guideline for what is
iii. Disadvantages: relying on customs might discourage development in industry and industry self-interests may make standard
iv. Trimarco: П fell through glass shower door; other landowners customarily used tempered glass -- therefore custom put on
notice and showed burden not too high. Custom allowed to inform reasonableness of whether 's conduct fell below
industry standard, but not necessarily determinative; pertains to burden & foreseeability.
e. Statute (useful guideline for determining duty and breach)
i. Approaches (balance between fixed rule and flexible standard – way for court to defer to legislature while still providing for
1. Negligence Per Se: violation of statute = presumption of negligence
a. Statutory Purpose Rule: P must be within class and sustain injuries the statute was designed to protect.
b. Statutory construction: court looks to intent of statute to determine whether exception should be allowed
i. Where statute expressly states a new standard of conduct, courts must apply that standard.
ii. But, in absence of rigid standard, common-law exceptions may still apply or courts may construe
statute as not applicable to particular circumstances
2. Negligence Per Se with Limited Exceptions (Categorical Approach)
b. Compliance involves greater risk
d. Unawareness of occasion for compliance
e. Inability to comply after reasonable care
3. Evidence of negligence
a. No negligence per se, statute and violation merely used as factor in reasonableness determination
ii. Martin v. Herzog: P, in buggy, dies in accident with D, in car -- both drivers violated statute - P's buggy had no lights, D on
wrong side of road. Ct holds: violation of statute constitutes negligence per se (prima facie) because "wholly unexcused"
(statute provided express standard not to be ignored by jury; therefore, decide as a matter of law)
iii. Tedla: Two junk collectors hit by car while walking with traffic, despite statute prohibiting that, but did so to avoid heavy
traffic because safer on wrong side of road.
1. Statutory Construction: Exception is within the statute itself in accordance with legislative intent; therefore, no
violation of statute itself. Way for court to escape negligence per se.
2. Where “good cause” demonstrated for breach, no liability found for actor
a. Elements of Proof of Breach under the Flexible Standard
i. What did
ii. How dangerous it was (unreasonableness).
iii. knew or reasonably should have known about the danger (foreseeability).
iv. Safer alternatives available (unreasonableness).
v. That knew or reasonably should have known about the safer alternatives (notice).
b. Actual Notice (Defendant truly knew about danger)
c. Constructive Notice (defendant should have known about danger – circumstantial evidence)
i. Negri: P slips on supermarket spill; D-employee, should have known about danger and had opportunity to remedy because
mess within premises of store for one hour = prima facie case.
ii. Gordon: P slips on pretzel-wax paper outside on museum steps. No constructive notice because transient danger, unknown
how long, outside premises of museum
iii. Reconcile Holdings:
1. Fact Difference: requisite time
2. Public vs. Private Space: less reasonable to hold museum than store
d. To Shift Burden to Defendant:
i. Res Ipsa Loquitur ("the thing speaks for itself"; shifts burden -- assumed negligence unless defendant can disprove)
1. Elements (negligence must be more likely than not)
a. The accident is of the kind that ordinarily does not occur in the absence of negligence.
b. The causal agency or instrumentality was in the exclusive control of the defendant or within the scope of
the defendant’s duty. (Ybarra)
c. The accident was not due to the voluntary action or contribution of the plaintiff.
2. Procedural Effect of RIP (depends on jurisdiction)
a. Allows π to survive a motion for nonsuit (inference most used)
b. Shifts burden of production to Δ (if D produces, P must persuade)
c. Shifts both the burden of production and the burden of persuasion to the Δ
3. Bryne v. Boadle: P hit on head by flour barrel that fell from D's 2nd story window. No evidence of what caused
the barrel to fall, but P allowed to recover under RIP (particularly in light of evidentiary difficulties).
a. Barrel typically does not fall in absence of negligence
b. Barrel was instrumentality in exclusive control of D
c. P didn't do anything to cause accident
4. McDougald: D's spare tire not secured properly and escaped tractor trailer, injuring P. RIP: tire would not have
come loose unless there was failure of reasonable care by D to properly secure tire. Only have to demonstrate that
negligence was more likely than not to have caused accident = would not have occurred without negligence (no
need to negate all other possibility); can still claim specific acts other than RIP.
5. Ybarra: P unconscious for appendix surgery, wakes up with severe injury to arm; many doctors, but none will
admit to causing injury.
a. All doctors had responsibility to protect patient (instrumentality over which due care must be exercised) =
right of control
b. Protecting patient was within scope of duty; do not need exclusive control.
c. Since injury unrelated to surgery occurred, negligence more likely than not.
d. Evidence unavailable to plaintiff
e. Medical Malpractice
i. Medical profession uses their professional custom as standard for due care
1. Expert testimony essentially required to establish professional custom in each case
2. Some courts use reasonably prudent doctor standard, which is more flexible in allowing balancing of other
consideration beyond industry standard
ii. ASK: Did defendant act in conformity with common practice within profession?
1. Professional custom standard: medicine is a higher calling (hippo oath – we can trust them); highly technical;
pateients have too high of expectations; professional autonomy
2. Flexible: conspiracy of silence, modern medicine may be more focused on cost cutting than patient health
iii. Expert Qualifications: any doctor with knowledge of or familiarity with procedure, based on experience, observation, etc. is
competent to testify
1. Sheeley: Poorly performed episiotomy results in complications. What standard of care should govern? Professional
custom sets standard. Requirements for experts: current knowledge of relevant procedure, including state of art
(over qualification, different locality - no problem)
iv. Experts in Medical Malpractice in RIP cases (whether accident is one that occurs without negligence) – bridge gap between
common knowledge and technical field
1. States v. Lourdes Hospital: Expert testimony allowed to educate the jury by enlarging its understanding, but jury
ultimately makes own decision.
a. Applying RIP permits juries greater discretion in judging doctors actions unreasonable, thus shifting us
closer to a reasonably prudent doctor standard
2. Expert not necessary where accident so clearly a result of negligence as to be within scope of common knowledge
v. Informed Consent:
1. Two tests:
a. Professional Custom Rule: What would a reasonable medical practitioner under similar circumstances
have told patient.
b. Prudent Patient or Materiality of Risk Standard: What would a reasonable patient have wanted to know.
2. Matthies: 81-yr old patient with broken hip, D surgeon prescribed her bed rest instead of surgery without
informing her of alternatives possible.
a. Standard obligates physician to disclose only information material to a reasonable patient's informed
i. Test for materiality: whether a reasonable patient in patient's position would have considered risk
material. Material information is not only that which physician would recommend, but also
includes medically reasonable alternatives, including both non/invasive procedures
b. Causation: objective standard more appropriate than subjective standard because of patient's bias in
hindsight due to injuries already sustained
i. ASK: Whether different outcome would result based on prudent patient not actual patient had
info been provided
a) Cause in Fact (bridge between breach and damages; overall liability requires breach of a duty that causes harm)
i) But-for cause
(1) If the event would not have occurred but-for defendant's conduct
a. To determine "but-for"
(i) Four step test:
1. Identify injury
2. Identify D's wrongful conduct
3. Identify P's wrongful conduct, if any
4. Determine if injury would still have occurred without D's conduct
(2) Reasonable certainty, not absolute certainty, that the negligence was the but-for cause (exclusivity not required)
a. Stubbs: P alleges sick from dirty tap water, as are neighbors; D defends: many causes possible, must prove exclusive cause,
but court holds: reasonable certainty is enough to show cause
(3) Negligence that increases chance of harm can be but-for cause permits presumption subject to jury determination
a. Zuchowicz: D administers overdose of drug, then dosage correct, but patient later dies from rare heart condition.
(i) When negative side effect demonstrate to be result of drug and drug was wrongly prescribed (causal connection) P
satisfies cause-in-fact element
(ii) Cause in fact both normative and factual (court allows experts)
1. Normative: what would happen
2. Factual: likelihood that conduct caused harm
(4) Loss of chance
a. P's high chance of good outcome; D's negligence lowers that chance; bad outcome occurs; but-for cause inferred
(i) Deprivation of more promising outcome or opportunity to beat the odds
(ii) Alberts v. Schultz: P with gangrene believed he had good chance of saving leg, but lost it due to doctors’ failure to test,
leading to amputation. But, P failed to prove to a reasonable degree that negligence caused loss because not clear that
had negligence not occurred that he would not have to lose his leg.
ii) Substantial Factor:
(1) Either cause alone would have produced the identical result
(2) Either cause alone would have produced a similar result
(3) The defendant made a clearly proven but quite insignificant contribution to the result
iii) Departure from Strict Causation Approaches: Multiple 's commit wrongful act; unclear whose conduct caused harm, but clear
that together caused the harm.
a. All members organized in trade association held responsible for the tortious acts of any member (i.e., blasting caps)
a. Where both 's breached duty, but unknown which caused harm, hold both liable
b. Only works for small number of 's; all 's must be joined
c. Summers v. Tice: Two s hunting; П hit by shotgun pellet, but both 's fired in same direction so unclear which is
responsible. Court holds both 's alternatively liable despite П inability to prove strict causation – burden shifts to ’s.
(3) Concerted Action (i.e. - conspiracy): Responsible attaches to all ’s if either:
a. Express or implicit agreement, more than parallel activity.
b. Indirect contribution, not necessarily directly causing harm
(4) Market Share:
a. Several manufacturers make indistinguishable products, one of which hurts P - hold all liable, and allocate liability
proportionally by market share.
(i) Characteristics (potentially problematic)
1. National market (despite narrower market being more appropriate)
2. No ability to exonerate (even if D can show not manufacturer of the specific pill, still has to pay)
3. Several liability only
(ii) Hymowitz v. Eli Lily: Hormone taken by many women nationwide, which turns out to cause birth defects; P sues one
of many manufacturers.
1. Manufacturer defense: P did not prove who manufactured her specific pill; no but-for cause present.
2. Court holds: all manufacturers proportionally liable for market share, which limits the defendant's liability to their
extent of participation in the market
3. Several liability only so victim absorbs cost of absent defendants
b) Proximate Cause
i) General: if harm is type or kind contemplated by negligence, then proximate cause provided substantiated by policy considerations
a. Simple limitation (only П): negligent defendant is liable for all foreseeable kinds of harm of which her/his conduct is a
cause in fact.
(i) Wagon Mound: spilled oil in water, which got under П's dock; П knew oil was there, was concerned about safety but
kept welding; fire started causing large damages to wharf. Court finds no liability because fire was not foreseeable.
1. Note: Gross oily dock, pollution, minor economic harm are all foreseeable, but oil burning was not foreseeable
because too attenuated from negligent act no proximate cause
b. Risk Rule (BPL): will only be liable for those foreseeable unreasonable risks by reason of which is said to be negligent
iii) Special Rules:
(1) Thin- Skull / Egg Shell Plaintiff
a. take П as they come – foreseeability not a limitation
b. Benn: П had weak heart and died of heart attack several days after car accident. argues that heart attack was not a
foreseeable result of accident. Court holds: injury and not dormant conditions is proximate cause of harm. Accident was
cause of harm, even if plaintiff was extra-fragile. Foreseeability of harm doesn't matter here.
c. Steinhauser, girl with mental condition aggravated by car accident. Note: Award may depend on degree to which accident
(i) Four possible levels of liability
1. Totally normal – accident was the but for cause of all the harm (total)
2. Already schizo – accident aggravated a preexisting illness (worsening)
3. Latent schizo– accident precipitated an illness which might never have manifested itself (discounted value based
4. Latent schizo – accident caused an earlier onset of an illness which would have eventually materialized (early
(2) Medical Malpractice Complications or Aggravations
a. Aggravation Rule: if victim subjected to negligent medical treatment as a result of 's conduct, is liable for negligent
medical treatment – no issue of proximate cause.
a. Courts increasingly willing to hold responsible for injuries that prompt suicide responsible for suicide itself --
"irresistible impulse" doesn't necessarily mean "sudden impulse.”
a. When you put persons/thing in jeopardy, you should expect rescuers, thus you are liable for harm to rescuer (must be
related to harm, i.e. flood = slip and fall).
iv) Intervening and Superseding Causes
(1) Intervening Cause: a force that effects case in between negligent acts and damage ( liable)
(2) Superseding Intervening Cause: a force that effects case in between negligent acts and damage to such an extent that it breaks
the causal link ( not liable)
a. Doe: Woman raped behind bushes. argues that rapist was superseding intervening cause.
(i) Holding: Yes, superseding intervening cause; rape was not foreseeable.
(ii) D liable if conduct increases chances of harm and is substantial factor regardless of intervention of another, excpt
where third party intentionally caused harm.
(iii) Policy justifications: can't require landowners to predict criminal behavior.
(1) Facts: man trying to board train while doors closing, guards helped push him in causing package he's carrying to fall on tracks,
thereby causing fireworks to explode. Shockwave knocks over scale at other end of platform, which falls on П.
(2) Cardozo (maj): duty is relational and depends on foreseeability, as determined by judge.
a. Unforeseeable П: For duty to exist, there must be foreseeable harm to the actual П. The orbit of duty corresponds to the
orbit of danger. No duty.
(3) Andrews (dis): duty is not relational, but owed to the entire world. The harm to her was a foreseeable result of the ’s act.
Proximate is determined by (1) connection; (2) intervening causes; (3) remoteness; (4) prudent foresight
a. П's Fault
i. Contributory Negligence (if П was negligent at all, is not liable)
1. Exceptions to contributory negligence as where
a. was guilty of intentional, wanton, and reckless misconduct (e.g., П was driving w/ lights off, but was
drunk and high on crack.)
b. had the last clear chance to avoid injury (e.g., П-pedestrian in road, fails to stop and hits him)
c. had a duty to protect the plaintiff from her/his own risky behavior.
ii. Comparative Negligence (if П's negligence partially caused injury, is proportionally liable)
1. Two types
a. Pure: plaintiff can recover any proportion due to D's negligence, even if small. (e.g., P is 90%, D only
10%; P can recover 10%)
b. Impure: plaintiff only recovers if they are less liable than D (e.g., P is 60% responsible, D is 40%
responsible; P cannot recover)
i. Modified 50: recover if P negligence less than D
ii. Modified 51: recover if P negligence less than or equal to D
a. More equitable and socially desirable; all-or-nothing rule too harsh; response to jury nullification
iii. Mitigation of damages
1. Post-accident conduct (i.e. – large lady recommended exercise)
2. Courts typically refuse to award damages for complication that could have been avoided through exercise of due
3. But, court reluctant to evaluate surgery or treatment decisions (even refusals)
iv. Avoidable Consequences
1. Pre-accident conduct that causes some of the injuries or damages
a. 3 ways of looking at seatbelt example:
i. No duty to wear seatbelt; additional harm from failure to use is not recoverable
ii. not responsible for any harm caused by failure to use device and remaining damages
apportioned by fault
iii. Non-use is factored into the percentage of fault attributed to П
iv. Distinguish damage attributable to non-use from general damage. Jury assigns proportional
percentage to each.
b. Assumption of Risk (relates to duty owed)
i. Express: contract where potential P agrees to a certain risk of activity
1. Restatement test:
a. Freely and fairly made
b. Equal bargaining position
c. Brought to attention of party at time of formation
d. Doesn't interfere with any social interest
2. Dalury Ski Ltd., P injured while skiing, had signed "hold-harmless" agreement. Courts will sometimes uphold
these agreements, but not always.
a. Holding based on policy analysis:
i. Ski resort best position to minimize accidents
ii. Absorb and spread cost of accident
iii. Doesn't matter that it's a private facility -- public accessibility due to mass use and invitation.
1. Primary: no duty because activity inherently dangerous, danger obvious, and risk cannot reasonably reduced
a. Primary assumption of risk relates to duty and assumption of duty
b. Murphy (Flopper): Risk of falling was the whole point of ride and victim was aware of such risk;
therefore implied assumption of that risk "the timorous may stay at home.”
c. Knight v. Jewett: Pee-wee football game during which girl repeatedly acknowledged how rough boys
were playing. Primary assumption because we want to allow social groups to regulate conduct in sports.
d. Baseball Hypo : Woman hit in head by baseball at pro game, first time fan; implied primary assumption
of risk, despite fact that she didn't know about danger (don’t chill participation in past-time)
2. Secondary: when П knowingly encounters a risk created by 's negligence
a. Four requirements for implied secondary assumption of risk:
i. П must have knowledge of facts constituting danger
ii. П must know conditions are dangerous
iii. П must appreciate nature and extent of danger
iv. П must voluntarily expose himself to danger
b. Davenport: P lived in apt, had access to 3 staircases, but the one closest to him had no lights. He
complained about it but still used it. Tripped and fell.
i. Holding: P can recover unless degree of risk created by P's choice to persist in activity is greater
than risk created by D's negligence – not a complete bar to recovery, just one factor.
3. Firefighter Rule: firefighters/police officers cannot sue landowners for injuries due to landowner's negligence
a. Three reasons:
i. Landlord expectations - cannot control or expect times and places of official rescuer's presence
on their land
ii. Particular public servants have knowingly assumed risk and it is an inherently risky activity
iii. Double taxation/liability (workers comp is paid for in taxes)
b. Levandoski v. Cone: police officer hurt while chasing subject on property that didn't belong to P. Third
party non-landowners cannot qualify for protection through firefighter rule.
Strict Liability (strict liability or liability w/o fault: generally requires causation and a social purpose to compensate or deter)
a) Abnormally Dangerous Activities: ultra-hazardous activities that create great risk of harm that cannot be addressed by due care are
subject to strict liability
i) Restatement(2d) § 520: Six factors leading to strict liability for abnormally dangerous conduct
1. High degree of risk of harm
2. Great gravity of harm likely
3. Danger not eliminated by the exercise of due care
4. Not a matter of common usage
5. Not appropriate for the place
6. Not valuable to the community
ii) Restatement 3d § 20
1. An activity is abnormally dangerous activity if:
a. It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors;
b. It is not one of common usage
iii) Specific Policies:
1. Loss spreading via D’s enterprise to its customers
2. Loss avoidance or risk reduction or general deterrence (including incentives to relocate or change or reduce the level of activity)
3. Loss allocation or cost internalization (deterrence via sensitivity to pricing)
4. Administrative efficiency (via comprehensible rules, verifiable facts, and common law adjudication)
5. Morality (ethical behavior and interpersonal norms and neighborliness)
6. Fairness (benefits carry responsibility for burdens exerpeicned by others)
iv) Rylans v. Fletcher, two adjacent coal mines, reservoir floods, shafts were unknown.
1. Lower Ct Holding: strictly liable for abnormally dangerous activities (risk must be inherent in particular activity)
2. House of Lords Holding: strict liability for non-natural uses of land
v) Indiana Harbor Belt, D produced and loaded chemicals onto train. While at the rail yard, chemical spilled causing environmental
damage. Plaintiff seeks to reclaim money spent to clean up. Ct holding: Posner applies R2d 520(c). Shipper and manufacturer
should not be held strictly liable b/c harm could have been avoided through use of due care. Rather people living near the RR bear
the risk of damage occurring from railway accidents
a. Harm not inherent in defendant’s activities (not caused by nature chemical)
b. Incentives to reroute not applicable due to nature of the rail system (hub and spoke)
2. Counter arguments
a. Best positions to avoid risk – los avoidance
b. Better able to spread costs (i.e., to customers)
c. Not appropriate to the place
b) Vicarious Liability: employers are held strictly liable for the negligent acts of their employees
i) Policy justifications: employers are best placed to minimize negligent acts of their employees (i.e., training programs), also better
for compensation (deep pockets), loss spreading (raise prices of products)
ii) Test for scope of employment to hold employer liable: if outside, employer not liable
1. Conduct was of general kind employee was hired to perform
2. Conduct was within the time and spatial boundaries of employment
3. Conduct was motivated at least in part by serving employer's interests
iii) Christensen v. Swenson: D went to get soup outside boundaries of plant, gets into car accident with P. Ct finds that reasonable minds
could differ as to whether acting within scope of employment, reversed SJ and remanded.
iv) Employers generally not liable for independent contractors
1. Three exceptions
a. Apparent agency: employer is always liable for acts of their employees, so similarly liable for acts of their independent
contractors w/ apparent agency (focus is on conduct by principal in creating appearance).
(i) Requirements for apparent agency:
1. Representation of agency by employer
2. A reliance on the apparent agency by a 3d party
3. Change in position by 3d party in reliance on representation
(ii) Roessler v. Novak (majority): Patient in hospital recommended bad radiologist (independent contractor) whose work
causes harm. Hospital provided doctor in ordinary fashion w/o informing patient that he was an IC, constituted rep. of
agency. Patient relied on rep. to his detriment apparent agency hospital liable
b. Non-Delegable Duty: if employee conducts core duty not to be delegated to third party and essential to functioning of
enterprise, employer strictly liable for negligence.
(i) Roessler (concurrence): Since radiology is a non-delegable duty of hospital, doesn't matter whether IC status, hospital
1. Justifications for non-del duty: Efficient and predictable (less litigation), takes into account of patient's choice - no
ability to bargain
c. Inherently Dangerous Activity: When the employer hires an independent contractor to undertake an inherently dangerous
activity, it is liable for employee’s negligence in conducting the activity.
c) Products Liability: manufacturer held strictly liable for injuries caused by their products; negligence not required.
i) Policy rationale
1. Compensation through loss spreading (spread through insurance and price)
2. Deterrence through increased safety incentives (employer in best position to reduce risk)
3. Deterrence through cost internalization and pricing mechanism (demand destruction)
4. Administrative efficiency and fairness (hard to prove negligence especially for complex prods)
ii) Manufacturing Defects
1. Departure from intended design that makes product riskier; relatively easy to prove based on comparison with intended product
(deviation from manufacturer’s specification)
2. Escola v. Coca-Cola: Waitress injured by exploding soda bottle. Traynor's concurrence advocated for adoption of strict liability
for defective products because res ipsa basically held them strictly liable anyway – less circuitous litigation due to lack of privity.
iii) Design defects
1. Design is inherently more risky than it should be; entire line recalled; harder to prove
2. Three tests for Design Defect
a. 2d Restatement 402a
(i) Consumer Expectation Test: product is riskier than the public would reasonably expect. Closer to strict liability
because liability even where benefits outweigh risk; easier for P's to prove because no B, just PL.
(ii) Risk-Utility: (BPL) whether safer alternative at a reasonable cost to manufacturer – Impose more harm than cost of
1. Difference from negligence (which depends on foresight): shifts burden to D, consumer expectations are factored
in to analysis, hindsight -- the D may be held liable for risks that were not known at or knowable at the time the
product was sent into stream of commerce
b. 3d Restatement
(i) Reasonable Alternative Design (RAD): P has burden to prove existence of reasonable alternative design that would
have reduced or avoided a foreseeable risk and the absence of which makes the product not reasonably safe.
3. Barker: CA adopts both defects test. P can establish a defective product by showing that it (1) did not perform as safely as an
ordinary consumer would expect it to. OR, alternatively, (2) that risk outweighs utility, thereby shifting burden on D to prove
benfit greater than risk. That is to say, in HINDSIGHT its design did not embody excessive preventable harm or the dangers
inherent in the product did not outweigh its benefits.
4. Soule v. GM: Auto accident, wheel bends and crushes toepan, breaking ankles. P sues GM based on "consumer expectations"
a. D: consumer expectations incorrect test for such a technical case.
b. Holding: Consumer expectations test limited to simple products and cannot use experts to prove case; complex products
should use risk-utility balancing which requires use of experts.
c. Nature of the product determines the appropriate test.
d. ASK: Do facts permit inference that product did not meet minimum safety expectations?
(i) Yes = consumer expectations
(ii) No = risk/utility balancing
5. Camacho: P injured while riding motorcycle, alleges injury worsened due to lack of crash bars. Trial ct: ruled for D, using
consumer expectation test (bought bike w/o crash bars, now responsible for added injury himself because open and obvious
a. Holding: risk-utility balancing test appropriate (for fundamentally dangerous products: manufacturer should design safety
features to minimize resulting injuries, when reasonable and cost effective). Concern here that consumer expectation test
lets manufacturers off hook when product fundamentally dangerous; no requirement to reduce danger whenever possible
b. Crashworthiness: degree of inherent dangerousness could or should have been significantly reduced?
iv) Defective Warnings and Instructions
1. Manufacturer must make adequate warnings for foreseeable risks; product defective if consumers not informed of dangers of use
or measure to avoid risk. (factors include scope of danger indicated, extent of harm resulting, physical aspects of warning, etc.)
2. Even if utility outweighs its risk, product may still be defective if risk could be reduced to reasonable level with low costs – stop
gap to risk-utility analysis for design defects
3. Hood: P took off blade guards on saw (believed just there to guard fingers), blade flew off and cut him. Warnings in manual and
on saw: keep guards in place, but did not explain reasons -- turned out guard kept blade on. Court holding: no obligation to warn
as to exact nature of risk; warnings were adequate (judge warnings based on ordinary consumer) possibility that to increase
number of risk would dilute effectiveness
4. Learned Intermediary Doctrine: if prescription, warning to doctor adequate whereas for other warnings, manufacturer must
warn ultimate consumer adequately to avoid liability.
a. Exceptions: (1) mass immunization, (2) FDA mandate
(i) Edwards: Man wearing 2 nicotine patches smokes cigarettes and dies of nicotine OD. Thorough warning to doctor
warned of OD; briefer warning to patient did not. General rule = LID, but here, FDA mandates warning directly to
consumer. Ct holding: FDA mandate creates exception to LID, must warn patient. (FDA warning standard is floor,
state law may require more)
5. Hindsight vs. Foresight
a. Hindsight approach: if at time of trial risks are known, manufacturer presumed to have known and therefore strictly liable
(appropriate for asbestos cases, but if goal is deterrence may be too strict a standard)
b. Foresight approach: held liable only if a defect is actual or constructive knowledge at time of manufacture or sale
c. Vassallo: P injured by breast implants; company did not warn but did not know of effects at time of sale. Ct holding: adopts
foresight approach essentially no difference than negligence standard.
1. Comparative Responsibility Doctrine: Consumer has duty to use due care in all conduct with respect to product except in
discovering or guarding against a defect.
a. GM v. Sanchez: Pickup truck gear malfunction, car traps and kills driver. Ct holding: 50/50 responsibility; prod was
defective, but Sanchez failed to use due care.
b. No duty to guard against or discover defects (would void strict liability claim), but award reduced by half under
comparative responsibility doctrine because due care not used in other respects as to the product’s use.
2. Substantial Modification Defense
a. If product substantially altered after leaving manufacturer’s control, it may not be liable.
b. BUT: Manufacturer may still be liable for failure to warn when injury occurs after foreseeable modification of product (i.e.
– product purposefully made to use without safety feature).
c. BUT: if product purposefully manufactured for use without safety device then manufacturer may be liable (i.e. – product
cannot run efficiently without removal).
(i) Jones: Employer took guards off industrial equip to maximize productivity, which was prevalent throughout industry.
Ct holding: manufacturer not responsible once guards removed. Dissent: manufacturer still liable because machine
doesn't run at max efficiency w/ guards - encourages consumer to take guards off (dissent ruling is now controlling
(ii) Liriano v. Hobart: Employee loses hand in meat grinder; guard had been removed by employer, but no warning posted.
Court holding: manufacturer may be liable for failing to warn against dangerous, foreseeable modifications. Note
limitations: ct may reject liability if increased danger is open/obvious to reasonably prudent person or if injured person
participated or knew of modification
d) Car accidents: no strict liability
i) Hammontree v. Jenner: driver struck with, had past history of seizures but took reasonable, foreseeable steps to ensure driving
credentials (DMV, medication, etc.). Ct holding: No strict liability in car accidents, only standard of negligence; would create
uncertainty and bad policy.
1. Unlike prod liability bc prod manfctrs benefit from sale of defective prods, can anticipate injury, and can fix defect. This doesn’t
work for ins companies; they can’t fix Mr. Jenner.
a) Compensatory: general goal w/ unintentional torts = restore plaintiff to zero
i) How to calculate: determine each element of damages, calculate lump sum (both present and future), then discount for present value.
ii) Lump Sum Payment Rule: single recovery for tortuous behavior which includes all past and future damages
(1) Justifications: cuts down admin costs; discourages prolonging disability
(2) Remember to discount present value (worth more to you now than later)
iii) Special Damages (Pecuniary): out-of-pocket losses (i.e., medical bills)
iv) General Damages (Non-Pecuniary): intangible losses (i.e., pain and suffering)
v) Personal injury
(1) Seffert v. LA Transit Lines, P perm injured on city bus, gets damages for past and future med expenses by using expert to
predict future expenses.
(2) Medical expenses
1. Past and future medical expenses (lump sum payment rule)
(i) Past: cost of care already received
(ii) Future: use expert to project expenses
2. Note that wealthy plaintiffs may receive higher payments: higher standards for med care
(3) Lost earnings (heart of recovery/reinstate status quo – note bias towards wealthy)
1. Calculation includes: past wages from date of accident to trial; future wages (including raises, inflation, etc.)
(4) Loss of household services
1. Market value for recovery (e.g., cooking, cleaning)
(5) Physical and Mental Pain and Suffering
1. Three approaches to quantifying damages:
(i) Ad hoc
1. Jury determines based on shared values/life experiences
(ii) Per diem or unit of time approach (subject to critique)
1. Dollar value ascertained per day/wk and multiplied by full time period
2. Pros: formula aids the jury in grasping the magnitude of claimed injury
3. Cons: small sums per unit (day/wk) can produce large awards
(iii) Multiple of special damages
1. Some jurisdictions automatically grant 2x,3x,etc. special damages
2. Pro: provides an objective basis for the evaluation
3. Cons: bias from earnings calculations incorporated into pain and suffering
2. Attorney’s fees typically stem from pain and suffering (softest part of award)
3. Loss of enjoyment: inability to partake in life’s pleasures (loss of enjoyment = absence of a good thing, whereas pain and
suffering = bad thing)
(i) Requirement of cognitive awareness
1. Pros: entire point is loss of enjoyment is a mental experience, and compensation is not possible if loss is not
experienced. Otherwise, would be punitive.
2. Cons: loss of enjoyment is similar to special damages and exists w/o awareness.
(ii) Loss of enjoyment separate from pain and suffering (some jurisdictions only)
1. Pros: not attached to earnings, more objective whereas pain and suffering is subjective. Easier for jury
2. Cons: it is an element of pain and suffering; separation might be punitive damages; good for non-wage earning
3. McDougald v. Garber, P injured in c-section and now comatose. Ct hlding: some degree of cognitive awareness is
required to recover loss of enjoyment damages. (2) Loss of enjoyment of life damages are separate from pain and
(6) Loss of consortium: separate action for damages resulting from the loss of the injured person’s society, companionship, aid,
affection, conjugal fellowship
vi) Wrongful Death and Survival (both brought by survivors; right to sue from statute)
(1) Survival actions: recover damages incurred by decedent prior to death (btwn accident and death). Usually includes medical, pain
and suffering, wages. Basically, compensatory damages prior to death.
(2) Wrongful death actions: recovery damages to beneficiaries (i.e., inheritance).
(3) Options to measure damages
1. Loss to survivors (loss of expected financial support or inheritance)
2. Loss to estate (what decedent would have earned w/o regard to probable sharing with others)
3. Pecuniary Value of Decedent’s Services, Advice, and Companionship (consortium)
4. Mental Anguish or Suffering of Survivors
b) Collateral Sources
i) Arambula v. Wells, P in car accident, P’s brother is employer and pays despite absence. Ct holding: charitable payments to
defendant are not deducted from D’s liability
ii) Collateral source rule: payments/benefits conferred on plaintiff from non-defendant sources are not deducted from defendant’s
liability (e.g., charity, family, insurance)
(1) Pros: don’t want to give D’s windfall, benefit of P’s family charitable care, or P’s payments for insurance coverage. Don’t want
to disincentivize charity and self-reliance.
(2) Cons: double recovery (compensation not needed) First person insurance is more reliable/efficient than relying on litigation (and
possibly 3d party liability insurance). Communitarian approach to insurance (good risk subsidizes bad risk).
iii) Subrogation: device in insurance contracts; if P is hurt by D’s negligence, insurer can sue D for full amount available to P, keeping
enough money to recover loss and giving any extra to P
i) Primarily for intentional torts; also for unintentional conduct particularly reprehensible (i.e., underage drunk driving).
ii) Justified through goals of deterrence and retribution.
iii) Must not be grossly excessive or arbitrary and infringe on constitutional due process rights.
iv) Measuring reprehensibility
(1) The harm caused was physical as opposed to economic
(2) the tortious conduct evinced an indifference to or a reckless disregard of the health and safety of others
(3) the target of the conduct had financial vulnerability
(4) the conduct involved repeated actions or was an isolated incident
(5) the harm was the result of intentional malice, trickery, or deceit, or a mere accident
v) Taylor v. Superior Court, P injured in DUI accident by habitual drunk driver; P asked for punitive damages. Ct hlding: intent not a
requirement for punitive damages where conduct demonstrates “conscious disregard for safety of others” (drunk knows wrong and
dangerous). Dissent: punishments are for crime; compensation is for torts. Deep pockets problem. Does deterrence really work?
vi) State Farm v. Campbell, Campbell tries to pass six drivers at once, causes accident. Campbell’s own insurance, State Farm,
unreasonably refuses to settle and forces trial. Campbell and victims get together to sue State Farm for causing harm by refusing to
settle. P introduces evidence showing SF’s national scheme of refusing settlement: win 2.6 million compensatory, 140 million
punitive. Ct hlding: these punitive damages are excessive.
Supreme Court’s Damages Guidepost
1. Degree of reprehensibility of D’s wrong
2. Disparity between compensatory damages and punitive damages
(i) Generally, single digit multiplier is max (1:9)
(ii) Must be reasonable and proportional to the harm
3. Difference btwn punitive award and civil penalties imposed in similar cases
vii) Don't claim intentional misconduct if you want their insurance to pay for the damages because insurance won't cover punitive
1) Acting with desire or purpose of bringing about contact that is harmful or offensive,
2) Acting with knowledge that such contact is substantially certain to occur
1) Focus on consequences of defendant’s conduct. The nature of the intent is inferred from the nature of the consequences.
2) A person has an important, but not absolute, right to bodily integrity
3) Irrelevant that the actor does not appreciate the legal significance or wrongful of her act
1) Status and hierarchy: used in society to deal with status group conflicts, with harm to dignity
Garratt v. Dailey, 5-year old kid pulls chair out from under aunt, she falls and breaks hip. Ct holding: for intentional tort, intent to injury
is not required; only substantial certainty that contact with occur. Motive and purpose does not matter.
b) Assault: physical or oral threat of bodily injury creating reasonable fear of imminent bodily harm
c) Battery: intentional contact or touching that causes harm or offense (generally resulting in the consummation of an assault).
1) Restatement 2d § 19: Battery Based on Offensive Contact
Contact is “offensive if it offends a reasonable sense of personal dignity.” “It must . . . be a contact unwarranted by the social
usages prevalent at the time and place at which it is inflicted.”
2) Picard v. Barry, verbal dispute between customer and employee of auto dealer, employee threatened her and then put hand on
her camera, P alleges he pushed her and hurt her back. Ct holding: threat is an assault. hand on camera is battery b/c: (1)
unconsented touching does not require intent to injury, (2) touching camera counts b/c intimately connected w/ person.
3) Super-sensitive person cannot recover if would not be offensive to reasonable peson
a. Wishnatsky v. Huey, lawyer rudely blocks paralegal from entering room; paralegal, claims to be devout Christian,
greatly disturbed by demonic forces and extremely upset by this encounter. Ct holding: super-sensitive P’s cannot
recover for offensive battery that would not be offensive to an ordinary, reasonable person. (Rst 2d § 19)
b. Similar to Res Ipsa (1st element): jury uses common experience to assess
4) Social usages determines whether touching is harm
a. Vosburg v. Putney, kid lightly touches shin of another kid while at school, later finds out kid had a pre-existing
condition and sustains more injury. Holding: judged by social norms of classroom
1. Was there intent to touch the P? If crazy leg syndrome, no. but assuming intent…
2. Was the touching offensive or harmful? Depends on social norms of classroom. Light kicking probably not
within acceptable behavior
3. How much damage was kid responsible for? Only foreseeable? Or egg-shell plaintiff rule? A: Egg-shell
b. Fisher, 1965 black NASA employee at conference, hotel manager snatches plate while at buffet. Ct holding: this
constitutes offensive contact because humiliating to any reasonable person in like context. Note, contact w/ plate is
sufficient b/c he is intimately connected to it.
d) False Imprisonment
1) Restraining someone against their will must be actual or legal intent to restraint; actual force not necessary (words/acts alone
can be sufficient).
a. Actual or apparent physical barriers
b. Overpowering physical force
c. Threats of physical force
d. other duress
e. asserted legal authority
3) Contextual dependant
a. In retail context
1. confinement of suspected shoplifter that exceeds privilege of reasonable detention
b. In employment context
1. investigations of rule breaking by employees
2. confinement of employees in the workplace to prevent theft or escape, sometimes tantamount to involuntary
3. Lopez v. Winchell’s Donut House, employers questioning employees about alleged cash register theft. P
alleges she was held for questioning against her will, but she eventually just got up and left. Ct Holding: no
apparent intent to restrain. The fact that she left w/ no problem means that she was not actually being
restrained – no tort.
e) Tort of Outrage/intentional infliction of emotional distress
a. Extreme and outrageous conduct
b. Done intentionally or recklessly
c. Causing severe emotional distress
2) Jury decides whether evidence presented surpasses threshold.
a. Standards are judged by outside sources for rules: Title VII (racial/sexual harassment in work place); statutes for
creditors-debtors; Title IX (bullying and educational context)
b. If not available, then turn to common knowledge of community
3) Invoked in employment, insurance, credit context where rules are well understood and there are external objective standards and
not purely subjective.
4) Womack v. Eldridge, D tricks P into taking picture and P gets mixed up in trial of child molestation case as witness; P suffers
from suspicions of community. Ct holding: P may recover damages for emotional distress resulting from a non-tactile tort if he
alleges and proves by clear and convincing evidence that (1) the wrongdoer’s conduct is intentional or reckless; (2) the conduct
is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the resulting
distress is severe.
5) Cause of action must be consistent with legislative intent of statute
a. McDermott v. Reynolds, D flaunted his affair with P’s wife, affecting P emotionally. Old alienation of affection tort
allowed recovery, but now outmoded. P instead tries to use ‘intentional infliction of emotional harm’ tort in the exact
way that the old alienation tort functioned. Ct holding: no, alienation tort invalid and P may not use IIED in its place.
IIED meant to be applied to clearly outrageous conduct. Reason that alienation tort invalid is that society no longer
views it as outrageous.
1. Policy concerns: judicial administration; causal morals
Defenses to Intentional Torts
i) Harm may have occurred, but activity is protected for particular reason
ii) Available defenses: First Amendment, consent, self-defense and defense of others, defense of property, necessity: public and private.
iii) 1st Amendment
1. Hustler Magazine v. Falwell, P printed fake Campari ad where Falwell humps mother. Claims IIED. Ct holding: parody valid
defense; public figures cannot show liability unless false statement of fact made w/ actual malice.
a. Reasoning: 1st Amendment values free discussion of ideas against public figures, and allowing them to sue for emotional
harm b/c of free speech will stifle debate and dilute 1st Am.
iv) Consent – either express or implied
1. Restatement (2d) § 892: Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need
not be communicated to the actor.
a. Either express or implied
b. Apparent consent (words or conduct that can be reasonably understood by another to be intended as consent) are as
effective as consent in fact.
c. Even express consent may not be valid. Some tortuous behavior cannot be consented to.
3. Limitations and exceptions:
a. Incapacity (age, mental illness); Fraud or deceit; Duress; Illegality
4. How status effects consent
a. How much autonomy should people have to consent to behavior that would otherwise be tortious? Libertarian perspective
5. Hart v. Geysel, P sues for intestate’s injuries sustained in illegal prize fight which he consented to. Ct holding: cannot recover if
consent to and engage in combat for business or sport, even if illegal. Allowing recovery would incentivize illegal activity.
(adopted minority view)
(i) Majority view: if two choose to fight in anger, each is liable for injury caused to other
1. Policy benefit: (1) compensation; (2) deters malicious punches
(ii) Minority view: fighting is unlawful and neither can collect unless it is shown that there was excessive force or
1. Policy benefit: (1) autonomy: we give people right to choose how to use their bodies; (2) shouldn’t reward illegal
Self-Defense and defense of others
6. Elements required
a. An actual and reasonable belief that force is necessary
b. Use of no more force than is reasonable (not excessive)
c. Cessation of use of force when aggressor is disarmed or helpless, or when the danger has passed
7. Yoshi Hatori v. Peairs, exchange student approaches wrong house for Halloween party, homeowner shoots. Homeowner cleared
on criminal charges, civil suit by victim’s parents. Homeowner claims reasonable self defense (thought Yoshi was attacking
him). Ct Holding: homeowner found liable. Likely failure on first two prongs.
a. To get subjective to objective – compare fault of victim to perpetrator.
b. Reasonableness depends on community standards: Attitudes towards guns, self protection instead of police, exchange
v) Defense of Property
1. To what extent should the law take into account disparities in the resources landowners can afford to put into protecting their
2. The extent of protected property rights depend on circumstances:
a. Status of actors
b. Whether life or merely property was at risk
c. Whether the damage incurred was relatively modest or substantial
d. Means available to parties for absorbing loss
3. Self defense in protection of property – deadly force not allowed
a. Pro (args for blanket rule): police should protect, indiscriminate, guns make mistake, moral – property different from life.
b. Con (args for flexible rule based on reasonableness): (Posner) takes into account community norms; real security systems
are expensive – should take means into account;
c. Katko v. Briney, spring gun set by owner of empty house to deter trespasser/thieves. P broke in looking for open bottles and
triggered spring gun, blew leg off. Ct holding: deadly force can never be used to protect property – only life.
vi) Necessity: public and private
1. Doctrine: privilege to take and use another’s property/c of certain circumstances of necessity.
2. Defendant must pay even though D not negligent. Note that this gets more complicated for public necessity (for law
3. Balance: allowed when defendant avoided that would have been greater than that actually caused to P.
4. To invoke the private necessity privilege, the defendant must have been actually threatened or have reasonably thought that a
significant harm were about to occur.
5. Even if private necessity privilege is evoke, may still be liable for damages caused
a. Vincent v. Lake Erie Transportation Co., D ties ship to dock to avoid dangerous storm; dock damaged. Issue: Is
compensation required when there is damage to another's property due to a private necessity? Ct Holding: yes, private
necessity may require damage to another’s property, but compensation is required. D had deliberately ried the boat to dock,
and if they had not done so, the ship could have been lost creating far greater damage than that caused to the dock.
However, although this was the prudent thing to do, D is still liable for damages caused.