TORTS FALL 2008
INTENTIONALLY INFLICTED HARM: THE PRIMA FACIE CASE AND DEFENSES
A. Prima facie case for intentional torts:
ii. [OR] Knowledge with substantial certainty
Intentional Torts Unintentional Torts
Intent based Fault based
What the defendant knew What the defendant should have known
Can have transferred intent No such thing as transferred negligence
No contributory negligence defense Can use contributory negligence as
Battery: An unconsented to harmful or offensive contact.
A. A battery is an intentional tort.
B. Vosburg v. Putney (1891)
a. Facts: The defendant lightly kicked the plaintiff below the knee in
class. He will never recover use of his limb again.
b. Even though the defendant did not intend to harm the plaintiff, he is
still liable for battery.
c. Rule: In an assault and battery case, if the intended act is unlawful, the
intention to commit it must necessarily be unlawful – even if the
defendant intended no harm.
i. Intent to cause harm is not an essential component of battery.
d. The court holds that in order to commit an intentional tort, there has
to be intent to perform an unlawful action OR there has to be fault.
You don’t however, have to intend to harm.
i. For non-intentional torts, you generally have to have fault.
ii. Strict liability is liability without fault and not necessarily
e. When the court looks to intent here, it is not concerned with the
person’s state of mind. The only question is whether or not the act
f. The court decided that, all you have to do is have an action in which
you know with substantial certainty that you will touch the person.
Have to pay for the full extent of the consequences, whether they are
foreseeable or not.
C. Garratt v. Dailey (Wash. 1955)
a. Facts: Child moves chair case.
b. The child never touched the woman, but still the court rules that it
was a battery. Battery is not simply touching somebody but there
always has to be a contact. The tortfeasor has to intend an act that
causes the contact.
c. The court said that the boy knew with substantial certainty that when
he moved the chair the woman would make contact with the ground.
D. Intent: Desire/Purpose OR knowledge with substantial certainty.
a. There are different objects of intent: it could be nothing more than a
volitional, voluntary, physical act. Then you could be liable for
anything that occurs in consequence, whether foreseeable or not. On
the other end, you might have to intend the actual consequences that
occur. The challenge is to decide how wide or narrow we want this to
be in terms of intentional torts.
b. Restatement Second of Torts:
i. Intent to cause harmful contact. The harmful contact has to
directly or indirectly cause the harm.
ii. Central position.
c. Restatement Third:
i. A person acts with the intent to produce a consequence if:
1. The person acts with the purpose of producing that
2. The person acts knowing that the consequence is
substantially certain to result.
a. Not as plaintiff friendly.
E. White v. University of Idaho (Ohio 1990)
a. Piano teacher makes a crescendo motion on his student’s back. A rib
i. The court says that it is battery.
ii. The only thing that the teacher knew with substantially
certainty was that he was making contact. Yet he was liable for
all the consequences that followed.
F. Talmage v. Smith (Mich. 1894)
a. Transferred intent.
b. The defendant had no knowledge, or desire to, hit the plaintiff with a
stick. But he had a desire/purpose to make contact with some one
else. Therefore, he is liable.
c. We do not require a complete match of your intent with the plaintiff.
d. Even if the consequences are unforeseeable (the person hit happens
to be more frail than the other), the person who threw the stick is still
e. Can have transferred intentional torts, but not transferred negligence.
G. Shaw v. Brown & Williamson (D. Md. 1997)
a. Lawsuit against the tobacco company for battery because of second
b. The company knew with substantial certainty that when it made
cigarettes and put it out to the public, people would purchase them,
give the company money, and that the people would smoke them. The
company knew that people would exhale smoke near others. They
also knew with substantial certainty that it would be harmful. And it
was their desire that people would smoke.
c. But the court said: No battery because it would lead to too many
people suing. It would set a bad precedent and would create too much
liability. Also, the court is not in charge of law reform.
A. For the property that is most intimately associated with a person (real
property), the plaintiff does not need to show that the defendant caused
actual harm. This shifts when it comes to personal property. Then courts
generally want to see actual damage.
B. Doughtery v. Stepp (N.C. 1835)
a. Facts: The defendant entered on the unenclosed land of the plaintiff,
with a purveyor. Did not mark trees or cut bushes.
b. It is still trespass even though there was no obvious damage to the
c. Rule: Every unauthorized and therefore unlawful entry, into the close
of another, is a trespass.
d. Legal Reasoning: The law infers some damage from the act of
e. The entry itself is the trespass, even without noticeable damage.
Damage affects the amount you can recover, not the fact that there is a
f. Even if the defendant thought it was his land, he is still liable. All he
needed was the intent of going onto the land.
C. Brown v. Dellinger
a. Liability for intentional torts doesn’t depend on whether or not you
are acting reasonably or how big or little the act is.
D. Cleveland Park v. Perry
a. Facts: Boy goes swimming. He is allowed in the pool but then opens a
grate and puts a ball in the hole. It ruins the pool.
b. The trespass occurs when he went into the grate.
c. He had an intent to complete the act. There is no need for the intent to
be harmful or offensive. He probably didn’t even realize that he was
trespassing. But he was still liable for the full range of consequences
no matter how unforeseeable they were.
d. Vosburg and Cleveland Park are pretty far to one side in terms of
diminished knowledge of intent.
E. Intel Corporation v. Hamidi (Cal. 2003)
a. Facts: Hamidi sent emails criticizing Intel’s employment practices to
thousands of employees. He breached no security and caused neither
physical damage nor functional disruption.
b. The tort of trespass does not extend to electronic mail communication
that neither damages the recipient computer system not impairs its
c. With trespass to personal property, there has to be physical damage
to the property itself.
Consent: Actual, Implicit, Informed, and Unlawful
A. Core principle: You have to have actual consent. Mistake doesn’t make a
difference unless the plaintiff somehow created it.
a. We are willing to say that there is consent when there is not (implied
in law – emergency cases, for example) and not consent when there is
(implied in law no consent – can’t consent to a crime, for example).
b. If you did not consent then it can’t be; if you did consent then it must
i. If the doctor thinks you consented but you didn’t: No consent.
ii. If the doctor thinks you should have consented: No consent.
iii. If any idiot would have consented: No consent.
iv. If you consented but you shouldn’t have: No battery.
v. If you consented but the doctor didn’t realize that performed
anyway: No battery.
c. Implied in fact consent: there was actual consent but the court is more
willing to find it.
d. Implied in fact no consent: If you didn’t really understand, then it
wasn’t informed consent and therefore was in fact no consent.
B. Types of consent:
a. Implied in fact: Action implies consent:
i. Example: case of immigrants waiting in line for shots and the
woman holds out her arm.
b. Implied in law:
i. There was definitely no consent but the law says that we don’t
1. Example: Emergency surgery.
C. Mohr v. Williams (Minn. 1905)
a. Facts: Physician who specializes in ear operated on the patient’s
opposite ear when realized that that one was in more imminent need
of surgery than the other.
b. If a doctor operates on a patient in good faith, and performs a
procedure to which the patient did not previously consent, is he may
still be liable for battery. If the procedure was not an emergency and it
was unauthorized, then technically, it was unlawful and the patient’s
consent could not be implied.
c. Rule: If the operation was performed without plaintiff’s consent, and
the circumstances were not such as to justify its performance without,
it was unlawful.
D. Kennedy v. Parrott (1956)
a. Facts: While performing an appendectomy, the surgeon discovered
cysts on the plaintiff’s left ovary. He intentionally punctured them, but
– without negligence – the puncture cut one of the plaintiff’s blood
b. A doctor is not liable for trespass if he operates on a patient in good
faith and performs procedures to which the patient did not previously
c. Rule: Consent will be construed as general in nature if the doctor, in
the exercise of his sound professional judgment, determines that
correct surgical procedure dictates and requires such an extension of
the operation originally contemplated. This rule applies when the
patient is at the time incapable of giving consent, and no one with
authority to consent for him is immediately available.
E. Hoofnel v. Segal (Ky. 2006)
a. Facts: Removal of uterus and ovaries.
b. A physician is not liable for performing necessary procedures during
an operation to which the patient had verbally expressed that she did
not want but which she consented to on a written form.
c. Rule: If the form is clear and unambiguous, then it dominates the
previous conversations – in which case the doctor would not be held
d. Legal Reasoning: presumption that patients read the forms that they
F. O’Brien v. Cunard Steamship Co. (Mass. 1891)
a. Facts: Immigrant’s vaccination case.
b. A physician is not liable for giving a person a shot that is necessary to
enter the country if her actions expressed consent but she never did
c. The physician is not liable because the plaintiff consented non-
G. Pizzalotto v. Wilson (1983)
a. A doctor is liable for removing a woman’s reproductive organs during
an operation when it was medically necessarily but not an emergency,
and the patient had not explicitly consented to the procedure.
b. Rule: A surgeon commits a battery on his patient when he undertakes
a particular surgical procedure without the consent of the patient or
an authorized person, except when an emergency requires immediate
surgery for the preservation of life or health under circumstances
when such consent cannot be practicably obtained.
i. Emergency rule: Normally a patient has the right to accept or
reject proffered medical treatment. This is true except in cases
of emergency where the patient is unconscious and where it is
necessary to operate before consent can be obtained.
Sometimes the emergency rule is cased in the language of
1. Assumption that the plaintiff, as a rational agency,
would have consented to the operation if she could have
c. Although the doctor may not have had any hostile intent, and even
though the surgery may have been beneficial, the doctor did not have
the patient’s consent.
H. Hudson v. Craft (D.C. Cir. 1972)
a. Question Presented: If a person is injured in an illegal boxing match,
should the people in charge of the match – who did not follow the
appropriate regulations – be held liable?
b. Holding: Yes.
c. Majority Theory: As each contestant has committed a battery on the
other, each may hold the other liable for any injury inflicted.
i. If you consent to a boxing match, both fighters can bring an
action. Although there is in fact consent, it is implied in law no
d. Minority Theory: No liability. If you consented then you cannot bring a
i. Volenti non fit injura: A person is not wronged by that to which
he or she consents.
ii. Ex turpi cause non oritur action: No action shall arise out of an
improper or immoral cause.
e. The Restatement of Torts adopts the minority view although it
provides an exception: Can bring a suit if the purpose of the statute
that was violated was to protect a certain class/category of person
who couldn’t protect itself.
f. This case/plaintiff falls under the exception listed in the Restatement.
I. Hackbart v. Cincinnati Bengals, Inc.
a. NFL injury case.
b. In a professional sporting event, a defendant is held liable for
inflicting harm on an opponent if the action defies game regulations.
J. Turcotte v. Fell
a. When certain risks are inherent in the rules of a sport, no liability.
K. Marchetti v. Kalish
a. Before a party may proceed with a cause of action involving injury
resulted from a recreational or sports activity, reckless or intentional
conduct must exist.
L. Modern cases take a less rigid view of the consent requirement than earlier
M. Third Restatement: Recklessness
a. A person acts recklessly in engaging in conduct if:
i. The person knows of the risk obvious to another in the
person’s situation, and
ii. The precaution that would eliminate or reduce the risk
involves burdens that are slight relative to the magnitude of
a. McGuire v. Almy (Mass. 1937)
i. Facts: Plaintiff was employed to take care of insane defendant.
Defendant struck the plaintiff’s head with a low-boy.
ii. An insane person may be held liable for intentional torts.
iii. Rule: The insane person must have been capable of
entertaining that same intent and must have entertained it in
iv. Legal Reasoning: Fault is not a prerequisite to liability.
v. Problem: how do we know whether the insane person really
had the intent? What if the woman had been delusional and
thought she were hitting a space bug? Would that have made a
b. Anicet v. Gant (Fl 1991)
i. Facts: Anicet was institutionalized. He had an inability to
control himself from acts of violence, particularly throwing
objects. Anicet threw a heavy ashtray at attendant, who was
injured in twisting to avoid it.
ii. Rule: Insane people are generally liable as all people are
1. Between an innocent person and incompetent injuring
one, the latter should bear the loss.
2. It would encourage the utmost restriction of the insane
person so he would not cause more damage.
iii. Application: these reasons don’t apply to this case.
1. Workers’ compensation.
2. Anicet’s relatives did all they could by putting him in an
a. Only when necessary and only to the degree necessary.
b. Courvoisier v. Raymond (Colo. 1896)
i. Facts: After break-in, Courvoisier shot a sheriff (not the
ii. A jury should consider the justification of self-defense and the
surrounding context when determining judgment for
iii. It is important to determine whether the defendant mistook
the plaintiff for one of the rioters.
iv. Instead of being retrospective, the court should use the
reasonable man test:
1. Whether a reasonable person would have thought that
his life was in danger or subject to great bodily injury.
2. The Court also asks the question about this particular
defendant. What was his state of mind?
3. These two questions are necessary but not sufficient.
This court believes that you need both.
1. An innocent bystander injured during self-defense
2. A reasonable mistake about self-defense is valid.
a. This is different from consent. If a doctor makes
a reasonable mistake about consent, it is not a
defense. But bodily integrity is a core notion;
therefore, self-defense is a core notion.
c. Morris v. Platt
i. The court held that the accidental harming of an innocent
bystander by force reasonably intended in self-defense to repel
an attack by a third party is not actionable.
C. Defense of Property
a. You have a duty not to escalate conflicts in defense of property.
b. You also have a duty to retreat if what you are about to do is deadly
and you can extricate yourself and you are not in your home (your
home is special because it is an extension of you). You also may not
use deadly force if you know that the person is innocent (even if in
c. You cannot kill someone for destroying your property or put them at
risk for severe bodily injury for your property, real or personal.
d. The law is pretty rigid when it comes to defense of property.
Generally, you cannot shoot the person. You can lay gentle hands on
an intruder. If he takes a swing, then you can swing back. You can’t,
however, jump levels of force.
e. Property is different from your life. With property, the law is less
willing to allow you to use force.
f. M’Ilvoy v. Cockran
i. Facts: Defendant shot and wounded the plaintiff, while the
latter was attempting to tear down a fence on M’Ilvoy’s land.
ii. Holding: The defendant did not have to request the plaintiff to
leave when he was engaged in the active destruction of
property, as would be the case for a simple entrance. However,
the wounding was not justified. It would have only been
justified if he or his family were in danger.
g. Bird v. Holbrook (England 1925)
i. Facts: Spring gun in garden case.
ii. The homeowner is held liable for injuries caused from a spring
gun set up in daylight in his garden without notice.
iii. Rule: Need to have notice.
h. Katko v. Briney
i. A homeowner is held liable for damages caused by a shotgun
trap that was set up to shoot trespassers in his home.
a. Ploof v. Putnam (Vermont 1908)
i. Facts: Storm caused plaintiff to moor his boat on defendant’s
dock. Defendant’s servant unmoored it casting plaintiff’s family
and the family’s possessions into the lake.
ii. It makes a difference that the defendant actively untied the
rope, instead of just refusing the plaintiff to dock. The untying
was a contact with the other person’s property. Trespass
implies contact. If he had just said “don’t come,” there would be
no trespass. But because he untied it, there is trespass.
iii. Holding: The defendant is held liable for the damages.
iv. Legal Reasoning: The doctrine of necessity justifies what
otherwise would be considered trespass. The doctrine applies
with special force when it comes to preservation of human life.
b. Vincent v. Lake Erie Transportation (Minn. 1910)
i. The boat owner was not negligent. He was correct to dock his
boat during the storm; he was compelled to do so by necessity.
But he is still liable.
ii. Necessity is the opposite of self-defense. In self-defense, if I try
to protect my life and I accidentally kill someone, I don’t have
to pay for damages. Under Vincent v. Lake Erie, if I try to
protect my life and I damage someone’s dock, I have to pay for
1. The difference is acting with knowledge/substantial
certainty of the contact. You don’t have that when you
accidentally kill an innocent bystander but you do have
that, the court thinks, in Vincent v. Lake Erie. He has
knowledge of substantial certainty of contact. The court
assumes that when they tighten the boat, they know
that the boat will hit the dock.
iii. Fault seems to be missing from intentional torts. But the
concerns come back in terms of self-defense, defense of
property, defense of others, consent, etc. Just have to act
iv. The amount of intent required in Vincent v. Lake Erie in terms
of contact is so tenuous that it really does provoke a pretty
strong notion of strict liability. While Corvoisier v Raymond
and Morris v. Platt look for fault, Vincent was not based on
v. Rule: Necessity allows for certain actions but compensation
must be made.
E. Affirmative defenses for accidental torts (negligence).
a. Contributory negligence.
b. Assumption of risk.
i. Primary (No duty to the plaintiff).
ii. Secondary (Duty, but the plaintiff chooses to encounter a
c. Last clear chance.
TORTS AGAINST NON-PHYSICAL INTERESTS
A. When there is something mentally distressing about the contact, it becomes
part of the prima facie case, not a parasitic. (For assault, it becomes an
apprehension of harmoffensive contact. For battery it is an offensive contact).
This recognizes the legitimacy of a certain kind of tort law (the mental
aspects). Over time, tort law starts to recognize mental injuries.
A. There is a strong desire to link intentional torts to something physical,
whether that be a physical contact, an apprehension of a physical contact, a
limitation of physical movement etc.
B. Assault: Apprehension of a harmful/offensive physical contact. The
apprehension has to be reasonable and of an imminent physical contact.
C. Restatement Second of Torts: Assault
a. An actor is subject to liability to another for assault if:
i. He acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and
ii. The other is thereby put in such imminent apprehension.
D. Use the reasonable person standard. But if the defendant knows about a
particular idiosyncrasy of the plaintiff’s, he can’t hide behind the objective
reasonable person’s standard.
E. I. de S. and Wife v. W. de S. (1348 or 1349)
a. Facts: Hatchet through the door but did not touch the woman.
b. Rule: A defendant may be held liable for harm when he has not
physically touched the plaintiff.
c. When there is an assault, there is harm.
F. Tuberville v. Savage (England 1669)
a. Facts: Defendant put his hand on sword and said, “If it were not
assize-time, I would not take such language from you.”
b. Rule: A defendant is not liable for assault if he takes an action that
appears to be an assault but he clearly has no intention to fulfill the
G. Allen v. Hannaford (Wash. 1926)
a. Unloaded pistol case.
b. Rule: Whether there is an assault in a given case depends more upon
the apprehensions created in the mind of the person assaulted than
upon what may be the secret intentions of the person committing the
H. Brower v. Ackerly (Wash. App. 1997)
a. Threatening anonymous phone calls do not constitute assault because
there needs to be an immediate threat.
A. Restatement (Second) of Torts
a. Battery: Offensive Contact
i. An actor is subject to liability to another for battery if
1. He acts intending to cause a harmful or offensive
contact with the person of the other or a third person,
or an imminent apprehension of such a contact, and
2. An offensive contact with the person of the other
directly or indirectly results.
B. Alcorn v. Mitchell (Ill. 1872)
a. Facts: Defendant spit in plaintiff’s face.
b. Rule: A judge may instruct juries that they may give vindictive
damages where there are circumstances of malice, willfulness,
wantonness, outrage and indignity attending the wrong complained
C. Respublica v. De Longchamps (Pa. 1784)
a. Facts: Defendant struck the cane of the French ambassador.
b. Rule: The protection afforded against offensive battery covers not
only cases of direct contact with the plaintiff’s person, but also contact
with anything so closely attached to the plaintiff’s person that it is
customarily regarded as a part thereof and which is offensive to a
reasonable sense of personal dignity.
D. England v. S&M Foods (La. 1987)
a. A battery is any intentional and unpermitted contact with the
plaintiff’s person or anything attached to it or practically identified
b. Mental distress and humiliation in connection with a battery are
compensable items of damage.
c. Intent: throw the hamburger knowing with the substantial certainty
that the condiments would splash the plaintiff’s pants.
d. There had to be contact. If the mustard had missed her pants there
would be no battery, but there would be assault.
e. The real injury here was the plaintiff’s humiliation (not the contact)
but the court could seize upon that condiment-contact. Because of the
contact, traditional tort liability follows. If he had done everything but
throw the hamburger, she would have the same humiliation but
wouldn’t have been able to hold her boss liable.
E. Funeral Services By Gregory v. Bluefield Hospital (W. Va. 1991)
a. Question Presented: Was a mortician who embalmed a corpse,
unaware that it was infected with AIDS, subjected to a battery?
b. Holding: No. If a suit for damages is based solely upon the plaintiff’s
fear of contracting AIDS, but there is no evidence of actual exposure to
the virus, the fear is unreasonable, and this Court will not recognize a
legally compensable injury.
c. Stronger argument for battery here than the court is willing to admit.
Why? Why is mustard on the pant-leg enough for an offensive battery
but not this? There may have been a concern at the time about
misconceptions about AIDS. The court didn’t’ want to create the
precedent that exposure to the AIDS virus is a reasonable
apprehension of an offensive contact.
a. Intentional act that confines a person within boundaries fixed by the
b. The person is aware of the confinement or is harmed by it.
B. Restatement (Second) of Torts:
a. The area within which another is completely confined may be large
and need not be stationary.
b. Depends upon the circumstances of the particular case.
C. Normally, the defendant is not liable if he has no intent to confine. But if
physical harm incurs, then the defendant is liable.
D. False imprisonment also places some kinds of responsibilities on the plaintiff.
Plaintiff has an obligation to attempt to extricate herself. But what is a
reasonable attempt can vary.
E. Bird v. Jones (England 1845)
a. Facts: Public highway partly obstructed.
b. Rule: Imprisonment is something more than the mere loss of the
power to go where one pleases; it includes the notion of restraint
within some limits defined by a will or power exterior to our own.
c. Legal Reasoning: This would lead to every obstruction of a right of
way turning into false imprisonment.
d. Dissent: Just because you have an escape doesn’t mean that it is not
F. Whittaker v. Sandford (1912)
a. The plaintiff was imprisoned on the yacht so long as she was denied
access to shore by a boat.
G. Sindle v. New York City Transit Authority (1973)
a. Question Presented: Might a bus-driver, entrusted with students and
township property, be justified in temporarily imprisoning his
passengers on the way to the police station?
b. Holding: Potentially, yes.
c. Rule: Generally, restraint or detention, reasonable under the
circumstances and in time and manner, imposed for the purpose of
preventing another from inflicting personal injuries or interfering
with or damaging real or personal property in one’s lawful possession
or custody is not unlawful.
Intentional Infliction of Emotional Distress
a. Defendant acted intentionally or recklessly; and
b. Defendant’s conduct was extreme and outrageous.
c. Defendant’s act is the cause of the distress; and
d. Plaintiff suffers severe emotional distress as a result of defendant’s
B. Baby steps leading up to intentional infliction of emotional distress.
Acknowledges that that contact isn’t necessarily what we care about. It
happens in egregious cases, where the court can’t even pretend that contact
C. We want people to let out some steam (safety valve), freedom of speech, we
want people to learn to tolerate some emotional distress – but not if it is
extreme and outrageous.
D. Must be intentional or reckless (consciously disregarding the risks).
E. The emotional distress has to cause physical harm to a third party if that
third party is viewing someone’s injury (unless it is a member of the person’s
F. Wilkinson v. Downton (England 1897)
a. The plaintiff may recover damages for emotional distress caused by a
cruel practical joke because there was an intent to cause harm.
b. Here, physical injury is caused by a mental injury. Traditionally, it’s
been the physical injury which causes the mental injury. The court is
still unable to let go of a physical aspect.
G. Bouillon v. Laclede Gaslight Co. (1910)
a. Meter maid case.
b. A defendant is liable for emotional distress that resulted from an act
of trespass, even though the plaintiff does not sue for the first tortious
c. Rule: A trespasser is liable to respond in damages for such injuries as
may result naturally, necessarily, directly and proximately in
consequence of his wrong. Consequences may be pursued even
though plaintiff seeks no compensation for the original wrong.
d. Parasitic damages. The trespass caused emotional distress.
e. But there was no relationship between the foot crossing the threshold
and miscarriage. The actual thing that makes it a tort has very little to
do with emotional distress.
f. There is a pressure to make this kind of activity tortious.
H. State Rubbish Collections Association v. Siliznoff (Cal. 1952)
a. A defendant is held liable for punitive damages for threatening the
plaintiff to expect future harm.
b. Rule: A cause of action is established when it is shown that one, in the
absence of any privilege, intentionally subjects another to mental
suffering incident to serious threats to his physical well-being,
whether or not the threats are made under such circumstances as to
constitute a technical assault.
I. George v. Jordan Marsh Co. (Mass. 1971)
a. Bill collectors are held liable for emotional distress when harassing
tactics cause physical harm.
J. Rockhill v. Pollard (Or. 1971)
a. Facts: Serious mistreatment by doctor after car accident.
b. A professional can be held liable for emotional distress for willfully or
recklessly failing to perform his duty.
K. Estate of Trenadue v. United States (10th Cir. 2005)
a. The Bureau of Prisons could be held liable for emotional distress for
improperly dealing with a grieving family in the wake of their son’s
death in the prison because their conduct was outrageous and it
needlessly and recklessly intensified the family’s emotional distress.
L. Hustler Magazine v. Falwell (Supreme Court 1988)
a. This case is extreme and outrageous and it caused Falwell harm. But
because free speech is so important, it trumped the tort of intentional
infliction of emotional distress.
M. Logan v. Sears, Roebuck & Co. (1985)
a. “This guy is as queer as a three-dollar bill.”
b. Legal Reasoning: The law requires severe emotional distress. Does not
recognize recovery for mere insults (change since Respublica).
STRICT LIABILITY AND NEGLIGENCE: HISTORIC AND ANALYTIC FOUNDATIONS
Early History and Forms of Action
A. Origins of negligence find themselves in the two writs: trespass (direct
injury/strict liability) and trespass on the case (indirect, negligence).
Generally, everything was a trespass. But then there were also less direct
types of contact. Originally, as the writs worked, you had to pick one – the
right one. If you picked the wrong one, you lost. As society became more
complicated, it became less and less clear which one was correct.
a. Trespass is a direct injury/contact. Trespass on the case is indirect.
b. Traditionally, if you were bringing a trespass, it could be on an
intentional tort theory. If you brought case, it would be based on a
B. Negligence rose to the forefront in part because of procedure – a move in
England to allow someone to plead trespass on the case whether it was an
immediate or an indirect causation. Therefore, it obviated the need to know
ahead which way the court would think it went. But, you have to show
a. Trespass on the case requires negligence because the damage is less
C. Scott v. Shepherd (England 1773)
a. Lighted squib case.
b. The defendant is held liable for a trespass and assault, even though
the harmful consequences were not immediate.
c. An action of trespass is maintainable where the natural and probable
consequences of the defendant’s act were to injure somebody, despite
the fact that there were intervening actors.
d. Was this trespass or trespass on the case? The judges have different
opinions about this.
e. This case illustrates the problems with a modernizing society. There
are different kinds of chains of causation and different kinds of
technology. We need a new framework for thinking about negligence.
D. Williams v. Holland (England 1833)
a. The court held that the plaintiff could sue in case, no matter whether
the harm was immediate or consequential, as long as the plaintiff
could show that the harm occurred as a result of the defendant’s
b. Importance of the decision: The plaintiff in virtually all running-down
cases would prefer case to trespass because case allowed him, first, to
avoid having to guess whether harm was immediate or consequential
and, second, to join both master and servant in a single suit.
Strict Liability and Negligence in the Last Half of the Nineteenth Century
A. Brown v. Kendall (Mass. 1850)
a. Facts: Defendant accidentally hit the plaintiff in the eye with a stick
when trying to separate their dogs.
b. Rule: If the act of hitting the plaintiff was unintentional, on the part of
the defendant, and done in the doing of a lawful act, then the
defendant was not liable, unless it was done in the want of exercise
and care. (Ordinary care standard).
c. Importance: Brown v. Kendall is one of the first cases to state the
rationale for why it should be a fault-based negligence inquiry. This
negligence standard is a new notion.
B. Rylands v. Fletcher (England, 1865 – 1868)
a. Facts: Plaintiff’s property was flooded, by a reservoir constructed on
the defendants’ land.
b. The court establishes an absolute duty (strict liability).
c. Rule: If a person brings, or accumulates, on his land anything which, if
it should escape, may cause damage to his neighbor, he does so at his
own peril. If it does escape, and cause damage, he is responsible,
however careful he may have been, and whatever precautions he may
have taken to prevent the damage.
C. Rickards v. Lothian (1913)
a. Facts: Third party stuffed toilet and turned on water, which destroyed
business on a floor below.
b. A defendant is not held liable if a third party causes a normal,
household necessity to cause damage to the plaintiff.
c. It would be unreasonable for the law to regard those who install and
maintain such a necessary feature as doing so at their own peril.
D. Nichols v. Marsland (1876)
a. If damage is caused by an act of God it falls under an exception of
Rylands v. Fletcher. No liability.
E. Re Flood Litigation (W. Va. 2004)
a. Defendants are only liable under strict liability if they engage in
abnormally dangerous activities.
b. Where a rainfall event of an unusual and unforeseeable nature
combines with a defendant’s actionable conduct to cause flood
damage, the defendant is only liable for the damages that are fairly
attributable to the defendant’s conduct.
F. Brown v. Collins (1873) – Trespass (Historic definition)
a. A defendant is not held liable for damages when, without fault, his
horse broke from his control, ran away with him, went upon the
plaintiff’s land, and did damage there, against defendant’s will, intent,
b. Legal Reasoning: Ryland is arbitrary. The rules were introduced in
England during an undeveloped, unprogressive time. To extend
Ryland (and strict liability) would put an obstacle in the way of
progress and improvement.
G. Initially, Rylands received a frosty reception in America. But it made
substantial inroads during the first half of the twentieth century.
H. Powell v. Fall (England 1880)
a. A statute which states that a defendant who drives a faulty locomotive
be held liable for damages caused, does not exempt a defendant if he
causes harm without negligence.
b. Rule: If a person uses a dangerous machine, he should pay for the
c. This holding is completely different from Brown v. Collins. Brown v.
Collins would say that we should keep the engines going unless
a. The original strict liability theory (that man always acts at his peril) is
not coherent. The “voluntary” notion is really about fault.
b. Historical argument: let’s just call it what it is.
c. Moral argument: it’s just not fair.
d. Social argument: we want action. This is the age of industrialization
J. Vaughn v. Taff Vale Ry (1860)
a. Because the defendant operated the railroad under the statutory
authorization, plaintiff had to show negligence to hold it liable for
K. River Wear Commissioners v. Adamson (1877)
a. Facts: Defendant’s boat was wrecked in a storm. After the crew
abandoned it, it crashed into the plaintiff’s dock.
b. The owner is not liable without proof of negligence.
c. Legal Reasoning: Property adjoining to a spot on which the public has
a right to carry on traffic is liable to be injured by that traffic. The
owner of the injured property must bear his own loss, unless he can
establish that some other person is in fault, and liable to make it good.
The Reasonable Person
A. Holmes, in many respects, has his way. Negligence becomes at the turn of the
20th century, very much part of the dominant rubric of tort law.
B. Negligence will fight for broader definitions of all four elements. Strict
liability concerns will be searching for narrower definitions of the elements.
a. Duty: the court, not the jury, decides if defendant had a duty to
exercise reasonable care for a specific plaintiff. The law uses the
concept of duty to limit situations where a defendant is liable for a
b. Breach: standard of care for determining whether someone has
breached starts as an ordinary man, becomes a reasonable person. In
trying to determine how to apply the standard, we have to answer
i. Who is our reasonable person? Are we going to define the
person in general or individualistic ways? The more generic we
are, the more likely it is that we will find negligence.
ii. Should we use proxies (age, gender, education etc) for certain
kinds of traits?
c. Causation: cause-in-fact and proximate cause (but proximate cause is
really more about duty).
D. Vaughan v. Menlove (England 1837)
a. Facts: Defendant’s rick of hay caught fire and burned his neighbor’s
two cottages. He was warned but said he “would chance it.”
b. The court makes it clear: we will use the ordinary person standard. Be
the best a person can be, not the best you can be. We expect better of
i. This is consistent with Holmes. We all have to prove ourselves.
More active tort law (social engineering). This is not a stupid
ii. If there is some distinct condition, that will be different.
1. Age was seen as different, historically.
2. Disabilities: tort law will not assume that you can do
something that you cannot do.
a. In some ways, this is a shield, but it’s also a
sword because the blind man is expected to
know that he cannot see. That might mean that
he can’t do things that others can do. It is easy to
say this about a physical condition. It’s harder to
say it about a mental condition. There is less
reason to make mental disability into a sword.
E. Holmes, The Common Law: 1881
a. The standards of the law are standards of general application. A
certain average of conduct, a sacrifice of individual peculiarities going
beyond a certain point, is necessary to the general welfare (with
F. Roberts v. Ring (Minn. 1919)
a. The 77-year-old defendant is liable for negligently hitting a seven year
old with a car when the boy was not acting safely?
b. Legal Reasoning: A boy of seven is not held to the same standards of
care in self-protection. In considering his contributory negligence the
standard is the degree of care commonly exercise by the ordinary boy
of his age and maturity. (Age as a shield). Defendant’s infirmities,
however, didn’t relieve him from the charges; maybe he shouldn’t
have been driving. His age makes his actions more negligent, rather
than less negligent. (Age as a sword)
G. Daniels v. Evans (N.H. 1966)
a. Facts: Plaintiff’s decedent, a 19-year-old youth, was killed when his
motorcycle collided with defendant’s automobile.
b. A minor operating a motor vehicle must be judged by the same
standard of care as an adult because he is engaged in a dangerous
c. The court looks the nature of the activity and to the external rules and
regulations for the activity. Is it something where the defendant can
tell that the other person is underage so he is able to respond?
a. The Second Restatement provides that the defendant is “required to
exercise the skill and knowledge normally possessed by members of
that profession or trade in good standing in similar communities,” but
that standard is subject to an important caveat – “unless he represents
that he has greater or less skill” than average.
b. The Restatement Third on Liability for Physical Injury similarly holds
that the case for the rule is strongest when the two parties have
agreed to it, or when the defendant is engaged in dangerous activities.
c. The Third Restatement adheres to the general rule, holding a child to
the standard of “a reasonably careful person of the same age,
intelligence, and experience.” In addition to the exception for adult-
like activities, it also provides that a child under five years is incapable
I. Goss v. Allen (N.J. 1976)
a. A 17-year-old beginning skier was held, not to the adult standard of
care, but to a standard appropriate to youths of the same age. There is
no license to ski (as there is with driving).
J. Breunig v. American Family Insurance Co. (Wis. 1970)
a. Batman case.
b. Question Presented: Can insanity be used as a defense in negligence
i. Look at the nature of insanity:
1. Look to see if it affects understanding circumstances,
2. If it doesn’t, does it affect the ability to perform/control
3. AND: Even if one of those factors are present: we want
to see if there’s notice.
ii. Problem: what if the disability that prevents understand, also
prevents the person from understanding the notice? And how
precise must the notice be to say that it is there? (We also saw
this problem in consent issues).
K. Ramey v. Knorr (2005)
a. Facts: Defendant rammed headlong into the plaintiff in an attempt to
b. Defense of mental incapacity was rejected because she had a history
of mental delusions/disorder. (Notice)
L. Gould v. American Family Mutual Insurance (Wis. 1996)
a. Facts: The defendant, an institutionalized patient with Alzheimer’s,
injured his paid caregiver.
b. Rule: A person institutionalized, with a mental disability, and who
does not have the capacity to control or appreciate his or her conduct
cannot be liable for injuries caused to caretakers who are employed
for financial compensation.
Calculus of Risk
A. Blyth v. Birmingham Water Works (England 1856)
a. The defendant is not liable for damage caused by well-built pipes,
which burst during an exceptionally severe winter.
b. This is an acquiescent standard. Because it not ordinary, the
waterworks company is not held liable. But it is foreseeable that non-
average things will happen.
c. Fairness: it would be monstrous to hold them liable for this.
d. Control: someone else could have cared for the pipes.
e. But: maybe the defendants should have anticipated this at some point
during the six-week-long frost. Maybe a new duty arose? The court,
however, treats this as only one moment.
B. Eckert v. Long Island R.R. (NY 1871)
a. Facts: Deceased saved a child from being hit by an oncoming train and
was hit himself. He died that night.
b. The deceased’s decision to put himself in danger does not protect the
defendant from liability.
c. Rule: For a person engaged in his ordinary affairs, or in the mere
protection of property, knowingly and voluntarily to place himself in a
position where he is liable to receive a serious injury, is negligence,
which will preclude a recovery for an injury so received; but when the
exposure is for the purpose of saving life, it is not wrongful, and
therefore not negligent unless such as to be regarded either rash or
d. In emergency circumstances, as a practical matter, the law is really
saying Good Faith. We can’t expect more than instinct. This is the case
in self-defense as well.
C. Terry Calculus: Negligence
a. Five factors to evaluate for negligence:
i. The magnitude of the risk.
ii. The value or importance of that which is exposed to the risk
iii. A person who takes a risk of injuring the principal object
usually does so because he is pursuing some object of his own.
iv. Probability that the collateral object will be attained by the
conduct which involves risk to the principal; the utility of the
v. Probability that the collateral object would not have been
attained without taking the risk; the necessity of the risk.
1. Risk x Value of exposed object = expected loss.
2. Principle object x (probability of success with risk –
probability of success without risk) = expected gain.
3. Negligence = if expected loss is greater than the
b. Seavey on Negligence: Does not agree that you could use a calculation.
D. Osborne v. Montgomery (Wis. 1931)
a. Facts: Plaintiff fell off bike when defendant opened car door.
b. The judge was wrong to instruct the jury to define ordinary care as
what the great mass of mankind would do.
c. Legal Reasoning: The defect in the instruction is that it indicates no
standard by which the conduct of the defendant is to be measured.
There is the idea that if one does an act which results in injury to
another, he departs from the standards which are followed by the
great mass of mankind. The statement is true in all situations where
liability exists, but it does not exclude situations where liability does
d. The court must balance the social interests involved, rather than just
looking at what is average.
E. Cooley v. Public Service Co. (N.H. 1940)
a. The power company was not obligated to implement precautions that
would protect telephone users from hearing a potential blast but
would endanger the people on the street by increasing their risk of
F. United States v. Carroll Towing Co (2nd Cir. 1947)
a. Facts: Barge sunk when no bargee was on board.
b. Two kinds of damage: collision damage and sinking damage.
c. The Conners Co. should have had a bargee aboard during the working
d. Legal Reasoning: The owner’s (Conners) duty is a function of three
i. The probability that she will break away.
ii. The gravity of resulting injury if she does.
iii. The burden of adequate precautions.
1. Probability (P), Injury (L), and Burden (B): B < PL
e. First famous expression of Learned Hand’s BPL formula!
i. If the burden of precautions is less than the probability of
injury times the extent of injury, than it is negligent not to take
the precautions. If the burden would cost more, than it is not
f. Issues with BPL:
i. There could be lots of Bs and they have all different, complex
ii. There can be lots of uncertainty in the P and L (and B too).
iii. Maybe the B could decrease the risks of one injury but increase
the risk of another.
iv. There could be aspects of L that are difficult to monetize.
v. There could be other people who could take responsibility for
B. It may be the plaintiff.
vi. Could be lots of different Ls as well.
vii. Who has to show that the defendant’s conduct was negligent?
The plaintiff. The plaintiff will have to establish the BPLs and
there may be an informational problem here about who’s more
likely to have that information.
viii. Disincentive for progress. We need room to make mistakes.
g. What if the standard were strict liability? Can still use BPL. But there
is still a difference in the two worlds. In negligence, you don’t have to
pay for the injuries that result if you use proper care. In strict liability,
you still have to pay even if you are not negligent.
G. The Third Restatement: Negligence
a. A person acts negligently if the person does not exercise reasonable
care under all circumstances. Primary factors to consider in
ascertaining whether the person’s conduct lacks reasonable care are
the foreseeable likelihood that the person’s conduct will result in
harm, the foreseeable severity of any harm that may ensue, and the
burden of precautions to eliminate or reduce the risk of harm.
A. One way to reduce uncertainty in setting a standard of care is to use custom.
B. Over time, there is a trend towards allowing juries to second-guess custom.
Does that ever mean that custom is irrelevant? No. It just doesn’t become
C. Early Cases
a. Titus v. Bradford (Pa. 1890)
i. The railroad company is not liable for negligence because its
actions were common custom within the industry.
ii. Legal Reasoning: “Reasonably safe” means safe according to
the usages, habits, and ordinary risks of the business.
1. Danger does not imply negligence.
2. Courts aren’t in the business to determine level of
appropriate safety. Shouldn’t second guess the
businesses. We must presume that the market is
3. The court also says that the plaintiff assumed the risk.
b. Later cases: people are less willing to believe that the market is
c. Mayhew v. Sullivan Mining Co (Me. 1884)
i. Opposite of the Titus decision.
ii. The trial court judge was not wrong to exclude questions that
would have emphasized custom in mining.
iii. Legal Reasoning: Just because there is a custom, doesn’t mean
that there wasn’t negligence. It would be no excuse for a want
of ordinary care that carelessness was universal.
1. Custom doesn’t dictate because the judiciary doesn’t
defer to industry to define the right level of safety.
2. This is a very extreme case (notion of no deference at all
to custom. It is an outlier).
d. Third Restatement of Torts:
i. Custom is some evidence of a standard of care.
ii. The Restatement looks at it in an asymmetrical way:
1. Shield: If I complied with custom, that is evidence of
non-negligence. It is relevant, but it doesn’t answer the
2. Sword: Your violation of custom is significant evidence,
not just relevant.
a. Why the asymmetry? Shouldn’t it just be
relevant either way?
b. The Restatement is more willing to say that a
violation of custom shows negligence than that
following custom is non-negligence.
c. Custom as a minimum.
e. The T.J. Hooper (1931 and 1932)
i. The barges were required to have effective radio sets to pick
up weather reports.
ii. Court said it was not a custom yet but that doesn’t matter for
the verdict. “A whole calling may have unduly lagged in the
adoption of new and available measures.”
iii. The court has a judicial responsibility to decide what
negligence is. This is not something that we delegate to the
community. When there is a reason to think there is a big
discrepancy between B and PL, we can second-guess custom.
Learned Hand uses the BPL formula arguably to overrule
iv. From TJ Hooper comes an analytical framework that has a lot
of sway today.
v. The TJ Hooper first suggested BPL. But then United States v.
Carroll really applies it. But this is where is starts!
f. Epstein: distinguishes between cases where the plaintiff and
defendant are strangers and when they are not. When they are not
strangers there is more reason to believe that custom has weight.
i. Embedded in this argument is the assumption of risk.
g. Fonda v. St. Paul City Ry (Minn. 1898)
i. Courts shouldn’t hold internal policies (of high standards)
against a company because we want to encourage safety, not
discourage it. If the adoption of such a course is to be used
against him as an admission, he would naturally find it in his
interest not to adopt any rules at all.
D. Medical Custom Cases
a. Custom continues to play a persuasive role.
b. There is something distinct about the medical profession. Not
something that should be based on just BPL. Doctor’s don’t do that, so
the courts are willing to be a little more deferential.
c. Lama v. Boras (1st Cir. 1994)
i. Facts: Herniated disc, no “conservative treatment.”
ii. Experts testified as to custom (should have used conservative
iii. One of the risks that were foreseeable occurred. Therefore,
there was causation.
d. Jones v. Chidester (Pa. 1992)
i. The court set up the “two schools” doctrine:
1. A medical practitioner has an absolute defense to a
claim of negligence when it is determined that the
prescribed treatment or procedure has been approved
by one group of medical experts even though an
alternate school of thought recommends another
approach, or it is agreed among experts that alternative
treatments and practices acceptable. The doctrine is
applicable only where there is more than one method of
accepted treatment or procedure.
2. It is insufficient to show that there exists a “small
minority” of physicians who agree with the defendant’s
questioned practice. Rather, there must be a
considerable number of physicians, recognized and
respected in their field, sufficient to create another
“school of thought.”
ii. Policy rationale for allowing two schools: We need
experimentation in medicine.
e. Hirahara v. Tanaka (1998)
i. Facts: Anesthesia mistake death.
ii. Rule: It is not negligent for a physician, based on the
knowledge that he reasonably possesses at the time, to select a
particular course of treatment among acceptable medical
alternatives. However, it is a breach of duty of care for a
physician to make an erroneous choice if, at the time he made
the choice, he should have had knowledge that it was
f. Helling v. Carey (Wash. 1974)
i. Facts: Glaucoma diagnosed too late but the applicable standard
of professional care did not require pressure tests for patients
under 40, given that glaucoma is rare for patients in that group.
ii. A defendant may still be held liable for medical malpractice
when he follows the medical custom.
iii. Legal Reasoning: small burden. (B < PL)
iv. This case is not used as a role model. It is the posterchild for
why courts should not try to practice medicine. B isn’t just the
test itself; it is also the false positive. Those cases involve more
diagnostics. The court doesn’t actually know how to add up the
g. Brune v. Bellinkoff (Mass. 1968)
i. Facts: Fall due to an excessive dose of pontocaine.
ii. A doctor may be held liable for medical malpractice when he
follows the standard of care in his own city, but not in others
within the country.
iii. Legal Reasoning: The traditional locality rule rightly protected
a jack-of-all trades general practitioner performing difficult
surgery in a small country village. But for today’s high-
powered specialists, the court opted for a national standard.
iv. Why is this case important? It is the key transitional decision
away from the locality rule in determining custom to a
v. Can still have different standards of care based on medical
resources available, but not on location.
h. The role of custom: Custom can be negligence per se, dispositive, or
non-negligence per se.
i. Trend from Titus to Hooper: Custom as dispositive to custom as
E. Statutes & Regulations
a. Statutes are another possible proxy for determining what the
negligence standard is (to what extent does the statute tell us that
there should be a duty and to what extent does the statute define what
b. Private right of action (express or implied right of action): not a
common law action. The statute has a right of action when it intends
to allow people to enforce the statute. This is different from
negligence under the common law.
i. Courts can find implied private rights of action by inferring it.
ii. Courts used to be very willing to find implied private rights of
action. By the end of the 20th century, they are less willing to
c. Historically, if the legislature has spoken, it is dispositive in negligence
cases. But as always, there are qualifications.
d. Osborne v. McMasters (Minn. 1889)
i. Facts: Drugstore clerk sold poison without labeling it as such,
as required by statute. Customer drank it and died.
ii. A party may be held liable for negligence if he broke a statutory
regulation but the right of action did not exist at common law.
iii. Legal Reasoning: The only difference is that in the one case the
measure of legal duty is to be determined upon common-law
principles, while in the others the statute fixes it, so that the
violation of the statute constitutes conclusive evidence of
negligence, or, in other words, negligence per se.
1. The purpose of the statute was to provide certain
information to reduce a certain risk and that was the
very risk that was not reduced. Therefore, negligence
per se. (Or you could interpret the statute broadly and
say that the statute’s purpose was not to cause harm.
Either way, negligence).
e. Restatement of Torts: § 14 Statutory Violations as Negligence Per Se
i. An actor is negligent if, without excuse, the actor violates a
statute that is designed to protect against the type of accident
the actor’s conduct causes, and if the accident victim is within
the class of persons the statute is designed to protect.
f. Restatement of Torts §286:
i. If the plaintiff is in the specific class of persons.
ii. Particular interest.
iii. Kind of harm.
1. If you meet all of these, the court may adopt it as
negligence per se.
g. Stimpson v. Wellington Service Corp. (Mass. 1969)
i. Facts: Defendant drove rig over city streets (without having
obtained a permit) and broke pipes in the plaintiff’s building,
flooding the premises.
ii. A defendant may be held liable for negligence when he
disregarded a statute but the primary purpose of that statute
was not to prevent the harm that he caused.
iii. Legal Reasoning: the statute had a dual purpose. Failure to
apply for a permit meant that the appropriate authority did not
have the opportunity to appraise the risks and probabilities
and to refuse the permit or impose conditions.
h. Gorris v. Scott (England 1874)
i. Facts: Plaintiff shipped sheep with defendant. Defendant failed
to pen them in accordance with statute to prevent contagious
disease. Animals were washed overboard in a storm.
ii. A party should not be held liable for negligence if he
disregarded a statute but the only purpose of the statute was to
protect against a different harm than that which the defendant
i. Kernan v. American Dredging Co. (1958)
i. Contrast to Gorris.
ii. Facts: Seaman died when kerosene lamp ignited vapors. If the
lamp had been mounted at the height required by regulation, it
would not have ignited the vapors. But the regulation was
aimed at the risk of collision, not fire.
iii. A party should be held liable for negligence if he disregarded a
statute but the only purpose of the statute was to prevent
against a different harm than that which the defendant caused.
j. Martin v. Herzog (N.Y. 1920)
i. Facts: Collision between buggy and car. Decedent was driving
the buggy without any lights, in violation of a statute.
ii. If a plaintiff violates a statute, he may be found for contributory
negligence if the breach of statute was a contributing cause.
k. Tedla v. Ellman (N.Y. 1939)
i. Contrast to Martin.
ii. Facts: Plaintiff and her deaf mute brother walked on a highway
after dark. Walked on the wrong side of the street (violated
statute). Hit by a car, hurting plaintiff and killing brother.
iii. The violation of the statute that pedestrians shall keep to the
left of the center line of a highway does not constitute
iv. The court read a customary exception into the rule even
though it is not anywhere within the statute. The court did not
have to do this.
l. Brown v. Shyne (N.Y. 1926)
i. Facts: Plaintiff became paralyzed after chiropractic treatments.
Chiropractor had no license.
ii. The trial court erred in instructing the jury that it can consider
the defendant’s violation of the statute in determining whether
he was negligent.
iii. Rule: If the violation of a statute was the proximate cause of
the plaintiff’s injury, then the plaintiff may recover upon proof
of the violation; if the violation of the statute has no direct
bearing on the injury, proof of the violation becomes
iv. Court says that the purpose was just to register/track
chiropractors. It is a duty you owe to the state, it is not for the
clients to rely upon for quality purposes.
v. Dissent: Since the law did not recognize the defendant as a
physician, the courts should not treat him as such.
m. These days, courts often go to one extreme or the other (Per se
negligence vs. zero evidence of negligence).
n. What about drivers’ licenses?
i. Some cases will sweep broadly (negligence per se if you don’t
have a license). Others will say that we have to look at the
conduct. For violation of the statute, there are penalties. But
that doesn’t necessarily tell us about the conduct in this
ii. Lack of license provides the “but for” analysis but not
necessarily the proximate cause.
o. Klanseck v. Anderson Sales & Service Co. (Mich. 1986)
i. A jury can infer negligence from the violation of a licensing
statute if the violation serves as evidence of inexperience.
p. Ross v. Hartman (D.C. Cir. 1943)
i. Breaks from general principle that proximate cause allows a
defendant to defeat recovery in some instances when the
wrong of a third person “severs” causal connection between
the defendant’s negligence and the plaintiff’s injury.
ii. Facts: Defendant’s agent left car unattended, violating statute.
Thief stole car and negligently ran over the plaintiff.
iii. A defendant should be held liable if his violation of a statute
caused injuries that the statute intended to protect.
iv. Legal Reasoning: The purpose of requiring motor vehicles to be
locked to promote the safety of the public in the streets.
q. Uhr v. East Greenbush Central School District (N.Y. 1999)
i. Represents the modern judicial reluctance to infer private
rights of action from the breach of statutory duties created
under complex administrative schemes.
ii. Scoliosis case.
iii. Test for the availability of a private right of action:
1. Whether the plaintiff is one of the class for whose
particular benefit the statute was enacted;
2. Whether recognition of a private right of action would
promote the legislative purpose; and
3. Whether creation of such a right would be consistent
with the legislative scheme.
iv. The creation of a right of action in this case would not be
consistent with the statute’s legislative scheme because the
statute carries its own potent official enforcement mechanism.
Legislature’s intent was to immunize the school districts.
r. Lucy Webb Hayes v. National Training School (D.C. Cir. 1969)
i. Facts: Decedent killed him by jumping through window shortly
after committed. Regulation prohibited hospitals from keeping
any delirious or maniacal patient in a room not properly
barred or closed.
ii. Violation of the regulation does not imply negligence per se.
Rather, the court should use all relevant evidence.
s. Perry v. SN (Tex. 1998)
i. Facts: Plaintiff suffered child abuse at a school. Defendants
witnessed acts but did not report them, in violation of a statute.
ii. The witnesses should not be held liable for negligence per se
for not reporting the abuse as statute required because it
would impose immense potential liability under an ill-defined
1. To hold the witness liable would be a huge public policy
change that imposes upon people a requirement to act.
It’s not governing their actions. That is the kind of
statement that must be expressed by the government.
Statutes and Regulations: State Tort Liability, Federal Preemption, and the
Supreme Court: Wyeth v. Levine
A. Facts: Levine had migraine. IV push for Phenergan. Leaked into arterial vein.
Arm was amputated.
B. FDA approved the drug and approval includes the label.The label mentioned
the risks associated with contamination of getting into the arterial veins. But
no particular discussion of IV push as opposed to intraveneous
administration in general.
C. Question Presented: Should claims against drug companies for failure to
warn be preempted?
D. Regulatory compliance defense: If a manufacturer can show that it complied
with a federal agency, that evidence can serve to negate negligence.
E. Conflict preemption argument: Compliance with state tort law would have us
make a different label. Federal law doesn’t allow us to change the label.
a. Narrow exceptions: if we have new information.
b. Response: There’s no conflict.
i. It wouldn’t have been a conflict for them to propose a new
ii. Doesn’t have to be based on new information.
iii. There’s nothing impossible about complying with the statute
and paying for the injury that you cause.
F. Frustration argument: Congress set up a scheme which has the FDA decide
what the right label should be. Whether it will allow a particular drug, how
it’s administered, and approve the label’s wording. Drugs have a value and a
risk. The FDA strikes that balance.
iii. Response: No frustration because FDA does not balance. Our
scheme works in harmony with the federal scheme; it is not an
obstacle. Put liability on the drug manufacturers and it will be
an incentive to make labels better.
Proof of Negligence
A. Res Ipsa Loquitur:
a. Doctrine: “The thing speaks for itself.” Res ipsa loquitur is all about
what the plaintiff has to show in order to establish a prima facie case
i. Three tests under the traditional understanding:
1. Evidence that wouldn’t ordinarily occur in the absence
2. Has to be caused by instrumentality within the
defendant’s exclusive control.
3. Must not have occurred through the plaintiff’s voluntary
action or his contributory negligence.
b. Restatement Second of Torts: Res Ipsa Loquitur
i. It may be inferred that harm suffered by the plaintiff is caused
by negligence of the defendant when
1. The event is a kind of which ordinarily does not occur in
the absence of negligence;
2. Other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated
by the evidence; and
3. The indicated negligence is within the scope of the
defendant’s duty to the plaintiff.
c. Restatement Third of Torts: Res Ipsa Loquitur
i. The factfinder may infer that the defendant has been negligent
when the accident causing the plaintiff’s physical harm is a
type of accident that ordinarily happens as a result of the
negligence of a class of actors which the defendant is the
d. Normally, the plaintiff has to show duty, breach of duty, causation, and
injury by a preponderance of the evidence in order to win a
negligence claim. But here, the courts allow the plaintiff to show these
three different things.
i. Res ipsa is not a common doctrine.
ii. Res ipsa is a test of circumstantial evidence. Show negligence
in a situation where a plaintiff can’t normally show negligence.
iii. What may be inferred? Just negligence, not causation.
iv. Policy reasons: There are cases in which the plaintiff cannot
meet the normal elements but there is still negligence. Absence
of ready proof but not an absence of negligence.
v. Traditional approach: focus on exclusivity. Did the defendant
have exclusive control, yes or no? Over time, the courts
realized that exclusivity wasn’t enough. Cases should be
broader than physical control. Some courts abandon it, while
others tease out what they mean by exclusivity. Real control vs.
1. Even when courts shift away from traditional
exclusivity, they still call it exclusive.
vi. Issue: It is hard to define when something would ordinarily not
happen in the absence of negligence.
e. Byrne v. Boadle (England 1863)
i. In a case where a plaintiff walks by a dealer in flour’s residence
and a barrel of flour falls upon him, the plaintiff is not required
to prove that it could not have fallen without negligence.
ii. Res Ipsa Loquitur: the mere fact of the accident having
occurred is evidence of negligence.
iii. Legal Reasoning: A barrel could not have rolled out of the
warehouse without negligence. And the plaintiff cannot show
negligence because all he knew was that a barrel of flour fell on
him. It is just a burden shifting (and lowering) evidentiary
device. We let the plaintiff get to the jury on different kinds of
f. Wakelin v. London & S.W. Ry (1886)
i. Res ipsa loquitur cannot be used to hold that because the man
was hit by a train the railroad must be liable.
g. Larson v. St. Francis (Cal. App. 1948)
i. Res ipsa loquitur should not be applied in order to hold a hotel
liable for negligence when a chair is thrown out of a window
and hits the plaintiff on the day that victory over Japan was
ii. Legal Reasoning: A third party (the guests) performed the
action. It cannot be said that with the hotel using ordinary care
the accident would not have happened.
iii. No notice; no control.
h. Connolly v. Nicollet Hotel (Minn. 1959)
i. Circumstantial evidence should be used to hold a hotel liable
for negligence when a guest throws an object out the window
and injures someone, but the hotel had reason to know that the
guests could cause harm.
ii. The court distinguished Larson as a case with a surprise
celebration. This hotel had notice; therefore it had control. We
can see the court’s expansion of control.
i. Walston v. Lambersten (9th Cir. 1965)
i. Res ipsa loquitur should not be applied when a ship disappears
at sea and plaintiffs suggest that the owner is liable because
the sea contains many hazards. We cannot assume it was the
j. Bauer v. J.H. Transport (7th Cir. 1998)
i. Res ipsa loquitur does not apply when a driver hits another
driver on the wrong side of the road but the weather was
k. Newing v. Cheatham (Cal. 1975)
i. Facts: Plane crash case.
ii. Res ipsa loquitur can be used to direct a verdict for a plaintiff
when the evidence is overwhelming.
l. Miles v. St. Regis Paper Co. (Wash. 1970)
i. An employee can apply res ipsa loquitur when injured or killed
on the job.
m. Benedict v. Eppley Hotel Co. (Nev. 1954)
i. Facts: Defective chair breaks during bingo game.
ii. A court can apply res ipsa loquitur against the owner of a
defective object in a case where a plaintiff uses it properly.
iii. Legal Reasoning: The woman was an invitee. Hotel was
responsible for keeping premise in a reasonably safe condition.
n. McDougal v. Perry (Fla. 1998)
i. The court should apply res ipsa loquitur when a spare tire falls
off a tractor-trailer and causes damage because the tire would
not have fallen had it not been for a failure to exercise
reasonable care by the person who had control of the spare
o. Ybarra v. Spangard (Cal. 1944)
i. Facts: Patient developed paralysis and atrophy of the muscles
around the shoulder after appendectomy.
ii. Res ipsa loquitur can be applied when there are multiple
defendants and multiple instrumentalities.
iii. Rule: Where a plaintiff receives unusual injuries while
unconscious and in the course of medical treatment, all those
defendants who had any control of his body or the
instrumentalities which might have caused the injuries may
properly be called upon to meet the inference of negligence by
giving an explanation of their conduct.
iv. Most expansive interpretation of control (and not one that is
emulated by many courts).
v. The court looks to the purpose of res ipsa, rather than the
letter of the law.
1. Can’t be the plaintiff’s voluntarily or contributory
a. Plaintiff was unconscious.
2. Ordinarily does not happen in the absence of
a. Injury was to a different part of the body than
the surgery was supposed to affect.
3. Defendants’ exclusive control of instrumentality:
a. Court is worried about the conspiracy of silence
and wants the information.
p. What is ordinary?
i. All we need to do is decide that the odds are low that this could
happen without negligence.
ii. OR: What are the odds of this happening with negligence, what
are the odds of this happening without negligence?
q. Historical trends:
i. Starts with something a little more narrow and rigid. Becomes
more expansive over time. The test is also different. It is no
longer about exclusivity; no longer focuses on the defendant’s
ii. General trend in for res ipsa and everywhere else: pushes back
B. Contributory Negligence & Last Clear Chance
a. Contributory negligence is established when the plaintiff has not
taken reasonable care, and in consequence of her default has suffered
injury. At common law the plaintiff’s negligence, if established on the
facts, generally barred her from any recover in ordinary cases, subject
to a number of important exceptions regarding the defendant’s ‘last
clear chance’ to avoid harm, or to his willfulness in causing it.
b. Comparative negligence is a principle that holds that the plaintiff’s
negligence should not typically bar her cause of action, but should
only reduce the amount of damages recoverable.
c. Butterfield v. Forrester (England 1809)
i. A defendant is not liable for negligence for obstructing a road if
the plaintiff could have avoided injury if he had only used
ii. Rule: One person being in fault will not dispense with another’s
using ordinary care for himself.
d. Beems v. Chicago, Rock Island & Peoria RR (Iowa 1882)
i. The intestate was not contributorily negligent for attempting
to uncouple the cars when they were moving too fast.
ii. Legal Reasoning: The train employees did not follow the
plaintiff’s request to slow down. He could determine his
behavior on the assumption that his colleagues wouldn’t be
e. Gyerman v. US Lines Co. (Cal. 1972)
i. Facts: Fishmeal sacks case.
ii. The plaintiff’s failure to use ordinary care for his own
protection was not a legally contributory cause in bring about
iii. Rule: Even if the plaintiff has not used due care in protecting
himself, that contributory negligence must have been a
proximate cause of his injuries in order to bar his cause of
action. The negligent contribution has to be a “substantial
f. In order to figure out whether or not something was reasonable, we
should look at what the plaintiff was trying to accomplish and the
i. Let’s say that the plaintiff was trying to save a baby because he
mistakenly thought the baby was in danger. Could that be
considered contributory negligence if a defendant injured him?
As long as it is a reasonable mistake, our plaintiff would be
g. Plaintiff’s conduct must be negligent and must contribute to the
injury. The hornbook rule for contributory negligence would say: if so,
h. Policy reason: We want the plaintiff to take caution. It may be easy for
the plaintiff to be cautious. It may also be cheaper. Efficiency analysis:
who is the best party to protect the plaintiff?
i. Before comparative negligence, there was tremendous pressure for
courts to say that this is ridiculous. Some statutes are overwhelmingly
trying to have the defendants comply with safety standards. So we can
infer that the legislative standard meant for defendants to comply.
Courts read that these statutes are so important that it gets rid of
i. We saw the courts getting rid of a defense in Hudson v. Craft –
it is so important to stop these boxing matches that we must
get rid of consent.
j. The risks that made the conduct negligent must be the risk that was
realized for there to be contributory negligence. Otherwise we may
have negligence, but not contributory negligence.
k. Contributory negligence is only applicable if the plaintiff’s failure to
exercise due care causes, in whole or in part, the accident, rather than
when it merely exacerbates or enhances the severity of his injuries.
l. LeRoy Fibre:
i. Defendant claimed plaintiff was contributorily negligent for
putting flax close to the railroad. Court says no, it was his
ii. Traditional tort law: obligation that if the fire starts and is
going to a neighbor’s house, the owner puts the fire out if he
can. No obligation to move the flax in the first instance but
once the fire starts, he has an obligation.
iii. Avoidable consequences: take reasonable steps to avoid the
consequences once the fire starts. Matter of degree.
m. It’s one thing for a court to say that a plaintiff has been contributorily
negligent. It’s another to say that plaintiff could have done something
differently that would have reduced the injury. If you start saying that
there’s a general obligation to reduce injuries that they will suffer by
negligence caused by others, it could become intrusive.
n. Last Clear Chance:
i. Defense against contributory negligence: Even if the plaintiff
was contributorily negligent, if the defendant could have
prevent the accident after he knew or should have known, he is
ii. The last clear chance doctrine is an exception to the
contributory negligence rule.
iii. Policy reason: We don’t want to reduce the defendant’s
incentive at this point of imminence.
iv. Beginnings of the comparative negligence doctrine. Courts
make exceptions to this all or nothing rule.
C. Assumption of Risk
a. Assumption of risk asks whether the plaintiff has deliberately and
voluntarily encountered a known risk created by the defendant’s
negligence and, if she has, it holds that she should not be allowed to
recover for the consequent harm.
b. Classic example: employee bargains for more money because of the
c. Assumption of risk is what consent is to intentional torts.
d. Assumption of risk is the flip side of strict liability. It is more like a “no
liability” rule. It makes it hard for the plaintiff to recover.
e. If a plaintiff knowingly chooses to assume risks, if those risks are
realized, even if negligently created, the plaintiff cannot recover for
f. Older cases are very deferential to the marketplace (late 19th and
early 20th century), particularly in employer/employee contexts. At
some point, the law becomes more skeptical of the way the
g. Lamson v. American Axe (Mass. 1900)
i. Facts: Hatchet fell out of rack where employee was working.
ii. The employer is not liable for injuries caused to his employee
when the employee understood the risk and chose to remain in
the employment anyway because he assumed the risk.
iii. This is not “should have known” (as with contributory
negligence) this is actual knowledge. If there is no knowledge,
then there is no assumption of risk.
h. Farwell v. Boston & Worcester R.R. Corp. (1842) – Fellow Servant
i. Facts: Plaintiff lost right hand when another of the defendant’s
servants was negligent.
ii. The railroad is not liable for the negligence of its employee in
an action brought by that employee’s fellow servant.
iii. Rule: The implied contract of the master does not extend to
indemnify the servant against the negligence of anyone but
iv. The Fellow Servant Rule is the harshest assumption of risk
rule. Status as an employee causes you to not be allowed to
recover from the negligence of your fellow employees.
i. Smith v. Baker & Sons (1891)
i. Rule: If a man voluntarily undertakes a risk for a reward which
is adequate to induce him, he shall not, if he suffers from the
risk, have a compensation for which he did not stipulate.
1. Question of bargain.
j. Murphy v. Steeplechase Amusement Co. (NY 1929) – The Floppper
i. An amusement park is not liable for negligence when a person
is injured on a ride where falling is to be expected.
ii. Rule: Volenti non fit injuria. One who takes part in such a sports
accepts the dangers that inhere in it so far as they are obvious
k. Meistrich v. Casino Arena Attractions (NJ 1959)
i. Facts: Plaintiff fell skating on a rink that was too slippery. She
had known that it was too slippery but stayed anyway.
ii. Rule: Distinction between primary and secondary assumption
1. Primary (defendant breached no duty): it is accurate to
say that plaintiff assumed the risk whether or not the
defendant was at fault.
2. Secondary (defendant was negligent): it is incorrect to
say that the plaintiff assumed the risk whether or not
the defendant was at fault. More like contributory
iii. If it doesn’t fall under primary or secondary assumptions than
there is no assumption of risk.
l. Dalury v. S.K.I. Ltd (Vt. 1995)
i. Facts: Injury at Killington. Before the season started, the
plaintiff had purchased a pass and signed a form releasing the
ski area from liability.
ii. If an exculpatory clause violates public policy, the plaintiff is
not prevented from bringing a suit for negligence.
iii. Legal Reasoning:
2. Places responsibility for maintenance of the land on
those who own or control it.
3. A ski area’s own negligence is neither an inherent risk
nor an obvious and necessary one in the sport.
4. Killington can insure itself. Can raise prices and then
people can get compensated.
D. Comparative Negligence
a. The court moves bit by bit to comparative negligence.
b. Li v. Yellow Cab (Cal. 1975)
i. Facts: Both parties were negligent. Car accident.
ii. The California courts get rid of contributory negligence, which
bars all recovery when the plaintiff’s negligent conduct has
contributed as a legal cause in any degree to the harm suffered
by him, and gives over to a system of comparative negligence.
iii. Legal Reasoning:
1. Contributory doctrine fails to distribute responsibility
in proportion to fault.
2. The extent of fault should govern the extent of liability.
3. Juries often do this anyway with contributory
negligence, but since that process is haphazard, it can
only detract from public confidence in the ability of
legal institutions to be just.
c. Problem: It is difficult to determine ratios for comparative negligence.
d. Today, virtually all states have some form of comparative negligence.
e. Last clear chance: An overwhelming majority of cases have followed
Li’s lead in jettisoning the separate last clear chance doctrine.
f. Restatement Third of Torts: §7 Effect of Plaintiff’s Negligence when
Plaintiff Suffers an Indivisible Injury
i. Plaintiff’s negligence that is a legal cause of indivisible injury to
the plaintiff reduces the plaintiff’s recovery in proportion to
the share of responsibility the factfinder assigns to the plaintiff.
A. There are two types of causation: cause-in-fact and proximate cause.
a. Cause-in-fact: But-for causation (the domino effect).
b. Proximate cause: Legal cause.
i. Proximate cause is much more policy driven.
A. To show but-for cause, the plaintiff has to show that the incident wouldn’t
have occurred without the conduct. She has to show with a preponderance of
the evidence what would have happened otherwise. She needed to show that
the defendant’s negligent conduct caused the injury and that the extent of the
injury was caused by this negligence. Over time, you see the courts retreat
from this because if you become concerned that there are too many instances
when plaintiffs are injured and can’t show this, you start to reduce the need
for this proof. Over time, the courts become more willing to speculate. It’s not
a directed verdict, just allowing these cases to go to the jury.
B. Issues: how to deal with uncertainty. To what extent juries and judges should
be allowed to speculate.
C. But-for causation: what would have happened without the conduct. By
definition, that can be very speculative because it didn’t happen that way. As
society became more complicated, it became harder and harder to show this
D. The issues of uncertainty surrounding cause-in-fact tend to arise in two
a. We’re not sure what happened (because of time/space etc).
b. We’re not sure what would have happened in the absence of the
E. Ford v. Triden Fisheries (Mass. 1919)
a. Facts: The decedent fell overboard from his shipping vessel and
b. The defendant is not liable for negligence for not suspending the
rescue boats from the davits.
c. Rule: The negligence must have contributed to the injury.
F. New York Central R.R. v. Grimstad (2nd Cir. 1920)
a. Facts: Man fell overboard. Wife went for safety equipment. He
b. The proximate cause of the decedent’s death was his falling into the
water. On the question of whether a life buoy would have saved him
from drowning, the jury would be left to pure conjecture and
c. This is an example of the traditional approach: the plaintiff loses
because she can’t possibly show by a preponderance of the evidence
that if the negligence hadn’t occurred, the plaintiff would in fact have
G. Kirincich v. Standard Dredging Co. (1940)
a. Facts: Deceased fell off a dredge close to shore and was carried away
by the tide while shipmates tried to save him.
b. The trial judge erred in dismissing the plaintiff’s allegation that
inadequate life-saving equipment contributed to the decedent’s death
because it is a question about which reasonable men might at least
H. Reyes v. Vanguard Steamship (1980)
a. Facts: Drunk decedent jumped off the boat in order to swim to buoy.
Drowned. Coast Guard regulations required a ship to have safety
equipment that this ship did not have.
b. Now the court allows for speculation.
c. Shows how times have changed.
I. Haft v. Lone Palm Tree Hotel (Cal. 1970)
a. Facts: Father and son drowned. Statute required either a lifeguard
present or a sign saying lifeguard was not present. Neither.
b. The burden of proof to show causation should be shifted to the
defendant when the defendant’s own negligence caused the paucity of
c. Legal Reasoning: The evidentiary void in the instant action results
primarily from the defendants’ failure to provide a lifeguard to
observe occurrences within the pool area.
d. Traditional method would have been: no recovery. But the court went
in favor of the plaintiff.
e. Reason: The fact that there’s no evidence is the defendant’s fault.
f. Logical flaw: if they had a sign, the sign wouldn’t have been a witness.
g. This decision makes it easier for the plaintiff to get to the jury.
J. Zuchowicz v. United States (1998)
a. Plaintiff developed primary pulmonary hypertension after a doctor
negligently prescribed an overdose of Danocrine.
b. The overdose was a but-for cause of the decedent’s illness and death.
c. Rule: If (a) a negligent act was deemed wrongful because that act
increased the chances that a particular type of accident would occur,
and (b) a mishap of that very sort did happen, this was enough to
support a finding by the trier of fact that the negligent behavior
caused the harm.
d. Under the traditional perspective, our plaintiff would lose. But the
court says that as long as one of the risks that made the conduct
negligent was that there was an increased risk of PPH, then if the
person gets PPH, the plaintiff is done on her prima facie case. It
doesn’t mean that the plaintiff won, it’s just a burden shift. Now the
defendant has the burden to come back and show that the odds of it
being caused by the negligent dose are not more than the
preponderance of the evidence.
e. One of the reasons why it was negligent to give that overdose was to
prevent this outcome. Therefore, it’s enough to go to the jury.
K. Engberg v. Ford Motor Co. (1973)
a. Facts: plaintiff bought car from defendant.
b. Claim that defendant’s seat belt was of insufficient strength to
withstand the impact of a crash.
c. The court held that the case was properly left for the jury because
defendant could not show that the plaintiff’s version of the case was
contradicted by its undisputed physical evidence.
L. G.E. v. Joiner (Supreme Court 1997) – Rules of evidence and the use of expert
a. Facts: PCBs found in electrical fluid. Electrician (smoker) diagnosed
with lung cancer.
b. The court believed that the testimony of respondent’s experts did not
rise above subjective belief or unsupported speculation.
c. The trial court did not abuse its discretion when it excluded the expert
d. Rule: A court may conclude that there is simply too great an analytic
gap between the data and the opinion proffered.
M. Expert testimony: Originally, courts required the expert to discuss generally
accepted scientific principles. When that was considered to be too
demanding, it became more of a scientifically reliable test. Then the court
went back to being a little more demanding because it was concerned with
N. Herskovits v. Group Health Cooperative (Wash. 1983) – Reduction of chance
of survival case.
a. Plaintiff’s original chance of survival: 39% Because of negligence, his
chance of survival went down to 25%.
b. A patient, with less than a 50 percent chance of survival, has a cause of
action against the hospital and its employees if they are negligent in
diagnosing a lung cancer which reduces his chances of survival by 14
c. The traditional approach: plaintiff would have had to show by a
preponderance of the evidence that negligence caused the injury. We
can’t do that because the injury probably would have occurred
d. Policy question: If we didn’t allow this kind of case, it wouldn’t give
people a good incentive to take optimal care of people when they have
a less than 50% chance of survival.
e. Two ways to read this case:
i. Damages can only be awarded for damages caused by the 14%
ii. Can recover fully as long as you can show that the negligence
caused you to lose a significant chance of survival.
f. Lost Chance Doctrine.
O. Diminished chances of recovery:
a. If a plaintiff was already in such bad shape that he had less than a 50%
chance of recovery before the negligence, under a traditional
approach, there would be no recovery.
b. If, instead, you follow the Herzkovitz notion, damages might be more
P. Fennell v. Southern Maryland Hosp.
a. Traditional approach: If there’s more than 50% chance that the
negligence caused the injury, you get everything. Otherwise, you get
b. Pure probabilistic approach: If you have a 51% chance that negligence
caused the injury, you get 51%. If you show an 80% chance, you can
c. You could also do a hybrid modified: if less than 50%, get a
percentage. If over 50%, get everything.
Cause-in-Fact (Multiple Causes)
A. The problem of multiple causation has increased dramatically with improved
technology and modernization.
B. The test is becoming, now for negligence, whether this is one of the risks that
made the conduct negligent or not.
C. If the court can divide the injury up, it does so for each responsible party.
This is easier to do over space than time. As a general rule for temporal
division, the first party is generally liable for the second. This is in tension
with the “take your victim as you find him” idea.
D. If there is a single injury and it is deemed to be indivisible, then it in most
circumstances for multiple causes, any one responsible party is jointly and
severally liable for the whole injury.
a. If there’s a responsible and a non-responsible party, the plaintiff can
sue both (joint and several liability). The plaintiff can either make one
of them pay, split, or just duke it out themselves.
b. Joint and several liability is a powerful, plaintiff friendly device.
c. The plaintiff has to show that it is an indivisible injury and there’s no
reasonable basis for apportionment.
E. Third Restatement
a. All joint tortfeasors are fully responsible for the undivided
consequences of their own actions.
i. Joint liability is proper when two or more causes act
synergistically so that the combined effect is greater than the
sum of the parts, as when neither of two fires alone is sufficient
to destroy the plaintiff’s property. The rule also covers cases of
over-determined harm. Thus, if three men combine to push a
car over a cliff, then all are liable even if the force applied by an
two would have been sufficient.
ii. Endorses apportionment when there is a “reasonable basis for
the factfinder to determine the amount of damages separately
caused” by each party.
F. Second Restatement: Apportionment of Damages
a. §443(a) Apportionment of harm to causes.
i. Damages for harm are to be apportioned among two or more
1. There are distinct harms, or
2. There is a reasonable basis for determining the
contribution of each cause to a single harm.
G. Summers v. Tice (Cal. 1948)
a. Only one caused the main injury, we don’t know which. This case is
precedentially significant, because the court says that they are jointly
and severally liable even one was in fact not the cause of the main
b. Justification: they were both negligent and we have no basis for
choosing which one did it. It would be unfair to plaintiff to let them
both off the hook. Ordinarily, the defendants will have more
information to determine which one did it than the plaintiffs.
c. Rule: It has been held that where a group of persons are on a hunting
party, or otherwise engaged in the use of firearms, and two of them
are negligent in firing in the direction of a third person who is injured
thereby, both of those so firing are liable for the injury suffered by the
third person, although the negligence of only one of them could have
caused the injury.
H. Restatement (Second) of Torts: Alternative Liability Theory.
a. Where the conduct of two or more actors is tortious, and it is proved
that harm has been caused to the plaintiff only by one of them, but
there is uncertainty as to which one has caused it, the burden is upon
each such actor to prove that he has not caused the harm. The theory
of alternative liability dictates that tortfeasors who act in concert will
be held jointly and severally liable for the plaintiff’s injury unless
tortfeasors are able to prove that they have not caused the harm.
I. Sindell v. Abbott Labs (Cal. 1980)
a. Sindell introduced the theory of market share liability for DES.
b. Measures the likelihood that any of the defendants supplied the
product which allegedly injured the plaintiff by the percentage of their
c. The traditional approach would be to walk way because the plaintiff
can’t know which company caused the injury.
d. This is market share liability, not joint and several liability. Can’t sue
any one of them for the whole thing, just for their market share.
e. Problems: different amounts of drugs in the different pills and we
don’t know which size she took. Could those companies that didn’t
make that size get off the hook? If the pills were being used for
multiple things, how do we define the market/percentages? What
about where the mother took the pills? Should we do it by locality or
nationwide? What about time? Companies come in and out of the
market all the time.
i. Almost no one emulates the Sindell court!
J. Skipworth v. Lead Industries Ass’n (Pa. 1997)
a. The court does not adopt the market share liability theory in the
context of lead poisoning cases.
b. Rule: Market share liability is appropriate where the following factors
i. All named defendants are potential tortfeasors.
ii. Fungible products.
iii. Plaintiff is unable to identify which defendant caused her
injury through no fault of her own.
iv. Substantially all of the manufacturers which created the
defective products during the relevant time are named as
c. Distinguishes itself from Sindell
A. But-for cause is retrospective while proximate cause can be prospective or
B. For proximate cause, we assume cause-in-fact. But even if you have cause-in-
fact, it may not be enough to hold a defendant liable. There could be a policy
reason why we don’t want to make him pay for the consequences.
a. If it’s too remote, not a natural cause, too removed in time and space.
b. If it was not a substantial factor in causing the injury. (Retrospective)
c. If it was not foreseeable. Looking at the time they were negligent, was
this one of the things (what actually happened) what made the
conduct negligent? If not, we’re probably not going to say that it was
the proximate cause. (Prospective).
C. Some say that this doesn’t make sense to talk about proximate cause in terms
of causation. We already asked the causation question with but-for cause.
This is another kind of policy determination. It’s really a question of whether
or not there was a duty.
D. The earliest tests: the defendant was held liable only when he was the “last
wrongdoer” whose conduct contributed to the loss.
E. Traditionally, an intentional intervening cause always cuts things off.
F. When as a factual matter do we think that things have stabilized? As long as
things have been jumbled up by an accident, courts tend to be very forgiving
in saying that’s one of the risks that made your conduct negligent.
G. Early common law cases took a much harder line toward the spread of fire
(refusing to call it proximate cause) than the later cases.
H. Ryan v. New York Central R.R. (1866)
a. Facts: Defendant’s negligence caused a fire on their property which
spread to other houses, including the plaintiff’s home which burned
i. No question of negligence.
ii. No question of cause-in-fact.
b. If the fire communicates from the house of A to that of B, and B is
destroyed, the negligent party is not liable for his loss.
c. The immediate result was the destruction of his own property.
Beyond that the damages were too remote.
d. Rule: Every person is liable for the consequences of the proximate
results of his own acts, but not for remote damages.
e. But it was natural and expected. The court’s concern is not that this
never happens; the court’s concern is that it happens a lot and we
need to cut it off so there won’t be excessive liability. Also, if we held
the defendant liable for all the damage, he’s insuring all of his
neighbors when they can also have fire insurance.
I. Smith v. London (1870)
a. A contemporary English contrast to Ryan.
b. Facts: A spark from defendant’s engine started a fire in the grass. The
flames spread and consumed plaintiff’s cottage.
c. The railroad is liable to the homeowner for its fire spreading to his
d. Legal Reasoning: The mere fact of the distance of this cottage from
where the fire broke out does not affect the liability.
J. City of Lincoln (1889)
a. Facts: Plaintiff’s vessel collided with City of London because of the
b. Rule: Damage is the proximate cause of the negligent act when the
damage is such a consequence as in the ordinary course of things
would flow from the act, including human contact.
K. Jones v. Boyce (England 1816)
a. Facts: Plaintiff jumped from defendant’s coach when it went out of
b. The plaintiff may recover damages for his broken leg, even though he
would not have been injured had he not jumped.
c. Rule: It is not necessary that he should have been thrown off the
coach; it is sufficient if he was placed by the misconduct of the
defendant in such a situation as obliged him to adopt the alternative
of a dangerous leap, or to remain at certain peril.
L. Tuttle v. Atlantic City R.R. (NJ 1901)
a. Rule: If a defendant, by negligence, puts the plaintiff under a
reasonable apprehension of personal physical injury, and the plaintiff,
in a reasonable effort to escape, sustains physical injury, a right of
action arises to recover for the physical injury and the mental
disorder naturally incident to its occurrence.
b. If the plaintiff acts in good faith to minimize the risk of loss from a
dangerous situation of the defendant’s making, then those actions do
not generally sever causal connection.
M. Mauney v. Gulf Refining Co. (Miss. 1942) – Foresight Limitation
a. Facts: Plaintiff tripped over chair when warned that defendant’s truck
was likely to explode.
b. The plaintiff may not recover for injuries she sustained while escaping
potential harm caused by another.
c. Legal Reasoning: It would impose an inadmissible burden upon
N. Berry v. Sugar Notch Borough (Pa. 1899)
a. Facts: Plaintiff was speeding; tree fell on car.
b. The plaintiff’s violation of the speeding limit does not preclude his
right to recover damages for negligence because the speed did not
contribute to the accident. It was a coincidence, and a thing which no
foresight could have predicted.
i. One of the risks that makes speeding negligent is not the
chance that a tree will fall on top of you.
O. Central of Georgia Ry. V. Price (Ga. 1898)
a. Facts: Railroad did not drop plaintiff at station. Walked her to hotel.
Burned by kerosene lamp at the hotel.
b. The railroad is not liable for injuries sustained at the hotel.
c. Legal Reasoning: Negligence of the railroad was not the natural and
proximate cause of the injury. There was the interposition of a
separate, independent agency.
i. It was a but-for cause, but not a proximate cause because the
risk that makes the train missing the woman’s stop negligent is
not because a kerosene lamp might explode. This is similar
logic to the Berry case.
P. Hines v. Garrett (Va. 1921)
a. The railroad is liable for negligently causing the plaintiff to walk home
at night during which time she was raped on two separate occasions.
b. Legal Reasoning: There is a general proposition that no responsibility
for a wrong attaches whenever an independent act of a third person
intervenes between the negligence complained of and the injury. But
this proposition does not apply where the very negligence alleged
consists of exposing the injured part to the act causing the injury.
Q. Pittsburg Reduction Co. v. Horton (Ark. 1908)
a. Dynamite cap case.
b. Rule: Where defendant’s active force has come to rest in a position of
apparent safety, the court will follow it no longer; if some new force
later combines with this condition to create harm, the result is remote
from the defendant’s act.
R. Brower v. New York Central (NJ 1918)
a. Facts: Collision, thieves stole goods.
b. The plaintiff may recover the value of the stolen goods even though
the thieves stole the goods; it was not caused by the defendant’s
c. Rule: The act of a third person intervening and contributing a
condition necessary to the injurious effect of the original negligence,
will not excuse the first wrongdoer, if such act ought to have been
S. Watson v. Kentucky (Ky. 1910)
a. Facts: Tank car containing gasoline derailed through defendant’s
negligence. As gas leaked, a man threw a match on it, starting a fire.
b. Holding: The jury should decide whether the man had acted
maliciously or negligently.
c. Rule: The mere fact that the concurrent cause or intervening act was
unforeseen will not relieve the defendant guilty of the primary
negligence from liability, but if the intervening agency is something so
unexpected or extraordinary as that he could not or ought not to have
anticipated it, he will not be liable and certainly he is not bound to
anticipate the criminal acts of others.
T. Atherton v. Devine (Okla. 1979)
a. Facts: Car accident. Second accident once in ambulance which
aggravated the original injuries.
b. The first collision was a “substantial factor” in causing the subsequent
injury, so the harm was not too remote to hold the original defendant
liable for negligence. The use of the ambulance was necessitated by
the tortfeasor’s wrong.
c. Third party negligence: If the first party is negligent and causes injury,
he could be liable for the negligence of the second part that, because
of the first injury, further negligently injures that person.
U. Second Restatement: The defendant should be held liable precisely because
the third party exploited the dangerous condition created by the defendant.
V. Bigbee v. Pacific telephone and Telegraph Co. (Cal. 1983)
a. Facts: Plaintiff trapped in a phone booth near major thoroughfare. Hit
by a drunk driver.
b. The defendant is liable for the placement and maintenance of the
c. Legal Reasoning: It is of no consequence that the harm to the plaintiff
came about because of the negligence or reckless acts of the driver.
W. Britton v. Wooten (Ky. 1991)
a. Facts: Arson in grocery store trashcan that was stacked negligently
with excessive amounts of flammable trash.
b. The defendant’s negligence is not precluded by the arsonist’s crime.
c. Legal Reasoning: Court rejects any all-inclusive general rule that
criminal acts of third parties relieve the original negligent party from
X. Bell v. Board of Education (NY 1998)
a. Facts: School accidentally left sixth grader behind after drug-
awareness fair. Raped on way back.
b. The intervening act of rape was not unforeseeable and so the school is
Y. The early common law cases treated suicide as an intervening cause. Modern
cases usually allow the question of whether the plaintiff’s state of mind was
caused in part by the defendant, to go to the jury.
Z. Wagner v. International Ry. (NY 1921)
a. It is foreseeable that “duty invites rescue.”
AA. Rescue Doctrine:
a. Restatement: Any unreasonable rescue efforts by plaintiff should be
covered by comparative negligence and not the doctrine of
More Proximate Cause
A. In re Polemis (England 1921)
a. Facts: Heavy plank fell into the hold in which the petrol was stowed in
a ship, and caused an explosion, which set fire to the vessel and
completely destroyed her.
i. The harm was not foreseeable.
b. The fact that the harm was unforeseeable does not preclude the
defendant from paying damages.
c. If it be determined to be negligent, then the question whether
particular damages are recoverable depends only on the answer to
the question are they the direct consequence of the act – it is not
d. There needed only to be foreseeability that there would be some
e. With respect to deciding whether someone is negligent, you take into
account foreseeability of harm. Then foreseeability is very relevant.
Once we establish negligence, however, it is completely irrelevant.
B. Palsgraf v. Long Island RR (NY 1928)
a. The railroad is not liable for negligently helping a man onto the
b. Legal Reasoning:
i. Cardozo says that the train employees had no duty towards
ii. This is not a causation question at all, it’s a breach question.
iii. Negligence is not in the air. There may be intentional torts in
the air, but not negligence. When it comes to negligence, there
has to be in the first instance a duty between this defendant
and that plaintiff.
c. Rule: For an act to be negligent, the plaintiff must show that it is “a
wrong” to herself – a violation of her own right and not merely a
wrong to someone else.
d. Andrews’ Dissent:
i. Doesn’t matter that the consequences are unforeseeable. Duty
is in the air. We have a duty to society at large.
ii. We can use the “substantial factor” test to guide us.
C. Marshall v. Nugent (1955)
a. Rule: The proximate cause of an injury need not have been the most
immediate cause. A defendant may still be liable even if acts occurred
in between the negligence and the injury if the defendant’s negligence
created the risk that continuously led to the subsequent injury.
(Situation had not yet become normal).
D. Wagon Mount No. 1 (1961)
a. Facts: Negligent oil spill. Carried by wind to harbor. Fire.
b. The defendant’s negligence is judged by reasonable forseeability (not
direct consequences). Therefore, no liability.
c. Rule: It is not the hindsight of a fool; it is the foresight of the
reasonable man which alone can determine responsibility.
d. Your negligence is determined by foreseeableality (same as Polemis).
But unlike Polemis, the court requires that the consequences have to
foreseeable for damages as well.
i. In Polemis you just need to foresee some harm, while in Wagon
1 you need to foresee everything.
e. Problem: Harsh on victims because they are not negligent.
E. Wagon Mount 2
a. Ship owner is the plaintiff.
b. Court says: proximate cause.
F. Polemis, Palsgraf, Wagon Mount
a. Three very different approaches.
b. Tort law mixes them ultimately together.
c. Andrew’ substantial factor analysis is always used now and is
embodied in the Restatement: (Looking at foreseeability, time, and
space. Ultimately putting them together and asking if reasonable
people would say “cause.”)
G. Kinsman: how courts view proximate cause today:
a. The original negligence of not tying up the ship was the proximate
cause to the final injury of flooding.
b. Friendly describes that what made the conduct negligent was the risk
that the ship would get loose and exactly what happened was the
result of a ship breaking loose and being uncontrolled. We don’t have
to say exactly the kind of damage that will result.
Proximate Cause and Emotional Distress
A. Debate in society has been: to what extent do we create it if at all? Starts out
negative, moves seemingly to more positive, and then pushes back.
B. Early opposition to allowing recovery for negligently inflicted emotional
distress: damages were too “remote” and the fear that allowing emotional
distress claims would lead to a flood of fabricated claims. But whenever the
plaintiff showed an actual impact, the courts were more willing to allow for
C. Mitchell v. Rochester Railway (NY 1896)
a. Facts: Horses ran up to the plaintiff. Fear caused a consequent illness.
b. The plaintiff is not entitled to recover for the defendant’s negligence
which occasioned her fright and alarm, thereby resulting in a
c. Legal Reasoning: It would lead to a flood of litigation, where the injury
complained of may be easily feigned.
d. Rule: No recovery can be had for injuries sustained by fright
occasioned by the negligence of another, where there is no immediate
e. If you have a physical injury which causes fright then you can recover.
But you cannot recover for fright which causes physical injury.
i. This is the traditional approach.
D. Dulieu v. White & Sons (KB 1901)
a. There are two different ways that physicality has to fit. Fright can be
the basis but:
i. The person has to be in the zone of danger.
1. Fright only when caused by fear of bodily injury.
ii. Fright is caused by physical injury.
E. Dillon v. Legg (Cal. 1968)
a. Facts: Mother saw child get hit by a car while crossing the street. The
b. The mother may recover for emotional and physical injuries caused
by watching her child get killed, even though she was not within the
“zone of danger” because Dulieu is not persuasive.
c. Legal Reasoning: This shows the artificiality of the zone of danger
rule. The woman’s other daughter would have been able to recover,
but not the mother.
i. We’d just be using a proxy which has nothing to do with the
injury. (Like how the mustard didn’t really cause the real injury
in Betty England’s case – zone of impact).
d. Rule: A plaintiff may recover for emotional distress if there was no
contributory negligence, the defendant breached his duty to the
plaintiff, and the plaintiff’s injuries were reasonably foreseeable.
F. Tobin v. Grossman (NY 1969)
a. Facts: Mother heard her son’s car accident.
b. The plaintiff may not recover for physical injuries caused by shock
G. Elden v. Sheldon (Cal. 1988)
a. Court denied claims for the negligent infliction of emotional distress
to an unmarried cohabitant involved in an automobile accident –
because she was not closely related to the man.
H. Thing v. La Chusa (Cal. 1989)
a. Rule: In the absence of physical injury or impact to the plaintiff
himself, damages for emotional distress should be recoverable only if
i. Is closely related to the injury victim;
ii. Is present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the
iii. As a result suffers emotional distress beyond that which would
be anticipated in a disinterested witness.
I. Trombetta v. Conkling (NY 1993)
a. Recovery of damages by bystanders for the negligent infliction of
emotional distress should be limited only to the immediate family.
J. Dunphy v. Gregor (NJ 1994)
a. Allowed action to an unmarried cohabitant.
K. Norfolk & Western Railway Company v. Freeman Ayers (2003)
a. When the cause of asbestosis, in whole or in part, was exposure to
asbestos while on the job, the worker’s recovery for his asbestosis-
related “pain and suffering” may include damages for fear of
b. Rule: The plaintiffs may recover emotional distress damages when the
fear of future injury stems from a current injury. But the complainant
must prove that the fear is genuine and serious.
c. Allowed to recover for reasonable fear of cancer because it’s parasitic
to the physical injury.
i. But, it doesn’t actually cause the cancer. It’s just evidence of
ii. Dissent’s policy concern: concerned about a race to the
courthouse. Fear of cancer is going to precede the actual cancer
and what if the fear plaintiffs use the money before those who
get cancer but didn’t sue for the fear?
L. To apply the foreseeability test for negligent infliction of emotional distress
of a bystander, there are no rigid rules, but there are guideposts:
a. Plaintiff has to be located at the scene.
b. Emotional distress has to be contemporaneous with observation.
c. The plaintiff has to be closely related to the victim.
d. Also, the distress has to be serious.
M. Tort law might also not want to give monetary compensation for emotional
distress because there’s really no compensation.
N. The cases like Dulieu and Dillon (that want to allow negligent infliction of
emotional distress damages) challenge the causation rhetoric.
O. Return of limiting liability by introducing duty into the analysis. No general
overall duty not to do negligent conduct that causes someone emotional
P. Negligent Infliction of Emotional Distress is allowed when:
a. Parasitic Injury: If it causes somebody a physical injury then you can
recover for the emotional distress injury associated with the physical
b. When you feel emotional distress because of fear of physical contact
(Zone of Danger). If you’re outside the zone, for many jurisdictions, no
c. Some jurisdictions say that if you’re not in the zone but you’re right
there and you have the contemporaneous observance and you an
immediate family member and you suffer serious emotional distress,
you can recover.
Q. Proximate Cause conclusions:
a. One of the risks that make conduct negligent has to be one of the risks
that was realized.
i. Dilemma: how does one define the test?
1. Polemis: light approach.
2. Cardozo: tougher approach.
3. Wagon Mount: toughest approach.
ii. Danger invites rescue.
iii. Thin Skull Victim: take your victim as you find him. If he suffers
far more consequences than anyone could reasonably foresee,
you are still liable for the consequences.
A. Traditional theory: There is generally no duty to act. If there is no action,
then there’s no liability.
a. Ploof v. Putnam: The defendant untied the boat. If he had just refused
to help there would be no liability.
b. Why? Autonomy.
1. If you place a person in peril.
2. If you begin to help someone you can then assume the
duty to continue to act.
3. Relationship between a defendant and plaintiff could
create a duty.
4. Special relationship between defendant and a third
party could create a duty.
Duty to Rescue & Duties of Owners and Occupiers
a. Defendant taunts decedent to jump in water, fails to warn him that it
was deep, made no effort to rescue him.
b. No affirmative duty to rescue because did not push him…
B. Buch v. Amory Manufacturing Co. (NH 1897)
a. The defendant is not liable to the child who trespassed in the mill, did
not understand the defendant’s warning, and badly injured himself.
b. Rule: An owner is not required by law to protect a trespasser from
c. Buch is an example of no duty even though there is foreseeability.
C. Hurley v. Eddingfield (Ind. 1901)
a. Rule: Physicians are not required by law to enter into contracts of
employment, even if it could save a sick man’s life.
D. Montgomery v. National Convoy & Trucking Co. (S.C. 1937) – icy highway
a. Rule: One may be negligent by acts of omission as well as of
commission, and liability therefore will attach if the act of omission of
a duty owed another, under the circumstances, is the direct,
proximate and efficient cause of the injury.
b. Through his non-negligent conduct, the defendant has helped to
create the dangerous situation.
c. It was foreseeable.
E. Zelenko v. Gimbel Bros. (1935) – sick in store
a. Rule: If a defendant intervenes, even if under no duty to undertake the
task, the defendant must not omit to do what an ordinary man would
do in performing the task.
F. Soldano v. O’Daniels (1983)
a. Facts: Decedent in danger of being shot. Other patron went across the
street to call 911. Bartender refused to allow him to call or to call
b. Rule: Restatement (Second) §327 renders any person who “knows or
has reason to know that a third person is giving or is ready to give
another aid necessary to prevent physical harm” tortiously liable if he
“negligently prevents of disables the third person from giving such
G. Traditional duty categories when people are on one’s land:
a. Trespassers: No permission.
i. Owe them nothing.
b. Licensees: With permission but short of the status of invitee. (Social
i. Don’t owe them more than you owe yourself but don’t conceal
dangers (must warn).
c. Invitees: Permission but in the interests of the landowner (often
i. General negligence requirement for the general state of the
premises. Keep them reasonably safe.
H. Traditional duty categories begin to break down. Property is no longer
viewed as completely sacrosanct.
I. Rowland v. Christian (Cal. 1968)
a. Facts: Broken water faucet injured guest.
b. The defendant is not barred from liability for injury caused by a
known, but not obvious condition in her home, just because the
plaintiff was a social guest.
c. Legal Reasoning: Common law distinctions based upon the status of
the injured party as a trespasser, licensee, or invitee create confusion
and whatever historical justifications there once were don’t apply
d. Rule: Where the occupier of land is aware of a concealed condition
involving in the absence of precautions an unreasonable risk of harm
to those coming in contact with it and is aware that a person on the
premises is about to come in contact with it, the trier of fact can
reasonably conclude that a failure to warn or to repair the condition
constitutes negligence. Whether or not a guest has a right to expect
that his host will remedy dangerous conditions on his account, he
should reasonably be entitled to rely upon a warning of the dangerous
condition so that he, like the host, will be in a position to take special
precautions when he comes in contact with it.
i. A warning allows someone to decide whether or not to assume
the risk. Similar to primary assumption of risk.
e. Considerations that we should be balancing:
i. Foreseeability of harm to plaintiff
ii. Degree of certainty that the plaintiff suffered injury
iii. The closeness of the connection between defendant’s conduct
and the injury suffered
iv. Moral blame attached to defendant’s conduct
v. Policy of preventing future harm
vi. Extent of burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach
vii. The availability, cost, and prevalence of insurance for the risk
J. Pridgen v. Boston Housing Authority (Mass. 1974)
a. Child trapped in elevator shaft case.
b. The court says that even though the child is a trespasser, the
defendant has a duty to help him. Under the traditional approach, he
would not owe the child any duty.
A. Special relationships can exist for negligent infliction of emotional distress.
a. Discrete pockets, not a general tort of negligent infliction of emotional
B. Restatement (Second) of Torts §315
a. There is no duty so to control the conduct of a third person as to
prevent him from causing physical harm to another unless
i. A special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third
person’s conduct, or
ii. A special relation exists between the actor and the other which
gives the other a right to protection.
C. Kline v. 1500 Massachusetts Ave (D.C. Cir. 1970)
a. A duty is placed on a landlord to take steps to protect tenants from
foreseeable criminal acts committed by third parties.
b. Rule: Since the ability of one of the parties to provide for his
protection has been limited in some way by his submission to the
control of the other, a duty should be imposed upon the one
possessing control (and thus the power to act) to take reasonable
precautions to protect the other one from assaults by third parties
which, at least, could reasonably have been anticipated. However,
there is no liability normally imposed upon the one having the power
to act if the violence is sudden and unexpected provided that the
source of the violence is not an employee of the one in control.
c. The traditional tort approach would have said no duty because of a
supervening, intervening cause. It was a third party that conducted
the criminal act.
d. Needed to use a reasonable standard of care.
e. Just because the landlord didn’t reduce the level of crime, doesn’t
mean that he was the but-for cause. However, part of his negligence
was that he didn’t have someone there to witness the attack. Then we
would know. Therefore, this is the landlord’s burden to prove. Also,
the plaintiff doesn’t have to show a preponderance of the evidence to
get to the jury. She just has to show that the injury that occurred was
the risk that the duty was supposed to prevent.
D. Tarasoff v. Regents of University of California (Cal. 1976)
a. The defendant had a duty to warn the decedent of her danger and/or
a duty to bring about the killer’s confinement.
b. Rule: Once a therapist does in fact determine, or under applicable
professional standards reasonably should have determined, that a
patient poses serious danger of violence to others, he bears a duty to
exercise reasonable care to protect the foreseeable victim of that
danger. While the discharge of this duty of due care will necessarily
vary with the facts of each case, in each instance the adequacy of the
therapist’s conduct must be measured against the traditional
negligence standard of the rendition of reasonable care under the
E. Thompson v. County of Almeda (Cal. 1980)
a. Facts: Troubled boy warned that he would kill a child in the
neighborhood (not specific) if released. When released, killed him.
b. The defendant did not have a duty to warn.
c. The warnings would have had to be broad in nature because no
d. Dissent: Could have told the boy’s mother.
F. Lundgren v. Fultz (Minn. 1984)
a. Duties are especially strict on defendants whose steps facilitate
attacks by persons within their care on innocent plaintiffs.
G. J.S. and M.S., H.W. v. R.T.H. and R.G.H. (1997)
a. Rule: If a wife has reason to believe that her husband is sexually
abusing the children next door, she has a duty to take reasonable
steps to prevent foreseeable harm under the circumstances.
b. Foreseeability is necessary but not sufficient to create a duty.
STRICT LIABILITY REVISITED
A. Strict liability vs. negligence:
a. Strict liability: You are liable even if you acted with due care.
b. Negligence: Only liable if you fail to exercise due care. Need
reasonable care under the circumstances.
B. Strict Liability
a. Causation: Does there have to be but-for causation? Proximate cause?
Yes. But-for causation same kind of inquiries as before. Proximate
cause: is one of the risks that made the conduct subject to strict
liability something that was realized? If yes, subject to the standard.
Otherwise, ask whether strict liability is appropriate or not. For all of
these issues where we ask that question, we have to ask how precise
we want to make that match be.
b. Contributory negligence: generally not a defense under the
Restatement for strict liability. It is not obvious why and plenty of
jurisdictions do not follow this.
c. Assumption of risk: generally a defense according to the Restatement.
d. Comparative negligence: what to do with strict liability in a
comparative negligence regime? We don’t’ have a common
denominator because it’s not relevant if the defendant is negligent or
e. The Restatement suggests that if something is caused by an
abnormally sensitive reaction, then maybe can get out of strict
C. Gehrts v. Batteen (2001)
a. Rule: Owners of domesticated animals may be held liable for harm
caused by their pets if the owner knows or has reason to know that
the animal has abnormally dangerous propensities. This is not strict
liability. This is negligence. The ordinary negligence standard of
foreseeability still applies.
b. Application: There was no evidence that the dog had any dangerous
propensities. There was no evidence that the defendant had violated
the reasonable person standard of care.
D. Indiana Harbor Belt RR v. American Cyanamid Co. (1990)
a. Rule: If strict liability would not create any more incentive to find
safer ways of working than a negligence standard, it doesn’t make
sense to broaden strict liability.
b. Negligence regime is adequate to remedy and deter, at reasonable
cost, the accidental spillage of the chemical from rail cars.
c. This case is evidence of the greater willingness of the courts now to
handle cases through negligence.
d. BPL: Should focus on the P. If you can reduce the Probability through
non-negligence, then it doesn’t warrant strict liability.
E. Siegler v. Kuhlman (1972)
a. Strict liability applies when gasoline is transported on a public
highway because the potential hazards are almost beyond calculation.
b. Unlike Posner, this court looks at the L factor in BPL.
F. Strict liability for owning animals:
a. If the animal is wild, use a strict liability standard.
b. If the animal is domesticated, the owner has to know or have reason
to know that the animal has a propensity for violence. If so, strict
liability. If not, negligence standard.
i. “One Bite Rule.”
G. General tests for strict liability:
a. Restatement (Second) §519
i. Abnormally dangerous activity which causes harm.
ii. No way to prevent harm that is within the possibility of risks
that makes the activity abnormally dangerous.
b. Restatement (Second) §520
i. The risk (probability) of harm was great.
ii. The harm that would ensue if the risk materialized could be
iii. Such accidents could not be prevented in the exercise of due
iv. Activity was not a matter of common usage.
v. Activity was inappropriate to the place in which it took place.
vi. Value to the community of the activity did not appear to be
great enough to offset the unavoidable risks.
1. This last factor was taken out in the Third Restatement.