TORTS FALL 2008

   A. Prima facie case for intentional torts:
         a. Intent
                 i. Desire/purpose
                ii. [OR] Knowledge with substantial certainty
         b. Causation
         c. Injury

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
                      intent either.
          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
             was voluntary.
          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
                             consequence; or,
                          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
             pops out.
                  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
             hand smoke.
         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
            so verbally.
        c. The physician is not liable because the plaintiff consented non-
            verbally. (Implied-in-fact).
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
                    implied consent.
                        1. Assumption that the plaintiff, as a rational agency,
                            would have consented to the operation if she could have
                            been asked.
        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
                    the risk.
Nonconsenual Defenses
  A. Insanity
        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
B. Self-Defense
       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
                  misplaced self-defense.
             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.
              v. Conclusions:
                       1. An innocent bystander injured during self-defense
                          cannot recover.
                       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.
D. Necessity
      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
                     known risk).
          c. Last clear chance.

  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.
Offensive Battery
   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
             with it.
         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.
False Imprisonment
   A. Elements:
         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
               false imprisonment.
   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. Elements:
           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
   immediate family).
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).

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
              negligence theory.
   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,
               and desire.
           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
                there’s negligence.
   I.   Holmes:
            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.
  C. Negligence:
          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
              plaintiff’s injuries.
          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
            policy questions.
                 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. Injury
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
                    person’s standard.
                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
            certain exceptions).
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
            adult activity.
        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?
H.   Restatements:
        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
            of negligence.
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
        c. Test:
                  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
                             bodily movement?
                         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
            commit suicide.

          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
                      (principal object).
                 iii. A person who takes a risk of injuring the principal object
                      usually does so because he is pursuing some object of his own.
                      (Collateral object).

             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
                          expected gain.
      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
          not exist.
      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
             necessarily working.
         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
                   nationwide standard.
               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
          it is?)
       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
                   find it.
       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.
        iv. Hazard.
                  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
          contributory negligence.
     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
              of negligence.
                   i. Three tests under the traditional understanding:
                          1. Evidence that wouldn’t ordinarily occur in the absence
                             of negligence.
                          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
           relevant member.
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.
           nominal control.
               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
            defendant’s fault.
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.
             vi. Factors:
                      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
                  and forth.
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
             ordinary care.
         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
             his harm.
        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
     surrounding context.
          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,
     no recovery.
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
         contributory negligence.
               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
   his/her injury.
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
   marketplace works.
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
            and necessary.
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
            of risk:

                     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:
                     1. Invitee.
                     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
       without speculation.
   D. The issues of uncertainty surrounding cause-in-fact tend to arise in two
       primary circumstances:
           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
               defendant’s conduct.
   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
               been saved.

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
            anyway (death).
       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
              recover 80%.
           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
                  causes where
                      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
               are present:
                    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
Proximate Cause
   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
               down completely.
                    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
             latter’s negligence.
         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
            superseding cause.
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
            about foreseeability.
         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
            moving train.
         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
      emotional distress.
   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
              consequent illness.
          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
              personal injury.

         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
            child died.
         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
            the plaintiff:
                  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
                     victim; and
                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
          developing cancer.
       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
                  increased risk.
              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
          such liability.
       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.
                 i. Exceptions:
                         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. Yania:
         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
          pecuniary interest).
               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.
Special Relationships
   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
                specific target.
             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.

   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.


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