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					Intentionally Inflicted Harms
   I)     Elements generally: (1) intentional (2) invasion of (3) protected interest (4) which is not consented
          to (5) and is not privileged
   II)    Battery – Intentional infliction of harmful or offensive touching
          A) Intent
                     a) It does not matter that D does not intend to harm P
                     b) D only has to intend to wrongly invade P’s bodily integrity
                           i)      D is liable for damages no matter intent or foreseeability. Eggshell P rule.
                           ii)     This can even occur in cases where no touching occurs (Garret v. Dailey; the
                                   ground was the batterer, but the boy had substantial certainty that the ground
                                   would hurt the woman).
                           iii)    Intent to do an act that causes invasion may be enough if there was
                                   “substantial certainty” that invasion would occur->High likelihood is not
                           iv)     In theory, P does not need to be aware of the battery (Sleeping kisses as
                     c) If the touching is only offensive (objective standard), D must have intended the act
                           i)      This exists to differentiate Vosburg playground situations from truly
                                   egregious acts.
                           ii)     The spitting incident in Alcorn v. Mitchell. It’s very contextually oriented as
                                   it must constitute unreasonable touching under the circumstances.
          B) Invasion
                     a) Importance of context. In certain situations, a certain invasion of protected interest is
                        expected or tolerated (Vosburg on the playground)
                           i)      Vosburg v. Putney: If the touching in that case occurred on the playground, it
                                   would be OK, b/c that is what could be expected on the playground
          C) Defenses - Consent
                     a) Express -> P specifically consents to the battery
                           i)      Can be direct or circumstantial
                           ii)     Subjective (what person though) or objective (what a reasonable person would
                                   think in the situation)
                           iii)    This often comes up in medical cases
                                   a. Mohr v. Williams -> MDs cannot do anything to the patient without
                                       consent, unless patient has specifically consented to it.
                                   b. Canterbury v. Spence; no consent in this case, even though patient agreed
                                       to surgery because there was not full disclosure of risks
                                            i. This is one of those rare cases in which the court second guesses
                                               expressed consent.
                     b) Implied – Proven by Objective Manifestations
                           i)      Vosburg on the playground
                           ii)     Sports injuries->Maxim Volenti non fit Injuria
                                   a. However, actors are liable if the actions occur outside the rules of the
                                   b. Recklessness standard: An actor recklessly causes harm if the actor knows
                                       of the risk of harm created by his conduct.
                                            i. Players are liable for injury in a tort action if his conduct is such
                                               that it is either deliberate, willful or with reckless disregard
                           iii)    Actions may indicate consent to invasion, even if subjective thoughts may not.
                                   (O’Brien – Woman who puts her hand forward to get the vaccination)
                     iv)    Emergency Situations. If it were an emergency, consent would not be
                            required b/c it’s assumed a reasonable person would consent.
                c) Lack of capacity->Consent is implied by law (emergency situations)
                d) Other consensual defense issues
                     i)     Consent in not always dispositive. Where a criminal statute is designed to
                            protect P’s well-being, consent will not bar a tort suit
                            a. Hudson v. Craft; boxing promoters still held liable for boxer’s injuries
                                even though they consented to it. No consent because boxer did not fully
                                comprehend the actions and the promoters conducted an illegal activity
                                (the activating force).
       D) Non-consensual Defenses
                a) Insanity -> Insanity is normally not a defense
                     i)     Insane people are liable so long as they can form intent, even if they do not
                            understand that they are causing harm (McGuire v. Almy)
                     ii)    Insane people are not liable only if they are not in control of their actions
                b) Self-Defense
                     i)     Reasonable belief that one’s safety is in danger. D may use such reasonable
                            force as he reasonably believes to be necessary for his protection
                     ii)    Only the degree of force necessary to prevent the harm may be used
                     iii)   Subjectively believed he was under attack and objectively that belief was
                     iv)    The courts are divided on a duty to retreat
                c) Defense of Property-> D may use reasonable force to protect property
                     i)     Key issue is how much force can you use to remove someone from your
                            a. Use proportional force to repel an invasion of property, if the invasion
                                itself is made with force
                            b. In someone just steps foot on your property, you first have to ask him to
                                leave or gently touch the person (molitor manus)
                            c. Then if the person won’t leave, you can use force and battery is justified
                            d. M’Ilvoy v. Cockran; actual force (force in law) v. constructive force
                                (implied). You can commit a battery, but not a wounding.
                                     i. Only justified in wounding if your life is in danger
                     ii)    Not liable for serious bodily harm if the person would have been privileged to
                            commit battery had he been present. Battery by proxy.
                            a. Bird v. Holbrook; Spring gun case. D can’t use spring gun because he did
                                not give notice. Intent was to injure, not just to defend property.
                            b. Had D been there, he would not have been able to wound, just to apply
                                constructive force.
                d) Recapture of Chattels
                     i)     May use reasonable force to reclaim immediate possession of chattels taken
                            by force, fraud or without the right of claim
                     ii)    Owner must be in “hot pursuit” of his property
                     iii)   Initial dispossession must be wrongful (Kirby v. Foster)
                            a. No defense for battery if D gave P the money (not taken unlawfully).
III)   Trespass
       A) Three kinds on invasions of a person’s property interest
                a) D intentionally enters P’s land without permission
                b) D remains on P’s land without the right to be there, even if she entered rightfully
                c) D puts an object on P’s land without permission
       B) Defense - Consent
      C) Defense - Necessity. Person using necessity must show that there was no other way in which
          life and property could be saved
                a) Saving of a life justifies the invasion of property (Ploof)
                      i)      Necessity may be an excuse for trespass, but one is still liable for damages
                              incurred during a necessary action.
                              a. In Vincent, the ship owner still must pay damages, because he made a
                                  conscious effort to save his property.
                                       i. He could not leave b/c of the storm and there was no explicit
                                          contract (if there was, it would have included higher rates to
                                          account for potential damages)
                              b. Why didn’t D pay for the benefit of the ship being saved?
                      ii)     Bargaining in necessity arrangements, leads to bi-lateral monopoly
                              a. Large price discrepancies, as the two parties have radically different
                                  bargaining prices..
IV)   Assault
      A) Intent to put someone in apprehension of imminent danger of battery and/or actual
          imminent danger of battery
                a) Assault is the apprehension of being touched; not the apprehension of being harmed
                      i)      Intent to create apprehension
                      ii)     Intent to make contact
                      iii)    Thus in Vosburg, there was no assault, but there was a battery because
                              Vosburg did not see it coming.
                b) Conditional assaults (“If it were Tuesday, I would hit you”) are not assaults, because D
                    specifically said he would not harm P (Tuberville v. Savage)
                c) Context is important – “Mere words usually do not constitute an assault”
                d) Must be accompanied by gesture
                e) P must be aware of the threatened contact
      B) Consent is a defense – Haunted House
V)    False Imprisonment – Restraint by force or threats
      A) D must have intended to confine P or known with substantial certainty that D’s actions would
          confine P
      B) The invasion is the intention invasion of a person’s right to freedom of movement.
                a) P must be contained by force of intimidation
                b) A reasonable opportunity to escape precludes false imprisonment,
                c) P must be aware of being falsely imprisoned.
                d) Interference with particular movements is not enough
                      i)      Bird v. Jones; not false imprisonment b/c the P had the freedom to move
                              elsewhere (although the dissent notes that it is a public way and he shouldn’t
                              have to move in an one direction)
      C) Defenses – Reasonable detention to recapture chattels
                a) Shopkeepers Privilege (Coblyn v. Kennedy)
                      i)      Shopkeeper has the privilege to detain people reasonable suspecting of
                              stealing (objective test)
VI)   Intentional Infliction of Emotional Distress
      A) IIED through extreme and outrageous conduct, even in the absence of physical harm
                a) D must desire to cause P emotional distress
                b) D must know with substantial certainty that P will suffer emotional distress
                c) D must recklessly disregard the high probability that emotional distress will occur.
      B) What is extreme/outrageous?
                   a) Wilkinson v. Downton; behavior in this case was outrageous, because it would be
                      expected that someone would be very upset if they found out their loved one had passed
                      away; this was reasonably expected to cause harm
                   b) Again, the context is very important
                        i)     P.F case is based upon intent to create emotional distress without consent (the
                               example of consent would be going to a haunted house). P must also show
                               that there was an injury.
                        ii)    The defense is consent or privilege .

Negligence and Strict Liability
General Outline:
DUTY: Did the defendant owe P a duty?
BREACH: Did D’s conduct fall below the applicable standard of care?
CAUSATION: Was D’s failure causally connected to P’s harm?
DAMAGES: Did P suffer harm?

   I)     Early Cases
          A) NEGLIGENCE: D’s conduct imposes an unreasonable risk upon another, thus invading an
             interest and breaching their duty to protect others from harm
          B) STRICT LIABILITY: D is liable regardless of fault
          C) Early common law cases-> SL
                    a) Thorns. If D intends to go on property, he is liable for damage despite defenses like no
                        intent to cause damage (Vosburg) and recapture of chattels.
                    b) Even if you act reasonably or even if you commit a good deed, you still are strictly
                        liable for damages that could occur. Tithe Case
                    c) Fletcher v. Rylands->foundation for ultrahazardous strict liability
                          1. Martin argues that making the pond is not a nuisance of itself and P must show it
                              was negligently built
                          2. Bramwell and Cairns import Strict liability.
                                  a. The act is not wrongful (b/c it’s on D’s property), but D is still liable no
                                      matter intent.
                                  b. If you bring something non-natural onto the land, you must pay the
                          3. Owner brings thing onto his property at this own peril, particularly if it is likely to
                              cause mischief
          D) Liable for all damages that result from an act, even under duress.
          E) Exceptions to Strict Liability in Weaver
                    a) P’s Fault
                    b) Act of God
                    c) Someone forces you to act (i.e., someone takes your hand and batters someone else)
   II)    Development of the OBJECTIVE STANDARD
          A) What if the battery was unintentional and D used ordinary care? Is this enough to stave off
          B) Ordinary care falls under the objective test and is the kind and degree of care a prudent and
             cautious man would use given the circumstances. Brown v. Kendall
          C) Why unreasonable risk standard?
                    a) Rejection of Rylands, because it doesn’t pay attention to whom it actually at fault.
                          1. How far is the chain of events that gives rise to a result (prox cause)?
                          2. Where do you draw the line for when SL can no longer be extended
                    b) In a complex modern society, holding everything to SL would bog down the courts.
                        Brown v. Collins
                        1. Instead, P must show that D’s conduct imposed an unreasonable risk of harm onto
                        2. Courts balance whether the risk is so large as to outweigh the utility of the act
III) Reasonable man standard
       A) In cases where the cause of actions is indirect (consequential damages). Prudent man standard;
          the objective test. What characteristics must we take into account? Vaughan v. Menlove
       B) Would a “reasonable person of ordinary prudence” in the same circumstances and with the same
          knowledge as D, have done the same thing as D?
                 a) Not a subjective measure of belief
       C) Physical and mental characteristics: Reasonable person standard can change depending on the
          type of person.
                 a) Physical disability: If D has a physical disability (blindness), the standard for
                      negligence is what a reasonable person with that physical disability would have done
                 b) Mental Characteristics: The ordinary reasonable person is not considered from the
                      particular mental characteristics of D. There is no reasonable stupid person standard
                 c) Intoxication is not a defense
                 d) Wealth is not a defense
                 e) Children are slightly different
                        1. Usually they are held to a reasonable kid standard
                        2. However, if a child engages in a potentially dangerous activity normally pursued
                            only by adults, she will be held to the standard of care that a reasonable adult
                            doing that activity would exercise
IV)    Foreseeable harms
    A) Duty to prevent accidents that are reasonable foreseeable (ordinarily careful). No need to protect
       against risks that are extremely small. Bolton v. Stone (Cricket ball)
          a. Take into account size of potential harm
          b. Probability of harm coming about
                    i. Burden on P to show that the size of harm is great and likelihood of occurrence was
                   ii. Cost of precautions
                            1. In a SL rule, D will pay as soon as the injury is caused.
                            2. Ho=10% chance of ball causing $1000 damages. Preventative measure costs
                                $200/yr to maintain.
                                             i. Will fence be built under neg rules? No. Harm is less than
                                            ii. Will fence be built under SL rules? No, cheaper to pay
                                           iii. The difference is allocational. Under Neg, damagee is out
                                                $100, under SL, damager is out $100
                            3. If the price is higher and utility (subjective value) of goods if higher, there
                                will be some negotiation to even out the costs of precautions
                  iii. Coase Thm. When values shift, parties will negotiate to reach an outcome that
                        reflects greater values for each party.
V)     Calculating Risk
       A) Hand’s Formula. There’s negligence if adequate precautions were not taken to avoid injury.
                 a) B=Cost of preventing Harm
                 b) P=Probability of Harm actually occurring
                 c) L = Damages from Harm
                 d) Where B<P*L, the D should take all measure to prevent damages from occurring
                      (negligence), but where B is greater it exceeds what a reasonable person would do.
      B) B can be direct (building the fence) or indirect costs (foregoing other benefits).
                a) Under which – SL or neg – will people be more careful? (See printouts)
                       1. The answer is that they will both exert the same level of carefulness, as they move
                           towards B* - the point where decreasing marginal benefits meets costs
                       2. However, there are different administrative costs involved and different allocation
      C) Negligence is the omission to do something that a reasonable man, guided upon those
         considerations which ordinarily regulate the conduct of human affairs would do, or doing
         something that a prudent and reasonable man would not do.
                a) Party is only responsible for those things that it can reasonably foresee. Blyth (ice on
                     the plugs case)
                b) The emergency element adds a new twist;
                       1. If D is confronted with an emergency and is forced to act with little time for
                           reflection, D is only held to the standard to act as a reasonable person would if
                           confronted with the same emergency, not as a reasonable person with plenty of
                           time to think. Eckert v. LIRR
      D) Standard of negligence.
                a) The negligence must be the cause of the harm and the person harmed must be within
                     the D’s “sphere of negligence”
                       1. If D hits a golf ball and hits someone, he is liable
                       2. If D hits a golf ball which hits some geese which attack P, he is not liable,
                           because it is not foreseeable
                       3. But if D hits a golf ball and it hits someone outside the course, there is no liability
                           because the duty is only to the person on the course
                b) Harm alone is not enough to show negligence (except in res ipsa cases).
                c) Avoidable harm is not enough.
      E) No actor has a duty to take ALL steps to prevent an injury. Sometimes precautions can create
         further problems for society
                a) Then, one is balancing two types of expected harms on the basis of probability and
                     magnitude of those harms. Balancing of societal interests; Osborne v. Montgomery;
                     Cooley v. Public Service Co. (phone line falling).
VI)   Custom-> Acts as evidence, but it is not dispositive
      A) In general, “standard” practice can serve as a defense to negligence.
                a) If it is an industry custom to do something in a certain way and it is reasonable
                     according the an ordinarily prudent person, P can not recover. Titus
                b) Custom is evidence, but isn’t dispositive
      B) Where D shows that everyone else in the industry does things the way D did them, the jury is
         still free to conclude that the industry custom is unreasonably dangerous and thus negligent (T.J.
                a) Even if there is custom present, the custom may not make sense and may still be
                       1. “A whole industry may have unduly lagged in the adoption of new and available
                           devices” and the whole industry could be negligent
                       2. It is up to the court to decide whether custom is relevant
                b) Conversely, proof offered by P that others in D’s industry followed a certain precaution
                     that D did not will be suggestive, but not dispositive evidence of D’s negligence.
      C) There are exceptions to this rule
                a) Custom does not have to matter if the custom is so dangerous that it should not be
                b) Even if no other company acts in a certain way, it can still be negligence if it defies a
                     reasonable standard of care. Mayhew.
       D) Exception->Medical malpractice.
                a) In medical malpractice cases, custom is dispositive. The test for negligence is what is
                    standard medical practice.
                      1. This is dependent upon medical professional’s opinion
                              a. Members of conflicting schools of medical thought are judged by
                                  reference to that school.
                      2. Basically, the court has allowed medical professionals an exception because they
                          know their industry the best. It is more efficient to allow experts to establish their
                          own rules of behavior.
                      3. It’s generally difficult to show that a certain treatment leads to a certain result, so
                          custom becomes much more of a defense. Lama v. Borras
                b) Lack of Unified standard of care
                      1. Locality Rules
                      2. Courts in general have recently recognized a national standard of care
                              a. However, in practice there is a locality rule, which takes into account
                                  poorer standards of care in places like inner cities and rural areas that do
                                  not have the same facilities.
                              b. Doctors in rural areas tended to fare well in negligence trials, because
                                  rural populations do not want to punish the few doctors that come there
       E) Monopolized Industries. There is a danger of game playing in which industries with a small
          number of players will intentionally set the bar low to reduce liability
                a) This is particularly important when an industry may not absorb all the pressures of an
                b) Custom can sometimes represent a lower standard than a neutral standard embodied by
                      1. Use of custom depends on who wants to use the custom (P or D)
VII)   Statutes
       A) The majority rule is that Violation of a statute is per se negligence, however it depends on the
          statutory construction and interpretation. Osborne
                a) The Yellow lights example. What if statute required that lights were on and the lights
                    were yellow, causing another driver to have a fit. D is not liable in this case, because
                    the statute does not require to have any specific color lights
                b) The statue will be evidence of negligence per se when:
                      1. P shows that he is a member of the class of persons the statute is designed to
                      2. The statute protects against a particular type of harm suffered by P.
       B) Statutes can serve various roles as different types of evidence, depending on the district
                a) They can be negligence per se (Martin v. Herzog). Violation of the statute is
                    negligence it self
                b) Violation of the statute can be P.F. evidence of neg. (Brown v. Stone). Violation is
                    enough to substantiate the case, but more proof is needed.
                c) Statutory violation can be some evidence of neg, but not enough to satisfy P’s burden.
                    Ross. Dram Cases (serving alcohol to drunk people)
                d) No negligence.

VIII) Proof of negligence
      A) Judges or Juries
               a) Holmes believes that the determination of what is negligence should be taken out of the
                  hands of the jury
                    1. Judges have more relevant experience
                     2. Judgment should lead to bright line rules, not variable, constantly changing rules.
                b) Stop-Look-Listen cases contradict this (Baltimore, Pakora, Jewel). In train hitting car
                   cases, it’s not that stop,look listen is irrelevant, it’s just not dispositive.
                     1. The courts should be in the position to lay down standards once and for all.
                c) However, Cardozo argued that the jury is a better body to determine what exactly is
                   reasonable in extraordinary situations
        B) Burdens
                a) P has the burden to produce evidence that D was negligent and P suffered an injury
                b) P has the burden to persuade the trier of fact that the harms more likely than not came
                   from D’s negligence

  IX)   Res Ipsa Loquitor – The Thing Speaks For Itself
        A) Used to prove negligence using circumstantial evidence where there are not sufficient facts to
           conclusively prove negligence
        B) Often used in cases in which D has all the evidence or there are problems of proving negligence,
           because of a lack of evidence
                a) Res Ipsa Loquitor ->The presence of the injury constitutes negligence itself, because
                    there is no way the injury could occur except for negligence (RST § 328)
                      1. There is not direct evidence of how D behaved
                      2. Event is of a kind that does not occur without negligence
                      3. Injury caused by agency or instrumentality in exclusive control of D
                b) P did not voluntarily contribute to the situation that gave rise to the injury.
                      1. Even in cases where D is not directly responsible for the literal action that caused
                          injury, but the injury could not have occurred but for Negligence of D. Byrne
                      2. RIL operates at the P.F. level of negligence evidence
                              a. Circumstantial evidence of their injury.
                              b. It allows P to meet the burden of production
                c) RIL interacts with custom in medical care cases.
                      1. Even though complications occur all the time from surgery, certain types of
                          complications not associated with that particular type of surgery are indicative of
                          negligence. The type of injury speaks of negligence. (Ybarra).
                      2. Smoking Out Doctrine-> It forces Ds who control all the information and get the
                          facts out about exactly who was negligent.
                              a. Breaks the conspiracy of silence. In the presence of RIL, parties tend to
                                  blame each other and P wins.
                d) RIL can also be applied in cases where the duty is firmly in the control of D, either
                    because it is has the power or the duty it has is non-delegable. (Carmones)


  X)    Contributory Negligence – Under common law, no recovery when plaintiff’s actions contributed
        proximately to the harm
        A) This looks at P’s conduct. A person cannot act without ordinary care and still claim damages for
           the harm suffered.
                 a) Contributory actions, like going to fast down the road, can bar P’s ability to recover
                 b) However, an act of God can not bar P’s recovery, because it is not contributory
                     negligence. (Beems – foot getting caught in rails as the reason why there can be no
        B) P must contribute to the harm,
                a) CN is invoked if P breaches a duty of self-protection, by continuing to work or act in
                     unsafe environments.
                       1. Similar to an assumption of risk argument
                       2. Gyerman and the fish sacks. P should have complained to his supervisor and then
                           not done the work
                b) The whole point of CN is to get Ps to act safely and provide an incentive for them not
                     to cause injury to themselves
       C) Tension between certain rights, like right to property, and CN
                a) Every man has a right to property, so long as the property does not affect another
                b) LeRoy Fibre. Was P CN by keeping flax to close to the RR? What if the train that
                     spewed sparks was running without negligence?
                       1. Holding: the owner has the right to put the flax wherever he wants and the RR is
                           liable if it catches fire
                       2. The result will be that the RR will negotiate with the farmer either to move the
                           flax or to obtain a right of easement, which ever will be cheaper.
                       3. Important variables are the likelihood of harm, the damages and the cost to
                           prevent the harm.
       D) P’s Negligence does not cause injury, but contributes to harm-> NOT A DEFENSE
                a) In general, seat belt defenses implying CN don’t work. Derheim
                b) The reason is that the negligence happens before the act and does not causally link to
                     the accident itself, only to the damages that result.
                a) Last Clear Chance->D was the last person to be able to avoid the harm
                b) The classic example is the train heading towards the man negligently not paying
                     attention (Fuller v. Ill RR).
                       1. D is still liable because it has the last chance to avoid the accident
                       2. D appreciates P’s negligence and has a reasonable opportunity to avoid the
XI)    Imputed negligence
       A) Variation of vicarious liability,
       B) In this instance, the servants (or passengers) are liable for the negligence of the master (Example
          in Thorogood: P can not recover because he was a passenger on D’s bus and thus is negligent in
          trusting the conveyance).
                a) The majority rule rejects imputed contributory negligence . Can’t pass down negligence
                     of master to servants, even if servants are being negligent. (Mills)
                b) The reason is that the master or conveyor or drive is best able to afford paying for
                     damages and it gives them an incentive to act more carefully
                       1. Least cost risk avoider has the liability.
       C) However, this will work if there would be a defense under vicarious liability, to avoid a one-way

XII)   Assumption of risk->You assume a risk and you are barred from recovery for harm resulting
       from that risk.
               a) Implied Assumption-> P knew of the risk and voluntarily consented to bear that risk
                     1. Occurs in the work place when one has complained about dangerous practices,
                        but still continues to work there (Lamson)
                            a. Fellow Servant Rule
                                     i. When you work, you assume the risk that the guy next to you may
                                        have no idea what he is doing. Corporation is not held liable for
                                        certain torts of fellow workers.
                             b. This rule has pretty much disappeared, because it’s difficult for people to
                                 just up and leave their job if they don’t like the risks
                                      i. Companies will move towards B* because they have an interest in
                                         maintaining a healthy labor force.
                                     ii. They do not want their employees to suddenly leave because of
                                         dangerous conditions, particularly in a tight labor market
                     2. Also occurs in sports, recreation, etc. If you understand the warnings and risks,
                         and still undertake the activity, you are liable. Cardozo does give exceptions
                         however: (Flopper)
                             a. Danger is unobserved or obscured.
                             b. The act that caused the injury was aberrational or not in the normal
                                 operation of things
                     3. Occurs when the harm is too great, as in industrial accident cases
                b) Express Assumption->There is agreement, knowledge or expectation that standard of
                   care of defendant will be lower than usual.
                c) The General Exceptions
                     1. Risk assumed must be thing that causes the harm
                     2. Consequences of incident were not foreseeable to P
                     3. Resulting damage is aberrational
                     4. Potential damages are too great or dangerous for someone to assume the risk
                     5. The risk must be explicitly assumed
                             a. Law won’t allow people to sign away their rights to a trial (Obstetrics v.
                                      i. Informed consent is required (You have to shake the person and
                                         tell them how important the thing they are signing is.)
                                     ii. Uninformed consent can stem from
                                              C- Procedural problems: Hi pressure sales tactics
                                              D- Substantive: Fridge only worth $200, sold for $500
                             b. Procedural problems such as adhesion contracts can relieve P from the
                                 assumption of risk (Duress)
                d) Two types of assumption of risk
                             a. Primary: D is not negligent, he assumed the risk. This is Vosburg on the
                             b. Secondary: D is negligent, but P is barred because he assumed the risk

XIII) Comparative Negligence – Division of liability between P and D in proportion to their relative
      degrees of fault
      A) Comparative negligence came to be because:
               a) There seems something inherently unfair about “all-or-nothing” contributory
                   negligence rule
               b) It’s a better philosophical fit in terms of corrective justice – FAIRNESS
               c) Juries tend to do it anyway
                     1. They weigh in their minds P’s behavior and it tends to reflect on the damages
      B) There are two forms of comparative negligence
               a) The Li court adopts the Pure standard which discounts P’s damages by the percentage
                   of fault attributed to P
               b) The second form, the 50% system, is the minority rule
                     1. Apportionment up to the point where P’s negligence is >50% of the cause of the
                     2. The problem with this is that it gets back to the problems of CN.
       C) Comparative negligence affects some of the principles that determine negligence in the first
                a) Last Clear Chance – This no longer exists with comparative negligence since it was a
                   defense to Ps under CN.
                b) Assumption of Risk – Depends on the division between primary and secondary
                     1. Primary assumption of risk – The defendant has not breached a legal duty of care
                        to P, so there is no occasion for invoking comparative fault principles
                     2. Secondary assumption of risk – D has breached a duty of care owed to P.
                        Comparative fault principles preclude automatically placing the loss on the P, so
                        it is swallowed up
                c) Willful misconduct – No clear majority rule
                             a. It possibly should not apply, because there a different level of
                                intentionality if required

XIV) Joint, Several and Vicarious Liability
     A) Joint Liability. Joint tort-feasors are jointly liable can be responsible for the entire loss
              a) The common law rule was that if A can recover in tort against two defendants and
                 recover damages from one, that one cannot recover against the other.
                    1. In general, the P could recover from either
              b) When there’s two concurrent causes of a harm, either one is considered sufficient to
                 have caused the harm.
                    1. Each concurring event is a cause in fact of the injury. Kingston
                    2. However, this rule only occurs when each fire was set by human agents and they
                       are roughly the same size
                            a. If one fire is man-made and one caused by lightning, no recovery
                            b. If there are two man-made fires and one is a conflagration, while the other
                                is tiny, the larger one is the cause.
                    3. RST §433A: Damages for harm are apportioned among two or more causes where
                       (a) there are distinct harms or (b) there is a reasonable basis for determining the
                       constribution of each cause to a single harm
              c) Burden of showing cause of harm
                    1. The P just has to show that each of two Ds were at fault and both are held for full
                       damages, because otherwise both would be exonerated from liability. Summers
                    2. The burden is on D to show that the other cause the harm.
              d) Market Share Theory – The idea that each defendant is liable to the class of P indicated
                 for the share of the market each D holds
                    1. This argument only works when the products are identical (they share the same
                       defects); P cannot tell which product caused her injury; and all the manufacturers
                       which created the product in the time period are named as Ds. Sindell, Skipworth
                    2. These cases are incredibly difficult to prove and the majority rule rejects it.
     B) Several liability means that each defendant responsible for only his proportionate share of the
              a) However, this only comes into play if the court can determine with certainty that d1 is
                 responsible for X amount of damages and D2 is responsible for Y amount of damages.
              b) If you can’t divide you don’t->Joint Liability
     C) Vicarious Liability – In general, for anything an employee does in the scope of employment,
        the employer is liable
              a) Respondeat Superior Doctrine
              b) This includes intentional torts (racial animus, sexual harassment) and even crimes
              c) The activity undertaken by the employee must be something the employee would
                 foreseeably do in the scope of employment
                         1. It is unimportant that the precise action of the employee is not foreseen, so long as
                             the action in general is foreseeable. Bushey – Drunk seaman
                     d) No liability for independent contractors

  I)   In general, once the P has shown that D had a duty and D breached that duty, it is necessary to link
       the action to the harm.
       a. “Cause in fact” – D’s conduct caused P’s injury
       b. Proximate cause – When are harms attributable to the defendant whose own actions combined
           with those of other persons and natural events?
  II)  Cause in Fact
       a. “But-for” Test: But for D’s actions, would P have been injured. Had D not acted negligently, P
           would not have been injured
                i. The burden is on P to show that more likely than not D’s actions caused the harm to P.
               ii. P does not have to show specifically that the harm resulted from D’s negligence, just that
                    it was more likely than not (This is res ipsa like). Zuchowicz.
       b. If D’s conduct has increase the risk that P will suffer some damage, but that damage has not
           occurred, most courts will deny P the recovery unless P can show that it is more likely than not
           that the damage will occur eventually.
       c. Scientific/Expert data. There has to be a clear link between the harm and the injury, and some
           courts have taken scientific evidence to task for failing to make the connection
                i. Just because test animals develop a certain harm (link between chemical and cancer in
                    Joiner), does not mean it spreads to humans
               ii. Only accepted methodologies will do.
       d. Lost Chance Doctrine: If the harm reduced P’s chances of survival due to a previous harm (but
           for D’s actions, P would have had a 31% chance to live, not is only 14%, P can recover
                i. Traditionally, P could not recover if there was already a <50% chance, but in modern
                    courts P will recover the damages, like loss of income, discounted by the chance that D’s
                    breach would cause the injury
  III) Proximate Cause: Two key issues – 1) Directness/Remoteness; 2) Foreseeability of harm
       a. In general-> Even if P shows that D is the cause in fact, P must still how that D was the
           proximate cause of the injuries.
                i. D should not be liable for all consequences of actions, especially if those are very
               ii. D must be the immediate cause of harm with no intervening causes or factors.
       b. Directness: Recovery limited only to those harms that were the ordinary and natural result of
           the initial negligence (Ryan).
                i. D’s train engine sets fire to its own wood shed which in turns spreads to P’s house, thus
                    destroying it. No recovery for P because harm is too remote
       c. Foreseeable consequences. In general, D is liable for only those consequences of his
           negligence which were reasonably foreseeable at the time of the action
       d. Foreseeable Plaintiff. D is also only liable for damages to foreseeable plaintiffs
                i. To whom does D have a duty ? If D’s conduct is negligent to X, but not negligent to P, P
                    will not be able to recover, even if he is injured. (Palsgraf)
               ii. D is not liable to the unforeseeable plaintiff, because relative to that person there is not
                        1. RST §281: If the actor’s conduct creates a recognizable risk of harm only to a
                            particular class of person, the fact that it causes harm to a different class does not
                            render the actor liable.
               2. However, the D remains liable for full consequences of negligent act when the
                    intervening force is one which a reasonable man would have foreseen as likely to
                    occur under the circumstances. (Marshall v. Nugent)
      iii. The Andrews dissent is also important: Proof of negligence in the air…will not do.”
               1. Due care is a duty imposed on each one of us to protect society from unnecessary
                    danger, not to protect A,B or C alone. “Radius of Danger.”
               2. §431: Actor’s neg conduct is a legal cause of harm if his conduct is a substantial
                    factor in bringing about the harm – SUBSTANTIAL AND DIRECT.
      iv. The tricky and unresolved issue is when there is an unforeseeable plaintiff and an
           unforeseeable consequence.
e. Exceptions to foreseeability.
        i. Extensive consequences from physical injuries – Egg shell rule
               1. Once P suffers any foreseeable injury, D is liable for all additional unforeseen
                    consequences (assuming there is no intervening cause, like medical malpractice)
               2. You take your P as you find him
       ii. General class of harm, but not the same manner
               1. If the harm suffered by P is of the same general sort that made D’s contract
                    negligent, it is irrelevant that this harm occurred in an unusual manner.
      iii. Plaintiff is part of foreseeable class
               1. The fact that injury to a particular plaintiff was not especially foreseeable is
                    irrevelant, so long as the P is a member of a class as to which there was a general
                    foreseeability of harm.
               2. Kinsman No.1 – It is unimportant that the exact injured parties could not be
                    identified before, because the harm threatened the general population.
f. Intervening Causes-> Some intervening causes are sufficient to prevent D from being held
   liable for P’s injuries.
        i. Foreseeability-> If the possibility of the intervening cause or the cause of harm was
           foreseeable, D’s conduct will be the proximate cause (It does not have to be both)
               1. This relates to the negligence of third persons (If it’s foreseeable)
                                 i. P dropped off at wrong train station, stays in hotel, hotel catches on
                                     fire-> RR not liable b/c it was not foreseeable (Central GA. RR)
                                ii. P dropped off at wrong train station and forced to walk where she
                                     was raped-> RR liable, b/c it was foreseeable (Hines v. Garratt)
               2. Criminal or tortious act.
       ii. Altering of risk profile: D is liable for increasing the risk that a third party will take
           advantage of a situation only if the risk is foreseen
                        a. Acts of third parties tend to be superceding causes of harm that let off the
                            D unless the actor realized or should have realized that the harm would
                            create an opportunity for third parties to act tortiously
                        b. A RR company is liable for stolen goods, when it hits a cart, knocking out
                            the owner and third parties steal the goods, because it had reason to know
                            this could happen. Brower
               2. Danger invites rescue. Wagner.
      iii. Probability is also important: D is more likely to be liable if his negligence leads to an
           increased risk. If his negligence does not lead to increase risk, no liability, even if
           negligence was a but-for cause of damages
      iv. The competing theory is “direct causation:” Liability is imposed for any harm that
           directly resulted from D’s negligence no matter how unforeseeable.
               1. In re Polemis (Ds were unloading ship and dropped a plank which in turn cause a
                    spark which ignited petroleum in the ship’s hold and destroyed the ship.
       v. This theory was overturned in Wagon Mound, because it could result in limitless liability
                        1. D is liable to P only for the anticipated property damages of oil contamination
                        2. But, D is not liable for unanticipated damages, like the petroleum igniting,
                            because it had a reasonable belief that it would not ignite
               vi. However, if an unforeseeable intervening cause leads to the same type of harm as that
                    threatened by D, the intervening cause does not break the chain of causation.
          g. Emotional Distress
                 i. Under common law, there was no recovery for emotional distress, unless D had a duty to
                    prevent injuries and there emotional distress was coupled with physical injury caused by
                        1. Damages were considered to be too remote
                        2. There was a fear of fraud because it was so hard to prove.
                ii. Then courts moved to a Zone of Danger rule – Person must be in the zone of danger to
                    have an infliction of emotional distress
                               a. The exception is families, where a close family member view the accident
                                    and subsequent injury/death of another family member
               iii. Courts have changed an expanded liability, weakening the abstractions
                        1. There are still requirements of close relationship, direct observation of the injury
                            and foreseeability.

AFFIRMATIVE DUTIES (Nonfeasance – failure to act – as opposed to misfeasance – negligence)
     I)  Duties Overviews
         a. Duty when you create the risk faced by the other party either intentionally, negligently or
                 i. If you alter the risk profile, you must set it right
                ii. Duty to those you invite onto your property (excluding trespassers)
               iii. Duty when you begin a rescue or other gratuitous undertaking that changes the
                    relevant risk profile of P in such a way that failure to continue would be detrimental
               iv. Duty to act when you have a special relationship that arises by contract or position
     II) Duty to Rescue
         a. In general, there is not duty to act-> IF D see that P is in danger, D does not have a duty to
            rescue P.
         b. Philosophical underpinnings
                 i. One view fears social interference with individual liberty as a slippery slope
                    diminishing personal autonomy. (Epstein)
                ii. Another believes that there is a reciprocal obligation between members of society
                    based on contract theory (Posner)
                        1. If people could contract for behavior that would save their lives, they would
                        2. The consideration is the benefit of knowing that someday someone may save
                            your life
               iii. There’s no reason not to act based on notions of caring and responsibility. Based on
                    humanitarian concerns. (Bender)
         c. Four key dimensions
                 i. Was the person in distress non-negligently? Because of their own negligence?
                    Because of an intentional wrong?
                ii. Was distress created by D: D created situation non-neg? D created situation neg? D
                    created situation intentionally?
               iii. D could relieve distress with no cost? With some cost? With some cost and
                    bargaining is possible? With cost and bargaining is impossible?
               iv. Does D rescue non-negligently? Does D rescue negligently, but completes rescue?
                    Does D undertake to rescue but neg fails to succeed in rescuing?
       d. No duty to warn trespassers of the existence of dangerous conditions even if the trespasser is
          a child. Buch
               i. This has changed in modern times with attractive nuisance laws
              ii. RST §339: Owner has liability for physical harm if:
                      1. Children know that the condition exists
                      2. It presents an unreasonable risk to children
                      3. The children don’t realize the risk
                      4. B<P*L – Burden of eliminating the condition is slight compared with the risk
       e. There is an affirmative duty if the defendant created the risk, even if D did not create the risk
          negligently. Montgomery (Icy highway case)
               i. There is an also a duty to rescue those who have been harmed tortiously.
              ii. RST §322: If the actor knows or has reason to know that he has caused such bodily
                  harm to another so as to make him helpless and in danger of further harm, the actor
                  has a duty to prevent further harm
       f. Duty to those invited on your property for business purposes.
       g. Duty to continue rescue efforts once started
               i. RST §324: One who takes charge of another who is injured or helpless is subject to
                  liability for any harm that results from the failure of the actor to exercise reasonable
                  care or from the discontinuance of aid that leaves the injured person in a worse
              ii. Changing the risk profile disfavorably and may dissuade other people from helping
                      1. This is similar to the Tithe Case, in which undertaking a good deed
                           negligently preventing the parson from having a cause of action against
                           someone else.
             iii. However, a mere promise to help D is not enough, unless P has a reliance interest.
       h. Duty when special relationship exists
III)   Duties of Owners and Occupiers
       a. In the common law, there were three categories of people. (Addie)
               i. Invitees – people who come onto property for business purposes. This includes
                  people invited to enter the land (shoppers) and business visitors
                      1. Highest standard of duty
                      2. There is a duty of due care, to inspect for hidden dangers and give warning to
              ii. Licensee – guests and people who come onto the land with permission, but do not
                  have a business purpose
                      1. Covers personal guests
                      2. And people who you are aware use the land, but you don’t ask to leave
                               a. They are implied licensees
                      3. No duty to ensure the premises are safe, but the owner has a duty of care to
                           warn of concealed or other dangers
             iii. Trespassers – No duty to take reasonable care or duty to warn of concealed dangers
                      1. Enters premises on their own risk
                      2. However, landowners still owe a duty to trespassing children if there is an
                           attractive nuisance.
       b. Modern law has collapsed the invitees and licensee categories because they were primarily
          based on land-ownership, which is less important in an urban society
               i. The owner owes a duty of reasonable care to invitees/licensees
              ii. No duty to trespassers, unless it’s an attractive nuisance
       c. Minority View. Owners owe a reasonable duty of care to everyone on your land, but the
          court will take the status of the injured person into account in determining liability (Rowland)
                      1. Status becomes a factor, but it is not dispositive
IV)   Gratuitous Undertakings - In general, a person who undertakes to do something gratuitously
      must use reasonable care
      a. One can not begin to perform and then do so negligently
               i. This takes on a detrimental reliance-like quality. The gratuitous undertaking/promise
                  has caused P to change his position to his detriment. No consideration, but the neg
                  party is still liable
              ii. Coggs. Spilling the brandy case. There is a foreseeability of danger and altering of
                  risk profile because the actor consciously alters the risk profile of the barrels.
             iii. RST §323: One who undertakes an undertakes a task either gratuitously or for
                  consideration which involved protecting the other’s person or property is subject to
                  liability for any harm which results from failure to exercise reasonable care
                      1. The exception is if P is negligent
      b. If you undertake an activity and people come to depend on it, you have to continue to
         perform, even if you did not have to undertake the activity in the first place
               i. Erie RR. P knew that D usually posted a watchman at the railroad, so D has a duty to
                  P to keep a watchman posted
                      1. P acted in reliance upon the custom
              ii. P has to show that he was aware of and relied on the custom when he was injured
                      1. The concurrence disagrees and states that RRs in general owe a standard duty
                           of care regardless of the knowledge of the traveler.
                      2. The majority’s rule is not a good incentive to set up warning systems, because
                           once you create one, you can not step away from it.
      c. Held to negligence standards. A larger precaution is needed since the potential for damage is
         greater when the promised act is not done, because P has changed his risk profile in response
         to the promise (Marsalis v. LaSalle)
               i. Cat bite case. You do not owe a duty to people whom your cat bites, but you do owe a
                  duty to keep the cat if you make the promise to do it.
              ii. The harm is greater (rabies treatment) if the cat negligently is allowed to escape
      d. In general, a party whose performance incidentally confers a benefit upon a third party does
         not owe any duty to continue to perform to those parties.
               i. There is a privity relationship aspect. If D makes a promise to provide a city with
                  water, but the lack of adequate water pressure results in P’s house burning down, D is
                  not liable. (Moch Co. v. Rensselaer Water)
              ii. RST §324A is slightly different and states that a party that undertakes to render
                  services which benefit third parties, are liable to those parties if the failure to exercise
                  reasonable care increase the risk of harm.
V)    Special Relationships
      a. RST § 315: There is no duty to control the conduct of a third person as to prevent him from
         causing physical harm unless
               i. A special relation exists between the actor and the third person which imposes a duty
                  on the actor to control the 3d person
              ii. A special relation exists between the actor and the other which gives the other a right
                  to protection
      b. Landlords have a duty to protect common areas of premises, when the landlord has exclusive
         control over safety measures (locks, security guards) and he is aware of risks of specific
               i. Landlords are not meant to be insurers of tenants, but tenants do not have the power
                  to change residences to make them safer, so the responsibility lies with the landlord
                  when there is a risk. Kline
              ii. Landlords are justified in passing the risk onto the tenant
               c. Psychiatrists have the duty to protect third parties when they have a special relationship to
                  the actor and harm is reasonably foreseeable.
                       i. Special relationship involves guardianship either of person (prisons, mental hospitals)
                          or information (fiduciary relationship)
                      ii. There’s no doctor-patient privilege, because there’s a foreseeable danger the doctor
                          knows about and the doctor is a unique position to know about the danger. Tarasoff
                          v. Regents of U of C.
                              1. It must be a specific threat to a specific person that is likely to be carried out

Traditional Strict Liability
       I)     CONVERSION – Conversion is an intentional tort, but the intent is to substantially interfere
              with P’s possession or ownership of property. However, no intent to harm P’s possessory
              interest is required
              a. Elements:
                        i. P actually owns the property or has the right to possess.
                               1. Does a P own cells/tissues from his own body? Yes (Moore)
                       ii. Conversion occurs by “wrongful act” or by disposition of P’s property rights
                               1. Do you abandon the right to your cells when you have surgery?
                               2. This is the tough questions, because it would seem that one has a right to
                                    informed consent and full disclosure about what the cells will be used for.
                     iii. P is damaged by this wrongful act
              b. DEFENSE- abandonment.
                        i. The gray areas are when does someone actually consents to abandonment
                       ii. States require an affirmative act of abandonment, accompanies by full disclosure of
                           rights in a medical situation
              c. Other examples include
                        i. Acquisition of possession
                       ii. Acquiring goods by fraud
                     iii. Removal of goods
                     iv. Withholding goods from their owners
                       v. Destroying or altering goods
       II)    ANIMALS – D is strictly liability for damages to person, at least for animals classified as
              dangerous by nature.
              a. Damages to persons
                        i. Domestic animals – negligence standard unless the specific beast is known to have
                           dangerous tendencies
                               1. The “one-bite” rule does not apply. A demonstrated tendency to bite is
                                    enough, so that domestic animals that have shown dangerous propensities fall
                                    under strict liability. (Baker v. Snell)
                               2. These types of animals approach wild animals and are held to the same
                       ii. Wild animals (snakes, tigers, etc): Strictly liable for all injuries. These are dangerous
                           by nature
              b. Damages to property - This mostly relates to livestock, but there is remoteness of damages
                        i. Strict liability of the possessor of trespassing livestock does not extend to harm
                               1. Not reasonably expected from the intrusion
                               2. Done by animals straying onto abutting land
                                        a. Fencing in v. Fencing Out
                            b. For the most part in open range areas, there’s a duty to fence out; in
                                closed range areas, there’s a duty to fence in.
                      3. Brought about by unexpected operation of a force of nature action of another
                         animal or a third party.

       a. RST § 519: One who carries on an abnormally dangerous activity is subject to liability for
          harm to the person or property of another, even though he has exercised the utmost care.
       b. This SL is limited to the kind of harm, the possibility of which makes the activity abnormally
               i. Guille v. Swan-> D caused damages landing in P’s fields because people running to
                   rescue him trampled the crops. P sued and won.
              ii. In Fletcher: The rule was strict liability for any non-natural use of land
             iii. Today, the natual/non-natural distinction boils down to suitable/not suitable or
       c. Early Common Law, there was a division between negligence and strict liability. Booth
               i. To show strict liability, there had to be a physical invasion (shrapnel, etc) –
              ii. Other wise, proof of negligence was required, unless there was actual physical
                   invasion (sound or concussion damages) – TRESPASS IN CASE
       d. Modern Rule. One is liable without fault for any damages resulting from an ultrahazardous
          activity, regardless of physical invasion (Spano)
               i. For example, blasting has such a high probability of damages occurring
       e. What is ultrahazardous? The following factors are considered:
               i. Activity involves a high degree of risk of some harm
              ii. Likelihood that the harm will be great
             iii. Risk cannot be eliminated by the exercise of reasonable care
             iv. Activity is not a matter of common usage
              v. Inappropriateness of the activity to the venue
             vi. Extent to which value to community is outweighed by dangerous attributes.
       f. This is close to absolute liability, which affords NO DEFENSES.
               i. CN is usually not allowed as a defense to ultrahazardous activity
                       1. RST §524: CN is not a defense to SL of one who carries out an abnormally
                          dangerous activity, unless P’s knowingly and unreasonably subjects himself to
                          the risk of harm from the activity. (Assumption of Risk – RST§523)
                       2. However, there is no strict liability for harm caused by an abnormally
                          dangerous activity if the harm would not have resulted but for the abnormally
                          sensitive character of P’s activity. §524A.
                               a. This is not the eggshell P rule, although it resembles it
                               b. The mink case
       g. Why is this Strict Liability and not negligence? Because these are actions which are not
          negligent and have some socially redeeming quality
               i. Because the social benefits exceed the social costs
                       1. The ultrahazardous rule is applicable to those acts that are carried on with all
                          reasonable care, but that are of such utility to society that the risk cannot be
                          regarded as so unreasonable as to make it negligence merely to carry on the
                       2. If the utility does not justify the risks (costs>benefits), it is negligence
       h. Notion of asymmetrical risk: Those activities that give rise to asymmetrical risk (driving a
          car is a symmetrical risk, because you are a threat to every other driver) are ultrahazardous
                      i. We want to give an inventive to reduce the dangerous risks when they only effect one
                     ii. For example, we will not hold the manufacturer of a toxic chemical liable, because
                         the manufacture is not ultrahazardous, but the faulty shipping is. (Indiana Harbor
                             1. Shipper is the least cost risk avoider

    I)   History
         a. Initially, in common law, users of a product could sue only the party who directly sold them
            the product, not the original manufacturer. (Winterbottom)
                 i. Privity Rules, which prevented injured parties from suing the “remote” manufacturer
                ii. There were exceptions though:
                         1. The product is imminently dangerous to life
                         2. Knowing sale or delivery of a dangerous product
                         3. Owner’s negligence which causes injury to one who is invited by him to use
                             his defective appliance on the owner’s premises. Owner is liable
         b. Then, American courts completely rejected the privity limitation and imposed liability in
            negligence on any party in the supply chain, from the manufacturer to the retailer.
                 i. The general idea is that mfr knows there is a downstream user and the mfr knows the
                     item is dangerous
                ii. The mfr is in the best position to inspect the item (particularly if it is sealed)
               iii. Consumers have an expectation that what they buy will be safe, because mfr’s
                     promise them that via warranty.
               iv. Express warranty that the goods will work, because of a promise about the item or a
                     description of the goods
         c. Then, Traynor stated a principle of holding mfr’s to a strict liability standard. “A standard of
            liability that would make the mfr guarantee the safety of his product even when there is no
            negligence. (Escola)
                 i. Res Ipsa would not work in all occasions, because the D would not be the only person
                     to handle the item (no exclusive control)…THUS
                ii. Mfrs are held SL because
                         1. They are in the best position to anticipate and protect against harm
                         2. Retailers can’t bear the burden or best distribute the cost
                         3. Implied warranty
                                 a. There’s an implied warranty that products will be merchantable and fit
                                     for the purpose they are designed to serve. (McCabe)
                                 b. If the thing damages people when it is doing what it is supposed to do,
                                     there is liability.
                                 c. There is a privity complication here, because some courts have held
                                     that a mfr is not liable to 3d person under an implied warranty because
                                     there is no contractual relationship with that person.
                         4. “Unreasonable Harm” – Sometimes we don’t want to let the harm lay where it
                             may even if there’s negligence
                         5. Insurance – Reallocation of costs
                         6. There’s no need to create a fiction of negligence (food stuffs); just impute
                         7. Eliminates proof problems that exist in negligence regimes, especially since
                             the defect in the product will often destroy the evidence.
    II)  Products Liability Generally -> Sellers of products are strictly liable for harms caused
       a. If the product is in a defective condition that is unreasonably dangerous to the consumer.
          RST §402A
       b. What is defective and unreasonably dangerous?
                i. Product is in a condition not ultimately contemplated by the ultimate consumer
               ii. Product must be dangerous to an extent beyond that which would be contemplated by
                   the ordinary consumer who purchases it, with the ordinary knowledge common to the
                   community as to its characteristics
                       1. Good whiskey in not unreasonably dangerous, even though it could cause
                       2. Bad whiskey is.
              iii. Unavoidably unsafe products that are properly prepared and carry with them adequate
                   warnings, are not defective or unreasonably dangerous
                       1. The best example is prescription drugs
                       2. The benefits justify the risks and there is no liability here
       c. What is a “seller?”
                i. Manufacturers
               ii. Wholesalers
              iii. Retailers
              iv. Doctors (Service providers in general) are not sellers. Cafazzo
                       1. The implant the doctor puts in is subject to product liability, but the doctor is
                       2. Doctors have no control over the mfr process and they are poor insurers
               v. Retailers and distributors however do count as sellers and are subject to product
                   liability laws
III)   What the P must prove in a products liability case
       a. D manufactured or sold the product - Duty
       b. That product was actually defective - Breach
                i. Just because D subsequently changed the product design is not a P.F. showing of
               ii. P must also show that the defect existed at the time the product left D’s hands.
       c. Defective product caused P’s injuries – Causation
       d. P suffered some harm.
IV)    Defenses to Products Liability
       a. Economic Loss Rule – Prohibits tort recovery when a product injures itself, but does not
          cause personal injury or damage to any other property. Casa Clara.
                i. This is the dividing line between torts and contracts
                       1. Economic losses are disappointed economic expectations covered by contract
                       2. The tort function of shifting costs to the least cost avoider is not fulfilled by
                            using contract law here.
               ii. The minority view is that there should be recovery for economic loss, especially since
                   personal injury takes into account economic loss
                       1. A product’s defect, like a car not running, can cause economic loss.
              iii. The more modern view is that recovery can be awarded when:
                       1. The injury to P’s property was foreseeable
                       2. D’s conduct is relatively blameworthy
                       3. Relatively few plaintiffs would be permitted to sue if liability were found for
                            pure economic loss.
       b. Service Providers. Not liable for defect in the products used in the process of rendering
          services (Murphy).
                i. The example is doctors or pharmacies, which are a combination of sales and services
             ii. We don not want to hold pharmacies strictly liable for drugs they dispense, because
                 some might restrict the availability of drugs which pose even a potentially remote risk
                 of harm.
V)   The New Definition of Defective
     a. Abandons bystander rule and creates new categories for types of defects
              i. Construction Defects – the product departs from its intended design even though all
                 possible care was exercised in its preparation and marketing (SL)
             ii. Design Defects – The foreseeable risks of harm posed by the product could have been
                 reduced or avoided by the adoption of a reasonable alternative design by the seller
                     1. The omission of an alternative design must render the product not reasonably
                         safe (Negligence)
            iii. Warning Defects – Defective b/c of inadequate instructions or warnings when the
                 foreseeable risks of harm posed by the product could have been reduced or avoided
                 by the seller (Negligence)
     b. Construction/Manufacturing Defects: P must prove that the injury resulted from a
        condition of the product which was unreasonably dangerous and which existed at the time the
        product left mfr’s control.
              i. The product must vary in some way from its design. (Pouncey – fan blades made
                 from insufficient steel)
             ii. In some cases, P has a lower burden and RIL can play a role: P does not even have to
                 identify the specific product defect, just that the injury would not have occurred if a
                 product defect was not present
     c. Design Defect – All products mfr by D are the same, but they all bear a feature whose design
        itself is defective and unreasonably dangerous
              i. Types of design defects include structural defects and lack of safety features
             ii. Liable for design defects which mfr could reasonably have foreseen would cause
                 certain types of damages and which is not obvious to the user
                     1. D is not liable for unforeseeable misuse
                     2. But if there is foreseeable misuse, D has a duty to use design precautions to
                         guard against the danger of that misuse.
            iii. Negligence Standard; the design is defective if B<PxL.
                     1. There was a feasible alternative design and the costs of the alternative are less
                         than the costs of the injuries avoided.
                     2. Duty to consumers
                             a. Breach – D could have reasonably reduced the harm by adopting a
                                 safer design
                             b. Causation – Damages more likely than not caused by the failure to use
                                 a better design
            iv. No recovery if the danger is patent or obvious
                     1. Bulletproof-vest case. The vest cannot be expected to protect the areas it does
                         not actually cover. “No recovery for the open and obvious.”
                     2. If P can see that the object is dangerous, like a printing press, and still
                         proceeds with the action, there is no recovery. (Micallef)
             v. Two Tests
                     1. Failure to perform as safely as an ordinary consumer would expect when used
                         as intended (INTENDED USE). (Baker v. Lull)
                             a. This is the initial test, but it’s not enough because consumers don’t
                                 know what to expect.
                             b. But if mfr can get past the consumer expectation test, they still have to
                                 pass the risk/utility test
                                            i. Potter. Pneumatic drill and excessive vibrations. It can be
                                                difficult to determine reasonable expectations, so there’s the
                                                risk utility test
                           2. Risk-Utility Balance – Takes into account the following factors:
                                   a. Usefulness of the product
                                   b. Likelihood the product will cause damage
                                   c. Availability of an alternative design
                                   d. Ability of mfr to use an alternative design without impairing the utility
                                       of the product or raising its cost too far
                                   e. User’s anticipated awareness of dangers inherent in the product,
                                       because of general public knowledge or warnings
                                   f. Feasibility of loss-spreading by mfr.
                 vi. Burden of Proof (Barker)
                           1. P, at the least, has to makes a P.F. showing that the injury was proximately
                               caused by the product’s design
                                   a. Some courts require P to show evidence that a reasonable alternative
                                   b. The problem with this is that P often does not have the needed access
                                       to this type of info
                           2. Once P has done this, then D has the burden to show that the product was not
                           defective/an alternative design was not feasible
           d. Duty to Warn – Extra obligation by mfr to adequately warn.
                   i. If a product is properly designed and properly manufactured, D must still give a
                      warning if there is a non-obvious risk of personal injury from using the product.
                  ii. Not a substitute for not making defective products.
                           1. A mfr who has made a defective product cannot use a warning as a defense.
                iii. Old Rule: Duty to warn of all risks, no matter whether the risks were known (SL)
                 iv. New Rule: Mfr not held liable for failure to warn or provide instructions about risks
                      that were not reasonably foreseeable at the time of sale (Neg.)
                           1. Where the warning will make the product safer, taking into account the costs
                               and benefits of the warning
                           2. No duty to warn if D neither knew or should have known about the danger at
                               the time of sale.
                  v. Unavoidable dangerous products: No liability for these types of products, so long
                      as there is a reasonable warning (Comment k)
                           1. Seller needs to also put a warning if there is a danger that the consumer would
                               not reasonably expect to know (comment m)
                           2. Allergies to medicines is an example.
                 vi. In general, P has to show that the failure to warn caused the damages and a
                      reasonable warning might have avoided the harm.
                vii. Learned Intermediary Doctrine
                           1. Doctor, stockbroker, general contractor serves as the middleman and conveys
                               the warnings to the ultimate consumer
                           2. However, if the product tends to be purchased directly, the mfr has a duty to
                               warn the public in “lay language” (McDonald)
               viii. State/Federal Regulations. Compliance with warning requirements is evidence of
                      adequate warning, but it’s not dispositive.
    I)  Overview
        a. Economic Damages (Compensatory)
               i. Medical Expenses
               ii. Property Damages
              iii. Lost Wages
        b. Non-economic damages (Compensatory)
                i. Pain + Suffering
               ii. Aesthetic Damages
              iii. Hedonic Damages
                       1. Loss of consortium
                       2. Loss of enjoyment of life
       c. Punitive Damages (Exemplary/Deterrence)
II)     Economic Damages
        a. Lost Wages
                i. P is under a duty to seek additional employment…IF POSSIBLE
               ii. Max. Wage should not be based on prior, but rather on max. present earnings
                       1. Law student example. I have not made much in the past, but I will probably
                           make a lot in the future
              iii. There must be a reasonable method of determining future wages
                       1. Take into account possible income ranges, raises and approximate number of
                           years working and develop a range of possible damages. (O’Shea)
                       2. There is an assumption that the person will work their entire life, which may
                           be false
                                a. There are mandatory retirement ages in most industries
                                b. The court tends not to take these into account because it is too
                                   complex and depends so much on the individual person
              iv. Take into account inflation on both sides: boost wages by the amount it should
                   increase and discount it by the real value of money.
               v. Damage awards are not taxable and courts have not reduced damages for lost
                   earnings taking into account their tax free status
        b. Medical Expenses
                i. Includes MD’s and hospital bills as well as cost of future care
               ii. However, P is entitled only to “reasonable cost” of medical expenses
        c. Lowering award judgments
                i. Remittur: A practice by which the judge can arbitrarily reduce the damage award
                   after the jury has given it. (Firestone)
               ii. However, many courts have eliminated remittitur because it takes power away from
                   the jury and the judge already has the power to reject damages by entering a JNOV
        d. P does have a duty to mitigate damages (McGinley)
                i. Includes seeking reasonable alternative employment or medical attention
               ii. However, P do not have to undergo medical treatments to mitigate damages when
                   there is a low chance of success.
III)    Non-Economic Damages – Very subjective measurement
        a. Pain and Suffering
                i. Person must be conscious and aware to recover
                       1. Damages have no utility to someone who can’t use them
               ii. However, the interesting effect is that the more severe the damage, the less the
        b. Loss of Enjoyment of Life
                i. Compensation for life’s pleasures – sex, etc.
               ii. This is more or less the same thing as above
IV)     How damages end up in a lawyer’s pocket
        a. Contingent Fees
                i. Helps Ps because more cases get taken
               ii. However, cases also tend to get settled earlier and for lower value, because atty gets a
                   higher rate of return for less work
       b. Fee Structures - By the hour
       c. Fee shifting – Parties pay their own costs in the U.S.
       d. Selling Tort Claims – Not presently permitted
V)     Collateral Benefits
       a. In general, P’s recovery will not be reduced by an collateral benefits he receives from
                i. Insurance is considered to be a separate thing paid for by P that does not impact D’s
               ii. There is some question about whether government benefits are considered collateral
                   benefits that can be reduced (especially when the recovery is against the U.S. gov’t),
                   but the courts have pretty much rejected this.
       b. Some states have begun to change the collateral benefit rule and allow for reduction,
          particularly in medical malpractice
       c. Subrogation and Reimbursement. In addition, some states allow the insurance company (or
          supplier of collateral benefit) to recover what they have paid either directly from D or from
VI)    Wrongful Death
       a. Common law used to hold that there was no recovery for wrongful death, because the action
          did not survive past the decedent’s death.
       b. However, today torts survive death
       c. Damages are measured in two ways:
                i. Loss to survivors: D pays damages only if some beneficiary depends on decedent for
                   support. This is the majority rule
               ii. Loss to estate: D pays damages not matter whether D had dependents.
       d. Loss of Consortium
                i. Beyond just the loss of spouse for sexual intercourse, not it’s just the element of lost
               ii. Some states also allow wrongful death and loss of consortium arguments for children,
                   because they lose the close relationship they have with their parents
VII)   Punitive Damages
       a. Why punitive damages
                i. Compensatory damages sometimes are not enough, especially given the difficulties in
                   approximating damages
               ii. Punitive damages help ensure deterrence, by deterring potential injurers from harm
                   who balance out costs and benefits and still go ahead
              iii. Compensate P for the rare case in which D enjoys the tortious behavior (defamation)
              iv. Assumption that some tortfeasors only get caught half the time and figure this into
                   their CBA. This helps even things out
               v. Express community’s outrage at particularly bad behavior and help pick up the slack
                   when the criminal law system fails
                       1. Particularly when there is “malice” or the offense is so “enormous.”
       b. P does not have a burden to bring in evidence of D’s wealth for punitive damages purposes
                i. P will often do this voluntarily to show that D is wealthy and has deep pockets, but P
                   does not have to.
       c. How much is enough?
                i. Not set boundaries, but there are three guidelines to look at to determine whether the
                   damage is so excessive as to violate due process clause:
                       1. Degree of Reprehensibility: Some wrongs are more blameworthy than others
                             2. Ration of punitive damages to actual harm inflicted on P.
                                   a. There must be a reasonable relationship between the two.
                             3. What other guidelines are used by other states for comparable misconduct

CL: In favor of reputation
Constitution: In favor of freedom of speech

   I)      Definitions -> The legally protected interest is reputation
           a. Defendant published/orally related
           b. Statement
           c. Of and concerning plaintiff
           d. Causing Damages
           e. Libel v. Slander
                    i. Libel – Publication
                           1. Defamation embodied in some physical form, like a book or picture
                           2. The permanence of libel makes it more dangerous
                   ii. Slander – Falsely spoken words
                           1. This can include gestures
   II)     Prima Facie Case
           a. A false and defamatory statement was made concerning P
           b. That statement was communicated (published) to a third person other than the Plaintiff
           c. Fault on the part of D, at least negligence
           d. Harm: Either general damages or special harm of a pecuniary nature
   III)    False or Defamatory Statements: A communication is defamatory if it tends to harm the reputation
           of another as to lower him in the estimation of the community or to deter third persons from
           associating with him
           a. The statement must be “of and concerning” P.
                    i. A reasonable portion of the community must be able to identify the P as the party
                       defamed and interprets the statement as defamatory. (Youssoupoff)
                   ii. P claims that any reasonable person would have understood that the character was P
           b. Intent->In CL, defamation were SL torts
                    i. Common law regards defamation as a tort of strict liability (Hulton).
                           1. A wrongful act done intentionally, even if the result is not what is foreseen
                           2. The writing just has to be malicious and “of and concerning the plaintiff,” it does
                                not matter if the writer did not intend for it to be one way.
                   ii. This has changed and now if P is a public figure, P must show that D made the statements
                       with actual malice (knowledge of falsity and reckless disregard of truth)
                  iii. Unintentionally false statement. A statement can be intentional, but the resulting
                       message could be unintentional. (Burton-> “Get a Lift out of Camels” )
                  iv. The issue is whether P is subject to ridicule as a result
                           1. Hand states that Ds could be held liable because they could not show that
                                statements were true.
                   v. The distinction is with parody, when the caricature is so extreme that no one would ever
                       belief it was true. (Falwell case) – NOT DEFAMATION
           c. Fact/Opinion Dichotomy
                    i. Pure Opinion. Pure opinions are non-defamatory, so long as it is very clear that the
                       person speaking is expressing an opinion (In my opinion, Bill Clinton is a schmuckl)
                   ii. In Milkovich, the court does not allow this rule to cover up general statements of fact
                       made in the context opinion (In my opinion, Bill Clinton is dead)
            iii. The court must determine that a statement is opinion, as opposed to a fact before
                 determining whether it is true of false.
      d. Truth (DEFENSE)
      e. Burden of Proving Truth/Falsity.
              i. At common law, D had burden of showing something was true
                     1. If the D is not a media organization and P is a private figure, D still has the
                         burden of showing truth.
             ii. Otherwise, P.F. case requires P to show that the statement published is false
                     1. D is a media organization and/or the statement involves a matter of public
                     2. In trade libel, P must show that D published a knowingly false statement harmful
                         to the interest of another
                     3. In Auvil, the court required the WA. Apple growers to prove that the message of
                         D was false
                             a. P says relying on animal studies is not enough to show a link between Alar
                                  and Cancer…Ct says it’s enough
                             b. P also says the overall “gist” of the broadcast was that easting apples
                                  would lead to cancer. The court holds that P must prove that a statement
                                  is false, not just a message.
      f. Innocent Construction Rule
              i. A statement which is actionable per se will not be actionable if it is “reasonably capable
                 of an innocent construction.”
             ii. Only reasonably innocent constructions will remove an allegedly defamatory statement
                 from the per se category
                     1. For example, using the word “slut” in an article in which there is a sexual content
                         is not likely to have an innocent construction.
                     2. Mitior Sensus: When words have two meanings, one lenient and one severe, the
                         court will construe them in the more lenient sense.
            iii. Innocent Construction interactions with per se/per quod
                     1. If a statement fits under the innocent construction rule, you need to prove special
                         damages even if there’s libel per se.
                     2. The innocent construction rule takes you back to per quod
IV)    Per Se/Per Quod Distinction
              i. Defamation per se – Do not have to show special damages, just show general damages
                     1. Unchastity
                     2. Crime
                     3. Disease
                     4. Business Reputation
             ii. Defamation per quod – Statements that result in general damages to reputation
                     1. Require a showing of special or specific economic damages
                     2. If P believes D has defamed him with a defamation per quod, P must show special
                         damages to recover
            iii. Special Damages
                     1. These are actual damages, such as loss of opportunity or show of specific injury
                     2. Customers X, Y+Z don’t come by anymore, my marriage broke up, I don’t get
                         invited to dinner parties nay more
                             a. Specific evidence of the thing that was lost
                             b. Actual contracts that were withdrawn
                             c. Actual dinner invitations that were no longer received
                     3. However, courts have allowed P to just show that there has been a specific
                         decrease in business to prevail (Ellsworth) -> Don’t have to bring in specific
                     4. P has a burden to show a causal link -> The defamation more likely than not
                         caused the damages
                     5. Show a marked decrease in business, but you have to show that the loss of
                         business was not due to other unrelated causes
                     6. Neither mental nor physical illness count as special damages (Terwilliger)
            iv. General Damages – Per Se Defamation
                     1. Injury to reputation
                     2. Loss of Business
                             a. P can show that he was once making a certain amount of money and after
                                 the defamation, made much less and lost out on business opportunities
                     3. Wounded Feelings/Bodily Suffering
                     4. The justification for awarding general damages is that it serves as a means of
                         avoiding the administrative and evidentiary problems from seeking to prove
                         special damages
                             a. The rough estimate is better than the alternative which denies recovery all
V)    Publication
      a. Publication of defamatory matter is its communication intentionally or by a negligent act to one
         other than the person defamed (3d party)
              i. One who intentionally or unreasonably fails to remove defamatory matter known to be
                 exhibited on land or chattels under his control is subject to liability for continued
             ii. However, the exception is that republication by the P does not count as publication,
                 unless its compelled republication
                     1. In Mims, there were two alleged acts of publication (THIS CASE DIFFERS
                         FROM RST AND IS THE OUTLIER)
                             a. First, when D dictated the letter to the secretary. This was not defamation
                                 because both parties were considered to be agents for the same cause
                             b. Second, when the Senator saw the letter. However, this was not
                                 publication because the whole point was for Sparkman to see the letter.
      b. Mass Publication Rule: Mass publication is a single tortious act, no separate torts for each time a
         book or newspaper is sold.
      c. Publishers vs Distributors
              i. Common law holds that D is only liable when he has both knowledge of what was
                 published and discretion over whether to make or withhold publication
             ii. Public libraries, bookstores, newsstands can not be held liable UNLESS they knew or had
                 reason to know there was false or defamatory material
            iii. Recent legislation, The Communications Decency Act of 1996, states that “No provider
                 or user of an interactive computer service shall be treated as the publisher or speaker of
                 info provided by a third party content provider
                     1. This is designed to protect ISPs from having to make difficult editorial calls for
                         millions of documents, which would take too much time and money. (Zeran v.
VI)   Other Remedies
      a. Injunctions – Rarely used b/c it violates 1st Amend
      b. Retractions
              i. Retractions also violate 1st Amend because forced speech is as bad as no speech
             ii. At common law, retractions only served to mitigate damages
            iii. Many states have statutes which require Ps to provide D with an opportunity to retract the
       c. Reply Statutes – Also unconstitutional
              i. Just because someone says something about you doesn’t mean you get to have the right
                 to have the same length reply
             ii. Many media outlets have fairness doctrines

VII)   Privileges: Constitutional or Nonconstitutional (CL or Statute)
       a. Privilege in the Private Sphere-> Qualified Privliges (Watt v. Longsdon)
                i. Duty to communicate info to person with interest in receiving the info (job references)
               ii. An interest in the speaker to be protected by communicating info to a person who
                   honestly believed he has a duty to protect that interest
                       1. Tenant can complain to landlord about the shoddy repairing of a workman
                           because the tenant and landlord have an interest in the work being done
              iii. A common interest and reciprocal duty in respect to the communication
              iv. These are conditional privileges and can be overcome by showing
                       1. Malice: Intent to injure or recklessly disregarding falsity
                       2. Abuse: In excess of privilege beyond duty or interest
       b. Privilege in the Public Sphere – ABSOLUTE PRIVILEGE
                i. Statements during legal proceedings are absolutely privileged
                       1. This includes any words spoken during trial depos, etc.
                       2. However, this does not include words spoken about a judicial privilege to the
                           press (Kennedy)
                               a. This privilege includes all government proceedings and even a large
                                    number of quasi-governmental bodies (like bar associations, medical peer
                                    review boards, union grievance boards, etc)
                               b. There is a problem with this though, because gov’t officials are immune
                                    from suit and can defame, while D attorneys cannot
               ii. Reports of government investigations are also absolutely privileged – Record Libel
                       1. However, any abridgment must be fair and accurate. (B+W v. Jacobsen)
                               a. Jacobsen’s statements were libel per se, but the question is were they
                                    protected by the above privilege because he was quoting an FTC report.
                               b. There can be discrepancies between the summary and the report; it just has
                                    to be fair
                       2. RST §611: The publication of defamatory concerning another in an official report
                           is privileged if the report is accurate and complete or a fair abridgement of the
                           occurrence reported
       c. Constitutional Privilege
                i. Public Officials: NYT v. Sullivan
                       1. D is police commissioner in AL, AL law is that D has burden of proof to show
                           that the ad was true in all its particulars
               ii. Public officials suing for defamation must prove actual malice, otherwise the 1st and 14th
                   amendments make statements by the press concerning the official conduct of public
                   officers immune from libel.
                       1. The publisher had to either know the statement was false or published with
                           reckless disregard for the truth
                               a. Negligent fact-checking is not enough
                               b. Furthermore, the statement has to clearly be about the P
                       2. P must prove the substantial falsity of the statements
              iii. The public policy behind this
      1. We want to protect the press in providing info about public officials
      2. Government officials have immunity in their public statements, citizens should
         have the same right