1

Torts Outline
TOC:
I. Introduction p.1
II. The Negligence Standard p.2
III. The Duty Requirement: Physical Injuries p.9
IV. Non-Physical Injuries p.14
A. Emotional Harm p.14
B. Economic Harm p.16
C. Wrongful Birth, Wrongful Life, Fetal Rights, Right to Die p.16
V. Causation p.17
A. Cause-in-Fact p.17
B. Proximate Cause p.21
VI. Defenses p.23
VII. Strict Liability p.28
A. Traditional Strict Liability p.28
B. Strict Liability for Defective Products p.31
VIII. Damages p.35
I. INTRODUCTION: LEGAL PROCESSES, INSTITUTIONS, THEORIES OF
LIABILITY p. 1-30
A. Prologue (Why have a tort system?)
1. Deterrence
2. Compensation (are other sources enough? Insurance, charity, welfare) = MAIN
GOAL
3. Fairness
B. When Should Unintended Injury Result In Liability?
1. Hammontree v. Jenner (p.3) = seizure D drives car into Ps store. Ct held Ps
injuries rest on principles of Negligence.
A. Negligence = must prove fault; Strict Liability = need to prove only
defect in driver; Absolute Liability = need only prove that D caused injury
C. The Litigation Process
1. Rules
A. Res judicata = the thing that has been decided
B. Statute of limitations = amount of time to bring claim
C. Single Judgment Rule = can sue only once for injury; a plaintiff cannot
sue for further medical injury discovered after the judgment
2. Types of loss for which to sue
A. Tangible loss = loss already incurred or that is predictable (medical
bills, loss of income)
B. Intangible loss = loss that is not financial (pain and suffering)
3. Attorney fees
A. Contingency = attorney collects only if client wins; allows broad access
to the legal system
i. Discourages frivolous litigation (unless you sue deep pockets in
the hopes of a settlement)

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B. Injunctive = require hourly fees or public interest services because there
is often no monetary award, or its not substantial
D. The Parties and Vicarious Liability
1. Employee Negligence = direct fault of employee
2. Respondeat Superior = forces employers to take care in employee
selection/training (indirect fault)
3. Scope of Employment
A. Christensen v. Swenson (p.18) = D (employee of Burns) hit P on 15 min
lunch break. Did Ds act fall w/i scope of employment? Ct says it is for
jury to decide; remanded
i. Birkner Test
a. Employee on or about employers business (not wholly
personal endeavor)
b. Conduct w/i hours and special boundaries of work
c. Conduct motivated by purpose of serving employer
4. Independent Contractor and Apparent Authority
A. Roessler v. Novak (p.24) = Dr. L misdiagnosed Ps scans. P injured.
Hospital answered that Dr.L was independent contractor. Did Dr. L have
apparent authority; is hospital vicariously liable? Yes
i. Vicarious liability (based on apparent authority)
a. Representation by purported principal (hospital)
b. Reliance on that representation by a 3rd party (Roessler)
c. Detrimental change in position as a result of reliance on
that representation
II. THE NEGLIGENCE STANDARD p. 39-106, p. 106-128 (med mal)
B. The Central Concept
i. The Standard of Care
1. The Reasonable Foreseeability Test
A. Adams v. Bullock (p.39) = P swung wire; hit trolley line; injured. Do
trolley lines constitute unreasonable risk, hence negligence? No (NY Ct
Appls reversed jury who has found in favor of P: no reasonable jury could
find this way)
i. Ordinary caution did not involve forethought of protecting wires
ii. Only duty = adopt reasonable precautions
B. Braun v. Buffalo General Electric Company (p.41) = wires exposed in
city lot. P injured years later. Should D have foreseen risk? Yes (reversed
and remanded for jury to decide facts)
C. Greene v Sibley, Lindsay and Curt Company (p.42) = P stumbled over
mechanics foot in store. P sued mechanic and store. Did P establish Ds
negligence? No
i. Extraordinary provision could have prevented accident, but not
ordinary
ii. Difference is foreseeability
2. Adding an Economic Theory to the Foreseeability Test

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A. US v. Carroll Towing Company (p.43) = Bargees absence caused
damages to boat. Is D liable for not having bargee aboard? Yes
i. Hands formula for standard of care:
a. Duty exists if: Burden < (Probability * Loss); breach in
duty = negligence
b. Posners Economic Thesis of Negligence = go with
lower cost (B or PL)
c. Pros
1. Weighing factors allows for proper investment
2. Standardized approach
3. Used to combat hindsight bias (of course you
shouldve had a bargee aboard)
d. Cons
1. Variables are difficult to measure (compare cost
of warning sign to cost of losing a child)
2. We are asking a question with inherent hindsight
bias
3. Information costs of learning these factors
ii. The Reasonable Person Standard
1. External and Objective (acting in good faith is NOT good enough)
A. Superior Attributes (intelligence, memory, perception, knowledge or
judgment) = WILL be held to that standard
2. Why Use the Reasonable Person Standard?
A. Administrative ease (alternative requires more fact finding and be
subjective)
B. Alternative would allow ease of fraud/deception
C. Deterrence
D. Gives public assurance of community norms
E. Juries charged with fair, non-arbitrary, non-discriminatory standard
3. Common Carriers
A. Bethel v. New York City Transit Authority (p.49) = P hurt on Ds bus
when seat collapsed. Before this case, if injured on common carrier,
carrier usually found strictly liable. Should D have taken utmost care as
was required by common carriers? No (not as dangerous now)
i. Shouldnt have utmost care for common carriers
ii. Everyone should be held to the same reasonable person standard
iii. Issue of constructive notice whether the inspection would
have led to the discovery and repair the chair before the accident
depended on the highest standard of care, so the verdict based on
constructive notice cannot stand
4. Mental Deficients - must be held to the same standard (as opposed to not acting
in their capacity for best judgment)
A. Vaughan v. Menlove (p.55) and Rashi v. Wodarz (p.56)
i. Hard to draw line b/w mental deficiency and having a bad day
ii. Hard to prove mental deficiency
iii. Mental defectives should pay

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iv. Care-givers should look after them
5. Physical Disability no degrees of incapacity; either your disability completely
takes away your capacity (no liability) or it doesnt (liability)
A. Roberts v. Ramsbottom (p.55) D failed to appreciate significance of 2
mishaps on road before accident and shouldve recognized physical
problem.
6. Children
A. Parents can only be held vicariously liable under statute for their childs
actions but can be held negligent for allowing their childs actions to
happen.
B. Mastland, Inc. v. Evans Furniture, Inc.
i. What was the capacity of that child? (subjective)
ii. THEN, How would a reasonable child of like capacity have
acted? (objective)
C. Children can be held to adult standards when engaged in adult
activities.
7. Emergency doctrine
A. Levey v. DeNardo (p.59) D rear-ended P when having to brake in an
emergency situation
B. Some courts say that the reasonable standard doctrine already includes
the circumstances of an emergency situation
C. The Roles of Judge and Jury
i. In General
1. Jury
A. Determines facts
B. Weighs credibility of witness
C. Draws inferences from evidence
D. Evaluates conduct (synthesizes everything to make a decision)
E. Pokora v. Wabash Railway Co. (p.62) = P killed by train with partially
obstructed view of oncoming train. Crossing was in populous city; view
obstructed by Ds rail cars. Is it a question for jury to decide reasonable
care? Ct (Cardozo) says yes
i. Gives jury final saywhy rule this way?
a. Standards>Rules
b. Rules arent adequate for different situations
c. Allows for judgment when fact patterns differ slightly
(not overruling Goodman b/c P might have been
contributorily negligent)
d. Politically safer (if elected judge)
F. Adams v. United Airlines, Inc. (p.65) = P hit with briefcase while
opening overhead compartment. Sued D: injury was foreseeable yet D
didnt prevent it.
i. Jury could find for P since netting installments nor passenger
inconvenience would be too $$$ or inconvenient
ii. Was before Bethel (which overturned utmost care for common
carriers and which used NY law instead of CA law)

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2. Judge
A. Determines legal duty and applicable standard of care
B. Probative v. prejudicial (whether evidence should be presented to the
jury)
C. Sufficiency of evidence
D. Instructs the jury
E. Baltimore & Ohio Railroad Co. v. Goodman (p.60) = P killed by train
he couldnt see while driving @ crossing well known to him. Ct (Holmes)
says driver knows about danger; crosses @ own risk; should get out of car
and listen for train before crossing.
i. Gives judge final saywhy rule this way?
a. Rules>standards
b. Establishes an expected level of conduct
c. Possible judicial subsidy of RRs?
d. Suspicion of juries?
ii. The Role of Custom
1. Why defense would use custom (D followed custom; P was injured claims
there was a safer alternative to the customshould not use custom below
reasonable prudence)
A. D can claim to have exercised due care by using custom
B. P may not be able to show that D was reasonably aware of safer
alternative to the custom
C. If current custom has high fixed costs, courts may be weary of large
social impact of overturning such custom
2. Why plaintiff would use custom (D did not follow custom; P injured claims D
should have followed custom)
A. Establishes well known safety precautions taken by industry and that D
fell below them
B. Trimarco v. Klein (p.68) = P fell through thin glass when tempered
glass is customary. Tr jury for P. App Div reversed (D had no notice of
danger via P or others). Ct Apls reversed: jury should decide if D failed to
act using ordinary care
3. Customs ONLY apply to their purpose
A. LaVallee v Vermont Motor Inns (p.73) = Even if P can show that noncustom would be safer, b/c its not a custom it will not be used
B. Levine v Russell Blaine Company (p.73) = Custom of smooth rope in
dumb waiter not used (rough rope). If custom was for safety = custom
admissible. If custom for speed/other reason = not admissible.
iii. The Role of Statutes (that are silent on civil liability)
1. Statutes as prima facie negligence:
A. Martin v. Herzog (p.74) = P (no lights) hit by D (driving in center of
road). Statute = must drive buggy w/ lights on. Tr ct jury instruction =
could consider statute, but was not conclusive evidence. Ct Apls =
violation of statute is prima facie contributory negligence
2. Unless one of these exceptions:
A. Emergency (have to act differently b/c of emergency situation)

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i. Bassey v Mistrough (p.80) = P fixing broken-down car couldnt
be lit and was hit by Ds car
B. Necessity (to avoid harmful situation)
i. Tedla v Ellman (p.77) = brother and sister hit from behind by
Plaintiffs car (violating statute on walking with traffic and not
against)P not contributorily negligent b/c it was necessary to
avoid traffic
C. Incapacity (children excused)
3. Statutes that were never properly published and thereby result in no criminal
liability do not automatically excuse civil liability
A. Clinkscales v. Carver (p.76) = D liable for running stop sign and
crashing into P even though ordinance that caused stop sign to be erected
was never published properly
4. Statutory Purpose Doctrine = Statutes can only be used to establish civil
liability when harm that they were designed to create occurred; cannot be used for
other harm
A. De Haen v. Rockwood Sprinkler Co. (p.81) = Radiator placed on edge
of shaft fell and killed workman. Statute required barrier around shaft
opening to prevent men from falling in. Other objectives, such as this type
of harm, might also have been the intention. Court uses common sense to
say yes and hold liable.
5. Licensing statutes = have not generally been used to set standards of care; not
having required skill is negligence; disclosing statute violation to jury could make
them prejudicial
A. Brown v. Shyne (p.83) P hurt when D performed treatment only
licensed physicians could perform. Ct held D to physicians standard, but
did not tell jury about violation of statute.
i. Violating a statute is NOT prima facie negligence
a. Violation doesnt per se establish causal relationship b/w
violation and Ps injury
ii. Regardless of your having a license, you must prove you acted
to a reasonable standard
B. Just b/c you follow statutes (even Fed), doesnt mean youre immune
from liability (had to foresee potential dangers)
D. Proof of Negligence
1. Burden of Proof = Burden of Production + Burden of Persuasion
A. If P carries Burden of Production = prima facie case (sufficiency of the
evidence as a matter of law)
B. P has carried the Burden of Persuasion = jury is convinced by a
preponderance of the evidence (matter of fact)
2. Constructive Notice Theory
A. Negri v. Stop and Shop, Inc. (p.86) = = P fell on dirty, broken baby food
jars in Ds store. P established a prima facie case by Constructive Notice
(no proof, just gets to jury).
i. Actual Notice
a. D saw defect

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ii. Constructive Notice = Defect must be:
a. Visible and apparent; and
b. Must exist for a sufficient time for D to remedy
B. Gordon v American Museum of Natural History (p.86) = P slipped on
waxy paper. No evidence of paper being there for sufficient time. No
Constructive Notice.
3. Business Practice Rule = response to proliferation of self-serve establishments
A. Kelly v. Stop and Shop, Inc. = P slipped on wet grimy piece of lettuce at
Ds self-serve salad bar. No actual or constructive notice required b/c
continuous and foreseeable risk to customers is apparent.
4. Res Ipsa Loquitur
A. Requirements
i. Act is one that could not happen without negligence
ii. Caused by instruments exclusively in Ds control
iii. No negligence on part of P
B. When is it used?
i. Object should be contained/stationary but escapes
ii. Object is supposed to move but takes an unexpected course
iii. P suffers injury in Ds custody (object identification is moot)
C. What is the result?
i. Jury is permitted (not required) to find D negligent
ii. Usually smokes out Ds evidence, but D is not required to
provide evidence (except in CA)
iii. Burden of disproof is shifted to D
D. Procedural implications
i. Permissible inference rule: (jury is permitted but not required to
find the defendant negligent) the plaintiff still has the burden of
convincing the jury to draw the inference
ii. Presumption rule: the defendant must present some evidence in
rebuttal in order to even get to the jury
5. Res Ipsa Loquitur Cases
A. Byrne v. Boadle (p.90) = flour barrel fell from Ds shop and hit P
B. Object thrown out of hotel room cases
i. Larson v. St. Francis Hotel (p.91) = P struck by chair thrown out
of hotel window. Court held that D couldnt police every room.
ii. Connolly v. Nicollet Hotel (p.92) = P lost an eye when hit by an
object thrown from a room. Court held D liable b/c D had
circulated a memo about the out of control convention and stated
that management would wait it out.
C. McDougald v. Perry: Spare tire fell from Ds tractor and hit Ps car, &
the chain that attached the tire to the tractor was no longer available. Res
ipsa upheld.
D. Ybarra v. Spangard (p.99) = Ps neck was injured during appendix
surgery. Multiple doctors operated. All doctors held severally liable.
E. The Special Case of Medical Malpractice

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1. The plaintiff must prove: 1) The relevant recognized standard of medical care
exercised by other physicians, and 2) that the defendant departed from that
standard when treating the plaintiff
2. Expert witnesses are usually necessary because of the technical complexity of
the facts and issues
A. Sheeley v. Memorial Hospital (p.107) = Tr Ct says expert overqualified;
cannot testify. Sup Ct overrules: anyone with knowledge and relevant
credentials can testify
i. Strict Same Locality Rule (1950s-1980s)
a. Pros
1. You are held to the same standards as those around you
2. Why practice in a rural area if you are held to urban
standards anyways? This would drive docs away from
rural. We need to maintain Public Health Standards.
b. Cons
1. Cant always find someone
2. Conspiracy of Silence = colleagues wont testify against
each other
ii. Similar Locality Rule expert from a similar community can testify
iii. National Standards = being attacked by a counter-revolution in favor of
going back to similar locality.
3. Using Res Ipsa Loquitur in Medical Malpractice Case
A. Sides v. St. Anthonys Medical Center (p.115) = P alleges res ipsa
loquitur b/c of e.coli infection as surgical site and needs to rely on expert
testimony. Court held that testimony is allowed as inference of res ipsa to
jury.
B. Results of Res Ipsa in Med. Mal.
i. Required for Jury = without an expert, jury cant know that the
act wouldnt have occurred without negligence
ii. Can compel the negligent party to come forward if P was under
control of multiple doctors
iii. Can become a war btw the experts
4. Informed Consent as part of Med. Mal.
i. Procedure, Instruments (what youre doing)
a. Must mention invasive and non-invasive
ii. Risk of doing versus not doing the procedure
iii. Medically reasonable alternatives
A. Matthies v. Mastromonaco (p. 119) = D prescribed bed rest for 81
yr.olds broken hip instead of surgery (riskier b/c of her porous bones), but
knew bed rest would likely mean loss of independence.
i. Tr. Ct. said no liability b/c bed rest was non-invasive & Informed
Consent subsumed under Med Mal claim.
ii. NJ Supreme Ct. held informed consent could be a separate med
mal claim, and determined:
a. Professional Standard (NY) = what would a reasonable
physician have disclosed?

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b. Reasonable Patient Standard (NJ) = would a reasonable
person have regarded this info as important?
III. THE DUTY REQUIREMENT: PHYSICAL INJURIES p.129-217
A. Introduction
1. Duty is an obligation to act (or refrain from acting - nonfeasance) (misfeasance
is acting negligently)
2. Policy for invoking duty
A. Pro
i. Want people to save others (baby on the tracks)
B. Con
i. Administrative ease
ii. Slippery slope
iii. Personal autonomy
3. Rule: In absence of a special relationship, parties do NOT owe a duty to take
affirmative actions to help others. A special relationship establishes a duty b/c:
A. The ability of the injured party to protect himself is compromised and
the other person can better protect him
B. Both parties entered into the special relationship voluntarily.
C. The party on whom the duty is placed benefits from the special
relationship (often economically).
B. Affirmative Obligations to Act
1. Harper v. Herman (p.131) Boat owner didnt warn Harper, who jumped into
shallow water. Injured. Duty to warn?
A. Rule = No affirmative duty to warn.
B. No relationship b/w parties.
C. Harper not deprived of opportunity to protect himself.
D. Harper did not announce his intent to jump.
2. Exceptions to the no duty to rescue rule
A. Special relationships places control over another person (dependence,
custody)
i. Randi W. v. Muroc Joint Unified School District (p.142) - Def
School Dist. placed good refs on file for sex deviant. In new job,
which relied on those refs, deviant sexually assaulted student.
Student sued school dist. Duty to disclose?
a. Foreseeability and causality = yes
b. Moral blame = issue for jury
c. Availability of insurance or alternative courses of
conduct
1. Business liability insurance for neg. misrep but
not fraud
2. Full disclosure letter or No Comment letter
d. Public policy considerations:
1. Statute protection from defamation for writing
full disclosure letter

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2. Misleading misrepresentation? YES b/c of
unreserved praise + lack of disclosure = truth
representing whole truth
3. Reliance? YES, hiring based on LoR
ii. Tarasoff v. Regents of the University of California (p.151) =
Podar confided in psychiatrist that he was going to kill Tarasoff.
Podar detained, released, killed Tarasoff. Duty to warn? YES
a. Special relationship (patient-psychiatrist).
b. Foreseeable. Knew danger to identifiable potential
victim.
Arguments against a duty:
a. Confidentiality/harm to therapist-patient relationship
b. Inability of therapist to predict violence
c. Concern that therapists wont treat violent patients
d. Line-drawing
iii. Doctor-Patient Relationship Rule Further Rulings
a. Tenuto v. Lederle Laboratories (p.158) = Court expanded
to include parents of infant b/c of triangulation of special
relationship
b. Bellah v. Greenson (p.159) = Court declared no duty for
harm to oneself as opposed to harm to third parties.
c. Thompson v. County of Alameda (p.159) = Court denied
a duty b/c there was no identifiable potential victim.
B. Undertakings see Farwell v. Keaton
i. Farwell v. Keaton (p.136) - Farwell beaten. Siegrist, drunk, gave
ice, left Farwell in car. Farwell died.
a. Is a duty to aid; jury found:
1. Special Relationship existed (companions - social
venture). You expect your social companions to
come to your aid - Nonfeasance
2. Undertaking Rule - Knew of Farwells plight, but
botched the rescueSiegrist could have cut off real
helps opportunity (1. Required to finish helping
once started, 2. Leaving off rescue left decedent in
worse state than before) - Misfeasance
b. Dissent
1. Two Issues are for the court, not the jury:
A. Should Siegrist have foreseen need for
immediate medical attention?
i. Siegrist did not knowshould
have?
B. Does D/P relationship impose affirmative
duty?
i. No
c. Undertaking Rule
1. Duty exists if:

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A. Good Samaritan increases the risk of
harm; OR
B. Others rely on actors undertaking
2. You have a duty to:
A. Continue due care obligations once you
start
B. Not make things worse (why Good
Samaritan Laws protect you from liability)
d. Compare Ronald M. v. White - Minors w/o drugs did not
restrain driver who neg. injured others = no duty.
1. There is no affirmative act here
2. No custodial situation (like Farwell impaired and
w/i Siegrists custody)
3. Contrib. neg. (here = getting in the car
voluntarily)
C. Non-negligent injury
i. Union Pacific v. Cappier (p.135) = After innocent injury, no duty
to follow up on well-being
ii. Maldonado v. Southern Pacific (p.135) Butif you know of
impending plight and dont act duty
D. Non-negligent creation of risk
i. You dont change the risk = no duty (Menu v. Minor, p.135)
ii. Subsequent Realization of the risk = duty (Tresemer v. Barke,
Simonsen v. Thorin, both p.135)
a. Now you know about something within your legal
control
E. Statutes
i. Uhr v. East Greenbush Central School District (p.161) =
Education statute says must test kids for scoliosis. D did not. Duty
to test, would breach of statute subject D to a private right of
action?
a. No special relationship b/w school/child
b. No duty (Sheehy Test):
1. Whether P is in class the statute meant to benefit
A. Yes: kid in school
2. Whether recognizing private right of action
would promote legislative purpose? [Why]
A. Yes: risk of tort liability would encourage
compliance
3. Whether creation of right consistent w/ legislative
scheme [How]
A. No: Statute has its own enforcement
(commissioner can withhold school funding
for noncompliance)

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B. No: Statute bars liability for misfeasance;
incongruous to impart liability for
nonfeasance
C. Policy Bases for Invoking No Duty
1. No Contractual or Special Relationship
A. Strauss v. Belle Realty Co. (p.168) = P sued landlord and ConEd for
falling down unlit stairs in basement (common area). ConEd duty?
i. No duty because no contractual/special relationship
a. Proposed enlargement of Zone of Liability would
unduly extend liability to unknown, unidentifiable group
inside apt, hallway, common area, steps, etc.
b. Dissent: 1. ConEd could reduce return on stocks, raise
rates, spread liability (P cannot); 2. Denying recovery is
unfair; 3. Should remand to see if enlarging the Zone would
result in catastrophic probabilities
B. The Moch case (p.175) = Fire case where hydrants have inadequate
water supply and homes burn down
i. Few states allow recovery b/c allowing it would make water
unreasonably expensive
ii. Contract relationship required for duty for nonfeasance
iii. Moch plaintiffs probably have homeowners insurance
2. Social Hosts
A. Reynolds v. Hicks (p.176) = Minor drunk @ wedding, drove, hit P. P
sued marrying couple for providing alcohol. Duty owed? No.
i. Social hosts not as capable at handling responsibility as are
commercial hosts
ii. Implications to social hosts are wide-sweeping and
unpredictable
iii. Parent exception to serving minors being illegal indicates no
statute intention to allow third parties to recover.
3. Negligent Entrustment
A. Vince v. Wilson (p.182) = Relative gave $ to P to buy car. Relative,
salesman, and owner of dealership knew: no license, failed drivers test,
alcohol/drug abuse. P injured D in accident. 3 parties ARE liable to P
i. Use reasonable care w/ dangerous things to prevent harm to
others via a 3rd party
a. Uses control, special relationship, foreseeability
(misfeasance only, no nonfeasance)
B. Peterson v. Halsted (p.185) = Def father gave daughter $ for car, who
got in drunk driving accident 3 years later. Duty? No, b/c accident
happened 3 years after D gave $
D. The Duties of Landowners and Occupiers
1. Landowners and Visitors
A. Carter v. Kinney P slipped on ice @ D home for bible study (signed up
@ church). What duty owed?
i. Three Categories

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a. Trespasser = no duty
b. Licensee [HERE] = duty to make safe dangers landpossessor knows of
c. Invitee = duty to protect against known danger and those
that would be revealed by inspection
ii. Why keep these categories?
a. Privacy = a persons home is their castle, and a residence
should only be as safe as the owner would make it for
himself
b. Pub Pol = landowners may incur undue costs in
protecting their home
B. Heins v. Webster County (p.194) = P slipped on ice @ Ps hospital. D
says licensee (visiting daughter). P says invitee (coordinating plans to play
Santa). Abandon licensee/invitee categories?
i. Yes, b/c:
a. Status of entrant shouldnt define duty (licensee isnt less
worthy of care)
b. Eliminate harsh, complex, unpredictable law
c. Hospital already had burden of protecting invitees on
premises (no added burden)
d. Note: Rowland abolished the trespasser category, though
statute distinguished flagrant trespassers from regular
ii. Anti-abolishing categories
a. Predictability
b. Harshness of categories lessened by exceptions
c. If each case is decided on facts, landowners would be
less able to guard against risks
d. Ct could create liability where the law creates none
(Fahrnbruch dissent)
iii. New factors to consider
a. Foreseeability of injury
b. Purpose of entry
c. How entered
d. Use of premises
e. Reasonableness of warning
f. Ability to warn
g. Burden of warning
3. Landlord and Tenant - Landlords are usually insulated from liability, except for
a few situations:
1) If the injury is attributable to a hidden danger that the landlord knows
about but the tenant is unaware
2) The premises are leased for public use
3) The premises retained are under landlords control (i.e.: common
stairways)
4) Premises negligently repaired by the landlord
4. Businesses Duty to Protect Customers from 3rd Party Criminal Acts

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A. Posecai v. Wal-Mart Stores, Inc. (p.204) = P robbed in Sams parking
lot during store hours. No lot guard. Nearby area is high crime. Few past
offenses; lot not high crime. No other nearby businesses employed guards.
Duty to protect its customers from 3rd party criminal acts in parking lot?
i. No duty. Only duty to protect from foreseeable risks.
Foreseeability tests:
a. Specific Harm Rule
1. No duty unless aware of specific harm
b. Prior Similar Incidents Test
1. Evidence of part crimes on/near premises = could
be duty
c. Totality of Circumstances Test [most common]
1. Evidence of part crimes on/near premises AND
shouldve known that crime was foreseeable =
could be duty
d. Balancing Test [Ct chooses this one]
1. Balances foreseeability w/ burden of protection
2. HERE = slight risk low foreseeability no
duty (reversed)
IV. NON-PHYSICAL INJURIES p.260-332
A. Emotional Harm p.260-298
1. Reasons to deny recovery:
A. Lack of notice negligent P could not anticipate normal persons
suffering physical symptoms of fright
B. Fraud
C. Floodgates
2. Physical Impact Rule puts D on notice that injury occurred
A. Falzone v. Busch (p.260) = Car struck husband. Wife in car, saw injury,
became ill (fright and saw husband hurt). Sued neg. driver.
i. Relationship btw fright and injury now more substantiated
ii. Should consider new question of duty
iii. Rules of evidence provide safeguard against fraud same as in
other types of personal injury cases
B. R.J. v. Humana of Florida, Inc.: P negligently diagnosed as HIV
positive by D until re-test 18 months later.
i. Physical Impact Rule pretty much disappeared
ii. No duty unless treatments or injections caused physical injury
3. Zone of Danger Rule Requires the possibility of immediate traumatic harm
(somewhat larger scope than Physical Impact Rule)
A. Metro-North Commuter Railroad Company v. Buckley (p.268) = P
exposed to asbestos, feared cancer. No disease yet. Stayed at job.
i. Recovery only if possible immediate harm
ii. Exposure does not constitute physical impact
iii. Common law has denied recovery sans symptoms/disease

15
iv. Only evidence was Ps testimony and Ps behavior was
inconsistent with alleged fear of cancer (fraud, floodgates)
B. Pub Policy for Need physical injury for recovery
i. Clogging the courts
ii. Bankrupting defendants
iii. No $ left for truly sick people
iv. Fraud/difficulty of determining real fear
C. Norfolk & Western Railway v. Ayers (p.274) = Workers suffering from
asbestosis, a non-malignant respiratory disease, asserted FELA claims for
emotional distress at the prospect that they might contract cancer in the
future
i. Court allowed for recovery if they could prove their fear was
genuine and serious
D. Potter v. Firestone Tire and Rubber Co. (p.274) = Toxic waste exposed
Ps to known carcinogens over time. Fear of cancer can be recovered only
where proves that:
i. As a result of the defendants negligence, the plaintiff is exposed
to a toxic substance which threatens cancer, and
ii. The plaintiffs fear stems from a knowledge, corroborated by
reliable medical or scientific opinion, that it is more likely than not
that the plaintiff will develop the cancer in the future due to the
toxic exposure, and
iii. Plaintiff has a serious fear.
E. Johnson v. Jamaica Hospital (p.289) = Baby kidnapped from hospital
that kept baby for treatment. P parents claim emotional distress. NO duty
b/c:
i. No visibility
ii. No zone of danger
F. Portee v. Jaffee (p.280) = Mother watched child die trapped in elevator
door. No risk to parent (Falzones fright requirement). Emotional
distress resulted. Liable when no risk of injury to P? Yes, Dillon/Legg
factors (first 3, ct adds 1):
i. Proximity
ii. Visibility
iii. Relationship
iv. Severe emotional injury
*See pages 287-289 for claims for unmarried couples.
4. Corpses/Death Exception to Physical Impact Rule
A. Gammon v. Osteopathic Hospital of Maine, Inc. (p.276) = P thought he
got remains of dead dad. Actually got others severed leg. Emotional
distress resulted. Liability?
i. Requirement for Physical Impact is arbitrary b/c of vulnerability
of decedents family and special relationship P had with hospital
B. Johnson v. State (p.279) = Telegram incorrectly telling P of her
mothers death.
5. Negligent Interference with Consortium

16
A. P believed he would have future relation w/ victim (advice, counsel,
sexual attention, companionship, assistance)
B. Usually child/parent (allowed by minority of states) and spouses
C. Claims = derivative (D MUST be found neg)
B. Economic Harm p.298-319
1. Type 1 Third Party Negligent Misrepresentation: D is negligent in providing
some service (auditing, legal, architectural, for example) to a 3rd party and as a
consequence of this negligence, the P suffers economic loss.
A. Usually a business context
B. Usually a lack of a contract between the parties
C. Can be issues with SoL or pecuniary damages
D. Nycal Corporation v. KPMG Peat Marwick LLP. (p.299) = D
misrepresented info in financial statements prepared for Gulf. P relied on
Gulfs statements, purchased stock, stock plummeted. P sued D for neg
economic harm.
i. How should duty of D be addressed since P not in privity?
Possible tests:
a. Foreseeability Test (liable to any foreseeable reliers)
1. Liability to expansive group
2. Maybe Gulf caused neg, not D
b. Near-Privity Test
1. 3rd party relies on info
2. Knowledge of intended reliance
3. Conduct providing a link to the 3rd party
c. 552 Restatement Test [ADOPTED HERE]
1. Knowledge of a limited group of reliers that
includes P (want identified recipient)
2. Knowledge of a specific transaction the info is
designed to influence (NY law = similar transaction
ok)
2. Type 2 - Creation of Dangerous Condition: D creates a dangerous condition or
causes physical harm to a third party and as a consequence, P directly suffers
economic harm even though there is no third party beneficiary relationship.
A. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.
(p.310) = Two economic harm actions involving partial building collapse
that caused local businesses to close and thereby lose profits. No duty b/c:
i. Economic Loss doctrine:
a. Difficulty to determine scope of potentially massive
liability
b. Defendant still faces property/physical damage liability
c. 3rd party economic losses distributed among large groups
of people who can experience some loss
C. Wrongful Birth and Wrongful Life p.319-332
1. Wrongful Birth = Med mal claim brought by parents of a wanted child that is
born with a defect. Allegation is parents were denied chance to make a

17
meaningful decision on whether to abort fetus (the child itself is the injury).
Three theories of liability:
A. Failure to inform parents of risk of conceiving child with genetic
defects
B. Failure to perform prenatal diagnostic testing;
C. Failure to report results of diagnostic testing accurately.
2. Wrongful Life = Med mal claim brought by genetically-impaired child.
Allegation is that, but for the doctors negligence, the child would not have been
conceived or born. NOT a claim that doctors negligence caused defect. 2
theories:
A. Failure to recommend tests for determining risk of conceiving child
with birth defects
B. Failure to recommend or perform prenatal testing.
C. Public Policy:
i. Courts reluctant to recognize claims b/c they dont want to
evaluate nonexistence versus existence with congenital defects
(CA, CO, NJ, WA = allowed claims)
3. Wrongful Pregnancy = Traditional med mal claim for failure to use due care in
performing sterilization, leading to unwanted pregnancy. Allegation is that
doctors negligence caused a child to be born. Distinguished from wrongful birth
because here, the pregnancy and delivery are the wrong, not the child.
A. Emerson v. Magendantz (p.320) = P-couple decided no more kids. Wife
= surgical tubal ligation. Wife became pregnant, kid born defected (not by
D neg.). Duty? Yes, if you can overcome causation.
i. Damages schemes
a. Limited Recovery [ct chose this one]
1. Medical expenses of failed procedure
2. Medical and hospital costs of pregnancy,
prenatal, delivery, and postnatal care
3. Expense of subsequent procedure
4. Loss of wages
5. Emotional Distress (only if unhealthy baby)
6. Handicapped costs (offset by govt money)
7. Loss of spousal consortium
b. Full Recovery w/ benefit offsets
1. All of above + (cost of child rearing) - (benefits
of child)
c. Full Recovery w/o benefit offsets
1. All of above + (cost of rearing a healthy child)
V. CAUSATION p.333-384, p.393-432
A. Cause in Fact p.333-384
1. Three general requirements in toxic substances cases:
1) Exposure
2) General causation: is the agent capable of causing disease in the human
population?

18
3) Specific causation: did the agent cause this plaintiffs disease?
2. The But-For Test: But for Ds negligence, P would not have been injured.
A. Stubbs v. City of Rochester (p.334)
i. Def contaminated water. P contracted TF. Ps work/home = only
this water. But9 causes of TF. 3 docs concur: contaminated
water TF here. Lots of others got TF from this contaminated
water. Cause in fact?
a. Yes (enough to survive dismissal). Reasonable certainty
= Ds neg was direct cause of injury. But for Ds neg, P
would not have been injured.
i. D says P needs to show:
1. Water caused disease
2. No other causes
ii. Ct says no. Too burdensome to eliminate other
causes.
3. Probabilistic recovery for future harm
A. Simmons (p. 339): adopts a 2-disease rule
i. no recovery for enhanced risk; recovery only when anticipated,
more serious disease occurs
B. Mauro (p. 340): allows present recovery
i. P must show reasonable medical probability exists that disease
will develop to get full damages
C. Dillon (p. 340): allows recovery for increased risk of future harm
i. Present probabilistic recovery, no apparent threshold
4. Substantial Factor Test (p.342)
A. But-for is required BEFORE substantial factor
i. Why use it?
a. If multiple significant causes (i.e. 2 neg-set fires reaching
home at once), but-for doesnt reach the proper outcome
(neither is but-for)
1. Dont want to compensate P twice or none
b. Some causes so insignificant that they shouldnt count
and subject their sources to liability (2 neg-set fires, one an
hour later when the house was practically burned to the
ground already)
5. Frye Test: requiring that scientific evidence be based on techniques generally
regarded as reliable in the scientific community.
6. Daubert Factors
1) Whether the theory can be tested according to the scientific method;
2) Whether the theory has been subjected to peer review/publications;
3) The known or potential error rate;
4) Whether the theory is generally accepted in the field.
A. Zuchowicz v. United States (p.343) = D-doctor neg directed P to ingest
> max dose of meds (Danocrine). 4 mo. Later, P = disease. P became
pregnant, disallowing necessary transplant, died post-pregnancy.
i. Allow expert testimony?

19
a. Yes. 2 docs allowed to testify that reasonable medical
certainty and more likely than not = Danocrine caused
PPH.
1. Daubert Test (2-4 = flexible):
A. Satisfied.
2. Was Danocrine but-for cause of illness/death?
A. Yes (here yes; ultimately could be),
based on experts
3. Ct employed the substantial factor test after
but-for analysis failed
A. When a negligent act increases the risk of
the harm, that is enough to provide an
inference of causation.
B. Where a strong causal link exists, it is up
to the negligent party to rebut by showing its
wrongful conduct was not the substantial
factor.
7. Loss of Chance Claims
A. Justifications:
i. Life is precious and loss of even a small chance of cure deserves
compensation;
ii. Negligence against patients with poor prognoses shouldnt go
unredressed;
iii. Unfair to deny recovery where uncertainty of outcome created
by D;
iv. Typically arises in failure to diagnose context.
B. Matsuyama v. Birnbaum (p.355) D doctor failed to run extra tests on
several occasions when P complained of stomach pain, several moles
forming, and met certain demographic criteria that made cancer more
probable.
i. Ct. held loss of chance as a theory of injury, not a theory of
causation.
ii. Reliable expert witness testimony more available in med mal
than other tort areas.
iii. Med mal that harms patients survival chances contradicts
optimal outcome for patient.
iv. Patients with less than a 50% survival chance can still obtain
optimal outcome, so all-or-nothing rule has shortcomings.
v. Without recognizing loss of chance, Ps would be forced to bear
consequences but less capable than D of preventing the harm.
vi. Calculating Damages:
Step 1: full wrongful death damage = $600K
Step 2: P had 45% chance of survival<med mal
Step 3: Ds negligence reduced chance to 15%
Step 4: Ps chance reduced 30% (45%-15%)

20
Step 5: Ps loss of chance damages are $600K x 30% =
$180K
8. Joint and Several Liability
A. Joint and severally liable means that plaintiff can sue defendants
separately or together and recover the extent of the damages against either
one; both responsible for the damage
B. Solvency of 1 defendant doesnt matter b/c plaintiff can recover full
amount against either defendant
C. The purpose for this rule is to prevent putting the cost of an insolvent
defendant onto an innocent plaintiff
i. The sued defendant, if paid more than his share, can assert a
contribution claim against the other defendant
A. Changes
i. Contribution
a. Right to be reimbursed by other Ds in proportion to their
fault;
ii. Comparative Negligence
a. Assessment of each persons fault
iii. Legislation
a. Abolish J&S completely
b. Abolish J&S where D1<50% at fault
c. Retain J&S except for emotional distress damages
d. Abolish J&S where P is partially at fault
e. Abolish J&S except for toxic/environmental torts
9. Multiple Defendants
A. Alternative Liability Theory (ALT)
i. Induces admissions/evidence by shifting burden to Ds
ii. Cts can shift the burden to Ds to disprove causation when:
a. >1 neg Ds1 responsible; AND
b. Traditional but-for analysis would immunize both Ds,
resulting in P being an innocent victim w/o relief
iii. Summers v. Tice (p.367) - P shot by 1 of 2 D. No proof of which
one hit him. Causation?
a. Yes. Both Ds J+S negligent. Burden is on both Ds to
absolve themselves.
b. Rationales for shifting burden of proof:
1.P is so close: able to prove 50% for each D
2.Fairness: both Ds were negligent; one clearly
responsible; conventional but-for analysis
immunizes both
3.Smoking out evidence: Ybarra??
4.P is innocent victim: so Ds should bear the loss
B. National Market Share Liability
i. Justifications:
a. Culpable defendants
b. Fungible product

21
c. Long latency period
d. Imposing liability in proportion to market share
approximates harm
e. Near optimal deterrence
ii. Problems:
a. But while the Ps recover, they are not necessarily
recovering from the D that injured them
b. Difficulty in finding evidence
c. Some Ds no longer exist
iii. Hymowitz v. Eli Lilly & Co. (p.372) - Ps injured by DES
ingested during mothers pregnancy. Ps unable to ID which drug
manufacturer D causes their specific injury. Problems?
a. SoL
1. Exposure SoL (So Repose) (3 yrs) = starts @
exposure time
2. Revival Statute (1 yr) = leg created, rebring
claims
3. Discovery SoL for toxics = start @ discovering
tort
b. ID-ing Correct Defendant (causation)
1. ALT induce admissions/evidence? No flushing
out evidence (no one knows more than others)
2. Concerted Action Theory? No (no collusion here)
3. National Market Share Theory? Yes
A. Use actual % share of market, not % of
Ds before the court
c. NY Approach
1. National market share (pp. 376-77);
2. No defense even if D can conclusively establish
that it didnt manufacture DES taken by P (p. 377);
3. Several liability only (p. 377)
iv. Limited Applicability of Market Share
a. Market share will generally work in cases of signature
disease and where product is fungible;
b. Need good sales data (individual D and market-wide);
c. Substantial segment of market has to be joined as
defendants.
B. Proximate Cause p.393-432
1. Harm-Within-the-Risk Test: D, through neg act, created a special risk that P
wouldnt have been subject to otherwise
A. Eggshell Plaintiff Rule: D is responsible for the entire harm caused by
his/her negligence, even if not foreseeable.
i. B. P had heart attack (history of heart disease) and died after car
crash of heart attack. Crash had increased the risk of such an
attack. Should jury be instructed on the Eggshell Plaintiff Rule?

22
a. Yes. Must take Ps as they are. Neg was proximate cause
of death and car damages.
b. Lack of foreseeability is irrelevant.
c. P was going to die anywaysdoesnt affect causation,
just mitigates damages
1. Ct should probably only return P to the state they
were in pre-accident
2. Awarding full damages would put P in a position
better than start
B. Secondary harm scenarios (Stoleson, Wagner, notes 7-8 on pp. 398-99)
2. Direct Consequences Rule: D acted negligently, and should thereby be held
liable for any of the resulting damage
A. Polemis (p.399): D dropped plank, causing unforeseeable spark, ship
destroyed.
i. Def knew of possible extent of damages, so liable (anticipated
type of damage not a factor)
ii. B/c Ds neg. directly caused damages, in absence of superseding
causes, D is liable for actions
iii. Unexpected results do not relieve neg. tortfeasor of their neg.
3. Foreseeability/Substantial Factor: we only ask people to behave reasonably, so
implicit in this standard is what people can foresee and, thus, prevent (fairness
principle)
A. Wagon Mound (p.402): P boat caught fire b/c D leaked flammable oil.
Liable? No = unforeseeable.
i. Foreseeability Test replaces the Direct Consequences Rule.
B. Limits of the Foreseeability Test
i. Intervening/Superseding act could break the chain of causation
ii. Fairness = must be an end to ones responsibility for ordinary
careless behavior
iii. Unforeseeable
a. Extent of harm = Benn (eggshell plaintiff doctrine)
b. Type/manner of harm = Polemis, Wagon Mound
c. Victims = Palsgraf
4. Intervening/Superseding Causes
A. Doe v. Manheimer (p.409): P raped behind Ds unkempt bushes in high
crime area. Was Ds bush a proximate cause of Ps rape?
i. Not but-for b/c no proof
a. Cant prove that rape wouldnt have occurred but-for the
bushes
ii. Not substantial factor, only intervening cause
a. This particular type and manner of crime was
unforeseeable
b. Restatement 2nd 442: D relieved from liability b/c the
harm was intentionally caused by the 3rd person and harm is
not within the scope of the risk created by the Ds conduct.
c. Rapist was superseding cause.

23
5. Unexpected Victims
A. Palsgraf v. Long Island Railroad (p.418): Man neg pushed on to train.
Fireworks in package fell, exploded, caused scales to topple, injury to P. P
sued railroad.
i. Ct. held that harm was not foreseeable, so no duty was owed.
ii. No duty means ct. didnt have to even consider proximate cause.
6. Reoccurring fact patterns (p.427-430)
A. Rescue
i. Danger invites rescue (Wagner)
ii. Spontaneous and instantaneous actions, made under pressure of
an emergency situation entitle P to recovery from neg D
B. Time
i. Time is usually an intervening factor leading to no liability b/c
risk was not within the range of apprehension
a. Firman: Neg driving P hit kid, kid grew up, shot P
C. Fire
i. Destruction must be a natural and expected result of the action to
= liability
VI. DEFENSES p.433-489
A. The Plaintiffs Fault
1. Contributory Negligence: Failure of P to exercise reasonable care to protect
himself from harm
A. Total bar to recovery
B. Affirmative defense
C. Justifications:
i. Unfair to impose liability on D where P has also been negligent
we want P to have clean hands
ii. Administrative ease
D. Exceptions:
i. Safety statutes - when neg was breach of statute, P can ALWAYS
recover
ii. Recklessness - limits contrib. neg. of P to same level as D
iii. Last Clear Chance (LCC) = If neg. D has a last clear chance to
help a helpless P, P cannot be held contributorily neg. (not saving
makes D more blameworthy)
a. Arguments against LCC = doesnt make P any less at
fault
2.Comparative fault
A. 3 Types
i. Pure
a. P recovers percentage of Ds negligence, notwithstanding
seriousness of Ps negligence.
b. E.g., P collects 1% of her damages even if she is 99% at
fault.
c. See Uniform Comparative Fault Act, p. 440

24
ii. Modified 1
a. P recovers so long as her negligence was not as great
as Ds (P<D)
b. If the Ps negligence is greater than the Ds, contributory
negligence is a complete bar to recovery.
c. If Ps negligence is less than the Ds, P recovers exactly
what he would recover under pure comparative negligence.
iii. Modified 2
a. Plaintiff recovers so long as plaintiffs negligence was
no greater than Ds (P<=D).
b. If the Ps negligence is greater than or equal to the Ds,
contributory negligence is a complete bar to recovery.
c. If Ps negligence is less than the Ds, P recovers exactly
what he would recover under pure comparative negligence.
d. Section 668.3 of the Iowa Act (p. 443) is a Modified 2
system.
B. Policy questions in comparative fault
i. Pure vs. Modified 1 vs. Modified 2
a. P eats own fault
b. P < 50% at fault = recovery
c. P < 50% at fault = recovery
A = $200k
damages
B

Fault
5%
25%

50%

20%

Pure
($10k no
recovery)
.25*200k =
50k
.50*200k =
100k
.20*200k =
40k

UCFA = all parties J+S

(13.333k no recovery)

Hold all Ds J+S

Full recovery

Insolvent

Insolvent

(50/75)*200k=133.333k

(50/70)*200k=142k

(20/75)*200k=53.333k

(20/70)*200k=58k

2(d) = all parties share

insolvents burden
ii. Aggregation vs. non-aggregation of Ds fault
a. If yes agg, sum D faults (if P < D sum then yes recovery)
1. P should be able to recover
b. If no agg, P < each D for recovery of that Ds fault
1. D shouldnt be liable unless more @ fault than P
iii. Dealing with insolvency
a. J+S
1. Other D(s) make up the difference
A. If several Ds, extra amount can be based
on % of fault
b. Sev
1. P takes a loss

25
iv. Contribution
a. J+S or no?
1. Parties subject to J+S can always bring in other
Ds post-judgment or implead during trial
b. Indemnity all or nothing
v. Settlements
a. Mary Carter Agreements
1. Unethical policy reason for discouraging
selective settlements
2. B could agree to settle with A for low $ in
exchange for testifying falsely against remaining
Ds (here C)
3. Only works well in pro tanto approach (where P
can recover fully from D still in trial)or in UCFA
approach if B has low fault %
b. B cannot get contribution towards paying the settlement
from C
1. Trier of fact could find C not liable
2. After fault allocation, B can seek contribution
from C if B over-settled
c. Post-judgment, C cant get contribution towards paying
damages from B = UCFA 6
1. Max Amount of Cs liability
A. UFCA = (% fault)*(As damages)...here =
$30k
B. Pro Tanto (CA) = (As damages claim)
(settlement)here = $50k
2. Judges can limit Cs liability if A-B settlement is
large
vi. What conduct gets compared?
C. Fritts v. McKinne (p.452): P injured in one-car drunk-driving accident.
P died during reconstructive surgery.
i. Admit evidence of drug/alcohol abuse that got P into surgery?
a. Nomaybe relevant, but we want probative not
prejudicial [ct chose this]
1. Can do bifurcated trials 1 for neg and 1 for
damages
b. Yes
1. Drinking led to the negligence, so but-for
cause, but likely some intervening acts in between
2. Also, doesnt affect negligence, just affects
damages (life was worth less; he wasnt going to
live long anyways)
ii. Allow jury to consider comparative neg?

26
a. Nodoctor may not avoid liability for neg treatment b/c
patients injuries were originally caused by patients own
neg
3. Avoidable consequences
A. Failure to get medical attention of follow medical advice
i. Failure to mitigate limits recovery from Ds neg (causation
unaffected)
B. Hypo
i. P w/o seat belt = $200k damages from Ds neg crash (wouldve
suffered $20k anyways w/ belt) = $180k difference as a result of
not wearing belt
ii. States vary, but states w/ AC say this remaining $180k is
unrecoverable
4. Assumption of risk: P knew of risk as chose to proceed (as opposed to
contributory negligence in which P knew or should have known of risk)
A. Express Agreements P made agreement, such as signing an
exculpatory agreement, not to hold D liable for any negligence that might
occur
i. Arguments in favor of express assumption of risk:
a. Moral: people should be responsible for themselves
(individuals freedom of choice);
b. Cultural: some people prefer a fun life to a safe life;
c. Economic: allocating risk through K is efficient
ii. Policy arguments against exculpatory agreements:
a. Had consent to accept risk been freely given?
b. Had plaintiff accepted particular risk that led to injury?
c. Were there social/public interests involved?
Indispensable services?
iii. Hanks v. Powder Ridge Restaurant Corp. (p.459): P signed
exculpatory agreement at Ds snowtubing facility and was then
injured. Was summary judgment for D correct?
a. Court examined 6 Tunkl factors
1. Business is a type suitable for regulation
2. D is performing a service of great importance
to the public/practical necessity
3. Ds business open to the public
4. D has bargaining power
5. D uses standard adhesion contract, offering no
negotiation or insurance against negligence
6. P is placed under Ds control, subject to risk Ds
negligence.
b. Majority Opinion
1. Agreement was a standardized adhesion contract,
offered to snowtubers on a take it or leave it
basis, and without the opportunity to purchase

27
protection against negligence at an additional,
reasonable fee;
2. Ds had superior bargaining authority.
3. Ds invited the public generally to snowtube at
their facility, regardless of snowtubing ability;
4. Snowtubers were under the care and control of
the defendants as a result of an economic
transaction;
5. Ds (not recreational snowtubers), had the
knowledge, experience to maintain the snowtubing
runs in reasonably safe condition, and to guard
against the negligence of its employees/agents;
6. Ds were in a better position to insure against the
risk of their negligence and to spread the costs of
insurance to their patrons;
7. To uphold agreement would remove incentive to
maintain a reasonably safe snowtubing
environment;
c. Dissent
1. Business is a type suitable for regulation;
2. D is performing a service of great importance
to the public/practical necessity;
3. Ds business open to the public;
4. D has bargaining power;
5. D uses standard adhesion contract, offering no
negotiation or insurance against negligence;
6. P is placed under Ds control, subject to risk Ds
negligence.
B. Implied Assumption of Risk
i. Primary
a. D didnt breach a duty
b. No neg rather than defense to neg
1. Voluntary participation
2. Commonly appreciated danger
3. Risk inherent in activity
c. Murphy v. Steeplechase Amusement Co. (p.470): P
fractured knee cap on Ds The Flopper. Did P assume
risk through implication?
1. Yes, the P assumed an obvious risk. Risk has 2
components:
a. Magnitude of the harm
b. Nature of the activity
2. D didnt owe P a duty of care*
3. No evidence of neg
d. Davenport v. Cotton Hope Plantation Horizontal
Property Regime (p. 475): P used stairs in poorly lit

28
hallway, injured. Knew about poorly lit hallway. Was there
an implied assumption of risk by P?
1. No, factors:
A. P must have knowledge of dangerous
condition;
B. P must appreciate nature and extent of
danger;
C. P must voluntarily expose himself to the
danger.
2. P not contributorily neg as a matter of law.
3. Implied AOR is incompatible with contributory
neg. New trial ordered.
ii. Secondary
a. True defense
b. P knowingly encounters risk created by Ds neg
c. Firefighters Rule justifications:
Justifications across time:
1. Limited liability of land owners;
2. Firefighters, etc. assumed the risk because they
knew theyd encounter dangerous situations in their
work;
3. No duty owed by employer (workers
compensation)
d. Levandoski v. Cone (p.483): In pursuit off-property,
police officer injured by pursuing criminal (nonlandowner).
1. Firefighters rule apply here?
A. No b/c not on premises.
2. Proximate Cause?
B. Yes. Foreseeable injury and no right to
flee.
VII. STRICT LIABILITY p.507-530, p.551-610
A. Traditional Strict Liability p.507-530
1. Abnormally dangerous activities
A. 1st Restatement: Defined as involving risks that cannot be eliminated
by the exercise of utmost care and activities which are not a matter of
common usage
B. 2nd Restatement - Six factors:
1. Degree of risk;
2. Probability of harm;
3. Inability to eliminate the risk by the exercise of reasonable care;
4. The extent to which the activity is uncommon;
5. The inappropriateness of the activity to the area;
6. The extent to which the value of the activity to the community is
outweighed by its dangerousness.

29
C. The determination of abnormally dangerous is a question for the judge
D. Proliferation of Strict Liability Principles
1. Respondeat superior
2. Res ipsa??
3. Workers compensation statutes
4. Defamation, trespass, nuisance
5. Federal environmental statutes (i.e., Comprehensive
Environmental Response, Compensation, and Liability Act -CERCLA)
6. Products liability (sort of)
E. Reasons for Strict Liability:
i. Fairness
a. Activity ought to pay its own wayyoure in the best
position to remedy neg as the producer b/c you know more
about itthis ups the cost
b. The benefit owners gain justifies making the owner have
to pay more
ii. Deterrence
a. Incentives towards safety
1. But potential injurers likely dont gauge the
threat level of liabilityjust that liability exists
iii. Greater Accuracy
a. Juries/judges can and do get it wrong (neg D not held
liable for their neg)
b. Case where Ds neg is difficult/impossible to ascertain
(i.e. blasts where evidence is destroyed) adopt SL for a
set group of fact patterns
iv. Administrative Cost Savings
a. Adjudicating neg costs a lot, but SL saves time and
money
1. More bright-line rules, less standards for SL
2. Helps justify shifting this group of cases to SL
v. Activity Level Effects
a. Threat of neg D acts safer OR perform different
activities entirely (b/c SL is activity based, no fault based)
b. Leads to more efficient resource allocation among
activities if there are readily available alternatives
vi. Additional Research Incentives
a. Increases incentives to research to avoid neg behavior
b. If not for SL, we would all still have shattering glass a la
Trimarco
1. Butare these the right people to be doing this
research (like the landlord in Trimarco)do we
want to encourage this?
vii. More Loss Distribution

30
a. Under SL, injurers more likely to be large corps. than
victimsthus options to spread costs, buy insurance and
pass costs along to their customers
b. If a goal of tort law is spreading loss distribution, SL
helps us do this
E. Rylands v. Fletcher (p.507): D reservoir abutted P mine, flooded mine
accidentally. P couldnt show D neg.
i. If you bring something onto your land that, if it escapes is likely
to do mischief, you are liable for resulting damages
ii. Ct created specific and limited exceptions to neg
a. Dangerous and unusual (i.e. ultra-hazardous) activity =
SL
1. Degree of danger: more violent less proof of
neg.
2. Uncommon use: SL means increased research to
avoid liability
b. Some categories held to SL as a MoL (Restatement
520)
1. Water collected, explosives, pile driving,
fumigation, oil wells, factories polluting things
c. By 2d Restatement, abnormally dangerous activity
replaced ultra-hazardousD doesnt have to be @ fault,
but still liable
F. Losee v. Buchanan (p.513): defendants steam boiler exploded and was
catapulted onto plaintiffs land and through several of his buildings.
i. Ct rejects Rylands; early American states could not impose strict
liability at the expense of progress
ii. What about res ipsa?
a. Could have been caused by a lot of different things; is
this the kind of thing only happen because someone was
negligent; difficult as a res ipsa case; ct in Losee: we must
have factories
b. Arent we always dealing w/ new technologies to some
extent though
G. Sullivan v. Dunham (p.516): D landowner dynamited tree, blast hurled
wood off Ds land, killed P. D liable? Yes.
i. Pub Pol: Surrendering particular uses of your land is better than
depriving another of the use of their property entirely
ii. Notice = manner of blast isnt important (fault not at issue)
only activity at issue (but-for test)
iii. P showed direct injury (for consequential injuries, like
concussions, must show neg)
H. Indiana Harbor Belt Railraod Co. v. American Cyanamid Co. (p.520):
D chem. manufacturer transported chemical through Chicago; leak from
broken lid (no proof of who caused break); P rail yard fined $1M for spill;

31
sought recovery from D. Should shipper of hazardous chemicals be SL for
spill en route?
i. No, only neg b/c leak was caused by someones neg, not
manufacturers.
a. Chemical is widely used social benefit.
ii. Location change not really a possibility b/c of RR structure.
b. Strict Liability for Defective Products p.551-610
1. Theoretical Perspectives of Strict Liability:
A. Does not replace negligence law
i. Is often in addition or instead of
B. Potential advantages of strict liability over negligence:
i. Fairness?
ii. Deterrence?
iii. Greater accuracy
a. Worry that juries wont get negligence right
iv. Administrative cost savings
a. There wont be net savings b/c there will be more
litigation
b. But savings on the individual case
v. Promotion of research and development
vi. More extensive loss distribution
a. Spreading the cost
C. Privity = old standard (K of sale w/ retailer, so manufacturer free from
liability) (Winterbottom)
i. Caveat emptor
ii. Exceptions = products that could hurt anyonelike poison
(Thomas v. Winchester), scaffolding (Devlin), or coffee urn
(Statler)
iii. MacPherson v. Buick Motor Co. (p.551): D manufacturer failed
to inspect car. Wooden wheel spokes crumbed. P injured. Is
manufacturer liable to P and not just the seller?
a. Abrogates privity bar - manufacture something that could
harm someone liable
b. Pub Pol
1. Helps grow businesses safely
2. Shifts risky activities to where they can be
prevented w/ research, liability spreading
c. Cant use res ipsa loquitur here b/c D was not in
exclusive control of the instrumentality (the car).
e. Cars, like poisons, are inherently dangerous when out of
control
f. D standard = reasonable care
1. Maybe D just failed to inspect the wheel
g. P must still prove that D was at fault
D. Warranty law every product has an implied warranty of safety

32
i. Ryan v. Progressive Grocery Stores, Inc.: - Ps wife bought bread
from D. P ate bread that had a pin embedded in it.
a. Ct. created SL for implied warranty law.
ii. Uniform Sales Act (reversed caveat emptor for durable goods)
a. First SL (but still neg)
b. Held on to privity bar; could be disclaimed
c. Only k-law, not tort law
iii. Food Cases (non-durable goods)
a. Manufacturer of food can be held directly liable to
consumer (despite no consumer-manufacturer K)
b. Ct says warranty is implied; when breached liability
(like SL)
E. Strict Liability and Defective Products in General
i. Escola v. Coca Cola Bottling Co. of Fresno (p.557): bottle
exploded in Ps hand. Majority P allowed Res Ipsa recovery.
a. Traynors concurrence (finally got a court majority in
Greenman p.562)
1. Wouldve allowed recovery under strict liability
(not RIL). Why?
2. Deterrence and cost spreading
3. Changed relationship b/w consumer and
manufacturer nowadays
A. Consumers rely on manufacturer
4. Consumers inability to inspect; forced reliance
on manufacturer
5. Manufacturers aggressive marketing
A. Opacity of manufacturer marketing
makes it difficult to prove neg
B. Butmanufacturer shouldnt escape
liability b/c marketing has become more
complex
6. Manufacturer would be more disposed to being
safe b/c SL is more certain
A. Increased research, quality standards,
economic use of resources
C. Manufacturing Defects
1. Only category where SL remains
2. P must prove:
A. That the products defect departed from the manufacturers design
B. That the defect caused the injury
3. Hard for P to prove negligence
A. Often, little evidence remains
D. Design Defects
1. Plaintiff must meet:

33
A. Ordinary consumer expectations test: the produce failed to perform as
safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner;
Or,
B. Risk-utility test: the products design embodies excessive preventable
danger, such that the risk of danger inherent in the challenged design
outweighs the benefits of such design.
2. Soule v. General Motors Corporation (p.573): P is injured in car accident and
claims that design defect made ankle injuries more severe. SL?
A. GM and amici arguments for abolishing consumer expectations test (p.
576):
i. It defies definition;
ii. It focuses on the subjective, unstable and unreasonable opinion
of consumers instead of on the objective condition of products;
iii. Consumers dont know anything about how safe the products
they use can or should be made;
iv. The jury focuses on a particular consumer, component,
accident and injury instead of whether the product meets general
expectations.
v. Eliminates balancing of risks and benefits that are inherent in
any product design.
B. Ct. holds that the product was too complicated to use the Consumer
Expectations Test. The risk utility test should be used. The jury may
consider:
i. The gravity of the danger posed by the challenged design;
ii. The likelihood that such danger would occur;
iii. The mechanical feasibility of a safer alternative design;
iv. The financial cost of an improved design;
v. The adverse consequences to the product and to the consumer
that would result from an alternative design.
C. Ct doesnt address the problems of the test, which are:
i. In cases involving technical design choices for complex products
such as motor vehicles, the risk-utility test in effect asks jurors to
engage in a task for which they have no relevant expertise.
ii. Any complex product is a combination of many design choices
regarding safety, cost, attractiveness and functionality. But the
risk-utility test focuses on only one feature of the design.
3. Comparing Evidentiary Burdens
Consumer Expectations Test
Risk Utility Test
The publics knowledge about the safety of RAD (Reasonable Alternative Design)
the product
Product labeling, marketing, advertising
Experts
No experts
4. Proving a RAD
A. Required by Restatement 3d (rejects CET). How do you do it?

34
i. Use expert testimony
a. Cts may require expert witnesses to meet Daubert
factors.
ii. Compare design to another in the field (industry custom)
iii. Create prototype
B. How do you defeat a RAD?
i. Production costs prohibitive
ii. Effects of alternative design on longevity, maintenance, repair,
and aesthetics
iii. Range of consumer choice among similar products
a. But this sucks for poor peoplenot only rich people
should have access to safe products
iv. Solves problem of jury trying to fix the design
v. Before this, Ps were just making up crazy stuff
C. Camacho v. Honda Motor Co., Ltd. (p.585): P got into accident on
motorcycle manufactured by D. P claimed lack of legs guard made
injuries worse.
i. D argues for CET (anybody can see that a motorcycle is
dangerous)
a. Pro: consumer sovereignty
b. Risk of motorcycle w/o crash bars is w/i reasonable
persons expectations
ii. P wants RUT; Ct agrees
a. P not in position to understand technicalities of product.
1. But thenIs Tort law being too paternalistic?
iii. Crashworthiness Doctrine (2nd collision defect)
a. P can bring claim for increased injury if the alleged
defect didnt cause injury, but worsened it (i.e. P crashed
car, but b/c of Ds defective design, Ps injury was worse)
iv. Colorados Risk Utility Test (p.588-89)
1. Usefulness and desirability of product;
2. Safety aspects of product;
3. Availability of safer substitute;
4. Ability to make product safe without declining utility or
higher cost;
5. Users ability to avoid danger by exercising care;
6. Open and obvious danger, warnings;
7. Loss-spreading.
E. Safety Instructions and Warnings
1. Negligence-based inquiry where instructions & warnings are now
A. Restatement 2nd: consumer should be warned if a danger is not
generally known or if known is one which the consumer would reasonably
not expect to find in the product;
B. Restatement 3rd: Warnings must be provided for inherent risks that
reasonably foreseeable product users and consumers would reasonably

35
deem material or significant in deciding whether to use or consume the
product.
2. Warnings
A. Cheaper to bring than design defect cases
i. Less discovery (all evidence is on the warning)
ii. Less speculation or need for RADs (only language
interpretation)
B. Pushing risk of product onto purchaser
i. Feasible and desirable to transmit info to purchaser
ii. If info = adequatemanufacturer absolved of liability
C. Standard of Reasonable Care for Warnings (fact specific; low SJ)
i. Some risks are so apparent that no warning is needed (dont take
many shots of tequila)
ii. If needed, was the warning adequate?
a. To be adequate, needs to cover foreseeable risks (not SL)
iii. P has to prove that they would not have done that action had
there been adequate warning
D. Determining Adequacy of Warning - Manufacturers should consider:
1. The extent of the risk;
2. The likelihood that it will arise;
3. The users likely understanding about the danger;
4. The means available to convey a warning;
5. The likelihood that too many warnings will decrease the
effectiveness of each warning.
a. Hood v. Ryobi America Corp. (p.600): P removed guards
from saw despite warnings against and was injured. Strict
liability?
i. Ct. said No.
ii. Labels were adequate & didnt need to warn
against blade detachment.
iii. Ct. had concern over too long labels.
VIII. DAMAGES p.710-742
1. Three components:
A. Medical expenses pecuniary
B. Lost income pecuniary
C. Pain and suffering general
i. Seffert v. Los Angeles Transit Lines (p.711): Ps hand & foot
caught in closing bus door. Substantial injuries and pain result.
Jury verdict excessive? No.
a. Ct. held that P&S damages werent so high as to shock
the conscience (jury prejudiced).
b. Trial judges denial of motion for new trial shows he did
not disapprove.
c. Dissent: Excessive b/c exceeded pecuniary awards and
highest ever for this type of injury.

36
1. Per diem arguments mislead jury, but D didnt
raise the question so its waived.
3. Goals
A. Compensation primary
B. Deterrence secondary
C. Note* - punishment is NOT a goal
i. McDougald v. Garber (p.728): Ds negligence caused P to be in
permanent comatose condition. Are loss of enjoyment of life
damages separate from P&S? No.
a. No b/c P isnt aware of loss so this type of damages isnt
about compensation. Its punishment.
1. This category wont yield more accuracy.
b. Dissent: This type of damages is separate and objective,
existing whether or not P is aware.
1. No overlap.
4. Survival Actions: Provides recovery of damages the plaintiff could have
recovered before death (medical expenses, lost wages, P&S from the time of
injury to the time of death).
5. Wrongful Death Actions
A. Typically provides that, upon the death of an individual caused by the
wrongful act of another, the person or entity that would have been liable
had death not ensued continues to be liable.
B. Beneficiarys recovery is measured by losses she suffers as the result of
negligent death (loss of financial support, other forms of economic loss, as
well as loss of companionship, mental anguish, or any type of emotional
losses)