1

TORTS INDEX

BATTERY & ASSAULT

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Snyder v. Turk Nurse gives Contact that is offensive Battery p. 30 Nurse; doctor
wrong tool to a reasonable sense of Rest. 2d.
and doctor personal dignity may 13
yells at her subject the individual
committing the contact to
liability for battery.
Here, reasonable minds
could conclude that D
intended to commit an
offensive contact.
Policy: A person should
be protected from
offensive as well as
harmful invasion of their
person
Cohen v. Smith Wife cant The right to refuse Battery p. 30 Hospital; nurse;
have male medical treatment, if Rest. 2d. religion
nurse b/c of violated, can serve as the 13
religion basis for a claim of battery
or intentional infliction of
emotional distress
Policy: it is an
individuals right to have
their religious beliefs
protected
Garrat v. Dailey 5 yr. old Knowledge that harm Battery (p. p. 7 Child liability;
pulls chair might result = negligent 6) p. 35 minor
Knowledge that harm Rest. 2d.
would result = intent for 13
battery
The intent necessary for
the commission of a
battery is present when the
person acts knowing with
substantial certainty that
the harmful contact will
occur. While battery
requires an intentional
infliction of a harmful
bodily contact, this does
not mean that there must
be intent (or desire) to
cause harm or even to
cause the contact.
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A harmful bodily contact
is inflicted intentionally
when the person knows
with substantial certainty
that the contact will occur.
White v. Muniz Alzheimer Awareness of Battery p. 39 Patient;
patient hits offensiveness of conduct Rest. 2d. 13 Caregiver;
caregivers is needed to be liable for offensive contact
jaw battery
A party must have been
aware of the offensiveness
of her conduct in order to
be held liable for the
intentional tort of battery.
Colorado law requires
dual intent
Cullison v. Father Assault happens when one Assault p. 46 Assault;
Medley threatens 16 acts intending to cause threatening
year old harmful or offensive Rest. 2d. 21 family
daughters contact or imminent Rest. 2d. 22
lover apprehension of such Rest. 2d. 30
contact Rest. 2d. 31
Summary judgment for D
on a claim of assault is not
sustainable where a jury
could conclude that D
intended to frighten P and
that Ps apprehension of
being injured was one that
would be normally
aroused in the mind of a
reasonable person.
McCann v. Woman and Threat of physical force is False p. 51 False
Wal-Mart 2 sons sufficient to show Imprisonment imprisonment;
Stores, Inc. detained confinement Rest. 2d. 35, confinement
Rest. 2d 41
Touchet v. Former Self-defense requires Battery; Self- p. 63 Self-defense;
Hampton employee actual or reasonably Defense
threatens apparent threat to safety;
and fights force cant be excessive in Rest. 2d. 77
degree or kind
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BATTERY

A. BATTERY (2nd Rest.) 13

a. An actor is subject to liability to another for battery if
i. He acts intending to cause a harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such contact
ii. A harmful contact with the person of the other directly or indirectly results.
b. Test
i. That D acts
ii. With intent to cause harmful or offensive contact
1. Knowledge that the contact is substantially certain to result can substitute for
intent
iii. That the contact results
iv. That there was harm
c. The contact need not be harmful yet offensive
i. Reasonable person standard of harm or offensiveness
1. Question for a jury
d. Anything attached to Ps person is considered part of the person for the action of Battery
e. An intentional, unconsented-to harmful or offensive contact with another; contact which is
offensive to a reasonable sense of personal dignity is offensive contact
B. The intent necessary for the commission of a battery is present when the person acts knowing with
substantial certainty that the harmful contact will occur.
a. While battery requires an intentional infliction of a harmful bodily contact, this does not mean
that there must be intent (or desire) to cause harm or even to cause the contact.
b. A harmful bodily contact is inflicted intentionally when the person knows with substantial
certainty that the contact will occur.
C. Child Liability:
a. In most states children may be liable for torts they commit as long as the injured P can prove the
required elements, including intentchild cannot (in most states) escape tort liability simply
because of young age
b. In some states, young children are conclusively presumed to be incapable of harmful intent
some states say child under particular age incapable---
D. Parental Liability for the torts of their minor children:
a. Common law rule is that parents are not vicariously liable for the torts of their children simply
by virtue of their being parents
b. Statutes imposing liability on parents for their childrens torts exist in virtually every state, but
they are usually limited in 2 significant waysfirst, the childs tort must have been committed
willfully or wantonly; two, the damages that may be contained are limited (cap damages)
E. Single Intent
a. Tortfeasor intended a contact (contact must be such that a reasonable person would find
offensive or to which victim did not consent);
b. Tortfeasor need not have intended the harm that actually resulted
F. Dual Intent
 4
a. Tortfeasor intended to contact and intended the contact to be harmful or offensive (tortfeasor
must appreciate the offensiveness of her conduct)
G. Extended liability principle
a. D who commits an intentional tort, at least if it involved conscious wrongdoing, is liable for all
damages cases, not merely those intended or foreseeable

Battery Policies:
A person should be protected from offensive as well as harmful invasion of their person
To allow liability without proving all elements negates the purpose of the law, denies D autonomy

FALSE IMPRISONMENT (2nd Rest.)

- 35. False Imprisonment
1. An actor is subject to liability to another for false imprisonment if
(a) He acts intending to confine the other or a 3rd person within boundaries fixed
by the actor, and
(b) His act directly or indirectly results in such a confinement of the other, and
(c) The other is conscious of the confinement or is harmed by it
False imprisonment occurs when a person confines another intentionally without lawful
privilege and against his consent within a limited area for any appreciable time, however
short. The plaintiff must have been aware of the confinement at the time or else suffered
some actual harm
False imprisonment is a trespassory tort, so the plaintiff can recover damages even if she
sustains no actual harm
- 41. Confinement by asserted legal authority
The confinement may be by taking a person into custody under asserted legal
authority
The custody is complete if the person against whom and in whose presence the
authority is asserted believes it to be valid, or is in doubt as to its validity, and
submits to it
Test
1. Person confines another intentionally
2. Within boundaries defined by the actor
3. Without lawful privilege
4. No means of escape
a. P must be aware
Trespassory tort therefore there is no requirement of actual harm, unless they were unaware of
confinement
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ASSAULT

A. ASSAULT (2nd Rest.) 21

(1) An actor is subject to liability to another for assault if:
(a) He acts intending to cause a harmful or offensive contact with the person
of the other or a third person, or an imminent apprehension of such a
contact, and
(b) The other is thereby put in such imminent apprehension
(2) An action which is not done with the intention stated in subsection (1,a) does not
make the actor liable to the other for an apprehension caused thereby although the
act involves an unreasonable risk of causing it and, therefore, would be negligent
or reckless if the risk threatened bodily harm
Any act of such a nature as to excite an apprehension of an imminent battery may constitute
assault. It is the right to be free from the apprehension of a battery, which is protected by the tort
action, which we call an assault.
(1) The apprehension must be one which would normally be aroused in the mind of a
reasonable person
(2) Imminent does not mean immediate; it means rather that there will be no
significant delay
Assault = a touching of the mind, as opposed to body, so damages which are recoverable for
assault are damages for mental trauma and distress (in addition to same kind of damages
recoverable for battery)
Words alone do not constitute assault must be coupled with acts or other circumstances
(Restatement 2d 31)
B. 22. Attempt Unknown to Other
a. An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact
does not make the actor liable for an assault if the other does not become aware of the attempt
before it is terminated
C. 30. Conditional Threat
a. If the actor intentionally puts another in apprehension of an imminent and harmful or offensive
contact, he is subject to liability for an assault although he gives to the other the option to escape
the contact by obedience to a command given by the actor, unless the command is one which the
actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it
D. 31. Threat by Words
a. Words do not make the actor liable for assault unless together with other acts or circumstances
they put the other in reasonable apprehension of an imminent harmful or offensive contact with
his person (Words alone do not cause an actor to be liable unless it is a reasonable threat. Test =
reasonable person test)

Apprehension: the perception or anticipation of a blow (not fright)

Imminence: The Restatement requires that the apprehended contact be imminent, that is, the D's act must
cause the victim to expect that he is about to be touched.
o Future contact won't support a liability for assault
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Defenses to Intentional Causes of Action

A. Self-Defense and Defense of others

63. Self-Defense by Force not threatening death or serious bodily harm (2d Rest.)
(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious
bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily
harm which he reasonably believes that another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor
correctly or reasonably believes that he can avoid the necessity of so defending himself,
a. By retreating or otherwise giving up a right or privilege, or
b. By complying with a command with which the actor is under no duty to comply or which
the other is not privileged to enforce by the means threatened
65. Self- Defense by Force Threatening Death or Serious Bodily harm (2d Rest.)
(1) Subject to the statement in subsection (3), an actor is privileged to defend himself against
another by force intended or likely to cause death or serious bodily harm, when he reasonably
believes that
a. The other is about to inflict upon him an intentional contact or other bodily harm, and
that
b. He is thereby put in the peril of death or serious bodily harm or ravishment, which
can safely be prevented only by the immediate use of such force
(2) The privilege stated in subsection (1) exists although the actor correctly or reasonably
believes that he can safely avoid the necessary of so defending himself by
a. Retreating if he is attached within his dwelling place, which is not also the dwelling
place of another, or
b. Permitting the other to intrude upon or dispossess him of his dwelling place, or
c. Abandoning an attempt to affect a lawful arrest.
(3) The privilege stated in subsection (1) does not exist if the actor correctly or reasonably
believes that he can with complete safety avoid the necessity of so defending himself by
a. Retreating if attacked in any place other than his dwelling place, or in a place which
is also the dwelling of the other, or
b. Relinquishing the exercise of any right or privilege other than his privilege to prevent
intrusion upon or dispossession of his dwelling place or to effect a lawful arrest
76. Defense of Third Person (2d Rest.)
1) The actor is privileged to defend a 3rd person from a harmful or offensive contact or other invasion
of his interests of personality under the same conditions and by the same means as those under and
by which he is privileged to defend himself if the actor correctly or reasonably believes that
(a) The circumstances are such as to give the third person a privilege of self-defense and
(b) His intervention is necessary for the protection of the third person
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TORTS TO PROPERTY

CASE NAME Brief Rule TOPIC PAGE # TAG WORDS

Facts
Katko v. Briney Spring No deadly force to Tort to p. 67 Landowner;
gun harms protect property over Property; property; defense
intruder life Defense of of property
with no An owner of Possession;
warning premises is prohibited Use of
from willfully or Mechanical
intentionally injuring Device
a trespasser by means
of force that either Battery
take life or influences
great bodily injury. Rest. 2d. 77,
Only time when the 79
gun is allowed is
when the trespasser is Rest. 2d 85
committing a felony human life v.
of violence or felony property
punishable by death
or endangering
human life by his act.
Brown v. Kids steal Limitation of Torts to p. 69 Trespasser;
Martinez watermelo privilege to regain Property (p. Property Owner;
n and get possession of chattels 15) Rest. 2d. chattel
shot No privilege to use 158, 163,
any force causing 164, 218, 33,
death or serious 63, 65, 76
bodily injury where
only the property is
threatened
Law places higher
value on human
safety than property
rights
Gortarez v. Cousins A merchant, acting Arrest & p. 70
Smittys Super suspected with reasonable Detention
Valu, Inc. of stealing cause, may detain a False
air person suspected of Imprisonment
freshener. shoplifting on the
Put in premises and in a
headlock reasonable manner to
question or to
summon law
enforcement.
To use defense, D
must prove (1)
reasonable cause, (2)
 8
detention was for
investigation or
summoning law
enforcement, and (3)
Reasonable time and
manner
Surocco v. Geary D (blaster) Impending necessity Public & p. 82 Property owner;
blew up is more important Private
building than rights of Necessity
to stop property.
spread of Affirmative Defense Conversion of
fire. Still = Act in good faith Chattel
spread. P and apparent
couldnt necessity Rest. 2d.
remove 222A
stuff Rest. 2d. 196
public
necessity
Vincent v. Lake Stormy Privilege to trespass Defense to p. 85 Ship; dock;
Erie night; if necessary to Trespass: property; Private
Transportation Ship prevent serious harm Necessity necessity;
Co. docked Liable for harm done Privilege affirmative defense
and winds in exercise of the
broke privilege Rest. 2d. 158
lines intentional
holding trespass w/o
ship to consent
dock.
Replaced. Rest. 2d. 197
Ship private
damages necessity
dock.
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TORTS TO PROPERTY
Trespass to Land (2nd Rest.)
A. 158. Liability for Intentional Intrusions on Land
a. One is subject to liability for another for trespass, irrespective of whether he thereby causes harm to
any legally protected interest of the other, if he intentionally
1. Enters land in the possession of the other, or causes a thing or a third person to do so, or
2. Remains on the land, or
3. Fails to remove from the land a thing, which he is under a duty to remove.
B. 163. Intended Intrusions Causing No Harm
a. One who intentionally enters land in the possession of another is subject to liability to the possessor
for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any
thing or person in whose security the possessor has a legally protected interest
C. 164. Intrusions under mistake
a. One who intentionally enters land in the possession of another is subject to liability to the possessor
of the land as a trespasser, although he acts under a mistaken belief of law or fact, however
reasonable, not induced by the conduct of the possessor, that he
1. Is in possession of the land or entitled to it, or
2. Has the consent of the possessor or of a third person who has the power to give
consent on the possessors behalf, or
3. Has some other privilege to enter or remain on the land

B. Elements: P must prove an ownership or a possessory interest in the land, and an intentional and
tangible invasion, intrusion, or entry by the D onto that land that harms the Ps interest in exclusive
possession
C. Intentional Entry: Onto Ps land might be accomplished by personal entry or by intentionally
causing an object to enter the land
D. The object of intent: need not to be to trespassOnce intent to enter landd cannot escape
liability b/c D did not intend to harm Ps property or to interfere w/ Ps rights of possession
E. Trespass and Nuisance- Nuisance is separate tortTrespass is an invasion of the Ps interest in
the exclusive possession of his land, while nuisance is a interference with his use and enjoyment of
it. Trespass=tangible invasion
F. Remedies for Trespass
1. Damages
a. Trespasser will be liable for at least nominal damages even if no physical harm is
done/ if physical harmthen P can get damages measure by cost of repair or value
b. Compensatory damages- loss of use of land; Emotional Distress or annoyance
2. Injunctive Relief- P entitled to injunction to stop the trespassing or to force a trespasser to
leave or remove something placed on Ps land
3. Punitive damages- if trespass is deliberate or malicious
4. Extended Liability: Trespassor liable for damages directly caused by his trespass, even if he
never intended to harm and could not foresee that harm
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Conversion to Chattels- Trover
Substantial dominion over the watch and interfering with Ps ability to control it
No requirement that D be conscious of wrongdoing
One can convert shares of stock or bonds and other documents which are strongly identified with the right
itself
Damages- measured by value of chattel at time of conversion

A. 222A. What constitutes conversion

1. Conversion is an intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the other
the full value of the chattel
2. In determining the seriousness of the interference and the justice of requiring the actor to pay the full
value, the following factors are important:
a. The extent and duration of the actors exercise of dominion or control;
b. The actors intent to assert a right in fact consistent with the others right of control;
c. The actors good faith;
d. The extent and duration of the resulting interference with the others right of control;
e. The harm done to the chattel;
i. The inconvenience and expense caused to the other.
B. 229. Conversion by Receiving possession in consummation of transaction
a. One who receives possession of a chattel from another with the intent to acquire for himself or for a
third person a proprietary interest in the chattel which the other has not the power to transfer is
subject to liability for conversion to a third person then entitled to the immediate possession of the
chattel.

Trespass to Chattels
A. 217. Ways of committing Trespass to Chattel
a. A trespass to a chattel may be committed by intentionally [and without justification]
1. Dispossessing another of the chattel, or
2. Using or intermeddling with a chattel in the possession of another
B. 218. Liability to Person in Possession
a. One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but
only if,
a) He dispossesses the other of the chattel, or
b) The chattel is impaired as to its condition, quality, or value, or
c) The possessor is deprived of the use of the chattel for a substantial time, or
d) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which
the possessor has a legally protected interest
C. 33. Scope and liability for intentional and reckless tortfeasors
a) An actor who intentionally causes harm is subject to liability for that harm even if it was unlikely
to occur
b) An actor who intentionally or recklessly causes harm is subject to liability for a broader range of
harms than the harms for which that actor would be liable if only acting negligently. In general,
 11
the important factors in determining the scope of liability are the moral culpability of the
actor, as reflected in the reasons for and intent in committing the tortious acts, the seriousness of
harm intended and threatened by those acts, and the degree to which the actors conduct deviated
from appropriate care
c) Notwithstanding subsections a and b, an actor who intentionally or recklessly causes harm is to
subject to liability for harm the risk of which was not increased by the actors intentional or
reckless conduct

The special case of consent

A. 892. Meaning of consent (2nd Rest.)
a. Consent is willingness in fact for conduct to occur. It may be manifested by action or
inaction and need not be communicated to the actor
b. If words or conduct are reasonably understood by another to be intended as consent, they
constitute apparent consent and are as effective as consent in fact
B. 168. Conditional or Restricted Consent (2nd Rest.)
a. A conditional or restricted consent to enter land creates a privilege to do so only in so far as
the condition or restriction is complied with.
C. 169. Consent Restricted as to Area (2nd Rest.)
a. A consent given by a possessor of land to the actors presence on a part of the land does not
create a privilege to enter or remain on any other part
D. 170. Consent conditioned or restricted as to time (2nd Rest.)
a. A consent given by a possessor of land to the actors presence on the land during a specified
period of time does not create a privilege to enter or remain on the land at any other time
E. 172. Consent obtained by duress (2nd Rest.)
a. Consent obtained by duress upon the possessor of land exerted by the actor, or by a third
person to the knowledge of the actor, is not effective as a consent to his entry

196. Public Necessity:

One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to
be, necessary for the purpose of averting an imminent public disaster

197. Private Necessity

(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to
be necessary to prevent serious harm to
a. The actor, or his land or chattels, or
b. The other or a third person, or the land or chattels of either, unless the actor knows or has reason
to know that the one for whose benefit he enters is unwilling that he shall take such action
(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm
down in the exercise of the privilege stated in subsection 1 to any legally protected interest of the
possessor in the land or connected with it, except where the threat of harm to avert which the entry is
made is caused by the tortious conduct or contributory negligence of the possessor
 12
Defense and Repossession of property
77. Defense of Possession by Force Not Threatening Death or serious bodily harm
1. An actor is privileged to use reasonable force, not intended or likely to cause death or serious
bodily harm, to prevent or terminate anothers intrusion upon the actors land or chattels, if
(a) The intrusion is not privileged or the other intentionally or negligently causes the
actor to believe that it is not privileged, and
(b) The actor reasonably believes that the intrusion can be prevented or terminated only
by the force used, and
(c) The actor has first requested the other to desist and the other has disregarded the
request, or the actor reasonably believes that a request will be useless or that
substantial harm will be done before it can be made
84. Use of mechanical device not threatening death or serious bodily harm
1. The actor is so far privileged to employ, for the purpose of protecting his possession of land
or chattels from intrusion, a device not intended or likely to cause death or serious bodily
harm that he is not liable for bodily harm done thereby to a deliberate intruder, if
(a) The use of such a device is reasonably is necessary to protect the land or chattels from
intrusion, and
(b) The use of the particular device is reasonable under the circumstances, and
(c) The device is one customarily used for such a purpose, or reasonable care is taken to
make its use known to probable intruders
85. Use of Mechanical Device Threatening Death or Serious Bodily Harm
1. The actor is so far privileged to use a device intended or likely to cause serious bodily harm
or death for the purpose of protecting his land or chattels from intrusion that he is not liable
for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact,
such that the actor, were he present, would be privileged to prevent or terminate it by the
intentional infliction of such harm
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ELEMENT #1: Duty
(Sudden Emergency, Mentally Impaired, Child Negligence, Reasonable Person Standard, Negligence Per
Se, Excused Violations)

CASE NAME Brief Facts Rule TOPIC PAGE TAG WORDS

#
Stewart v. Motts Gasoline The standard of Duty of Care/ p. 93 Reasonably
poured in reasonable care applies to Prudent Person prudent person;
carburetor all negligence actions,
by plaintiff. i.e., the reasonable Car
Defendant person must exercise care
started car in proportion to the
danger involved in his
act
Policy: A higher standard
would create unnecessary
distinctions that would
confuse the trier of fact
Posas v. Horton Lady The duty of care doctrine Duty of Care p. 96 Sudden
driving car, provides that a person Emergency;
baby confronted with a Rest. 9 Negligence;
stroller, sudden emergency Rest. 296 -
stopped which he didnt cause Emergency Car/pedestrian
suddenly. and who acts with his
(P) was best judgment is not
rear-ended guilty of negligence
by Horton There must be evidence
(D). of a sudden and
unforeseeable change to
which a driver was
forced to respond to
avoid injury.
Creasy v. Rusk Rusk (D) Mental disability does Duty of Care: p. 100 Mentally
confined to not excuse the actor. Mentally impaired;
a hospital General Rule mentally Impaired Patient;
for care, ill held to same standard caregiver
kicked nurse of care as reasonable Rest. 11
person Rest. 283B
Exception If factual
circumstances negate the
factors supporting
imposition of a duty,
particularly with respect
to the nature of the
parties relationship and
public policy
considerations
Policy those w/
disabilities or w/ family
 14
members w/ disabilities
will restrain to avoid
being sued; faking it to
escape liability prevented
Robinson v. 13-year-old When a child engages in Duty of Care: p. 105 Child;
Lindsay boy drives an inherently dangerous Child snowmobile
snowmobile activity, or an activity, Negligence
; thumb cut which is normally one for
off 11 year- adults only, courts will Rest. 3d 10
old girl. hold the child to an adult
standard of care.
Chaffin v. Brame D parks A person is not bound to Specification of p. 108 Contributory
truck on anticipate negligent acts Duty: negligence
highway or omissions on the part Contributory Reasonable
w/o lights. of others Negligence Care;
Vehicle runs Act upon the assumption Reasonable
into unlit that every other person Person
truck will perform his duty Standard;
Reasonable person
standard applied to Car accident;
determine whether driver
contributory negligence
exists not here
OGuin v. Two boys Negligence per se Specification of p. 112 Negligence Per
Bingham County killed at a through the violation of Duty: Se;
landfill statute is to conclusively Negligence Per
when wall establish the first two Se Landfill;
collapsed elements of a cause of children
action
Adopted statute with
specific standard of care
Impson v. Highway Excused violation of a Specification of p. 117 Excused
Structural accident. legislation enactment is Duty: Excused violation;
Metals, Inc. Truck (D) NOT negligence if violation
tried to pass certain elements are met Element #1 Car accident
car at Where a party violates a
intersection. statute, he must present Rest. 3d. 15
3 died in some legally substantial Excused
other car excuse or justification Violations
(P). Ds (15)
excuse = Rest. 2d. 288A
didnt see
sign too
small
 15
Element # 1: Duty of Care

3. Negligence
A person acts negligently if the person does not exercise reasonable care under all the circumstances.
Primary factors to consider in ascertaining whether the persons conduct lacks reasonable care are the
foreseeable likelihood that the persons conduct will result in harm, the foreseeable severity of any harm
that many ensue, and the burden of precautions to eliminate or reduce the risk of harm
6. Liability for negligence causing physical harm
An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm
within the scope of liability, unless the court determines that the ordinary duty of reasonable care is
inapplicable
4. Proof of Plaintiffs Negligence and Legal Causation
The defendant has the burden to prove plaintiffs negligence, and may use any of the methods a plaintiff
may use to prove defendants negligence. Except otherwise provided in Topic 5, the defendant also has the
burden to prove that the Ps negligence, if any, was a legal cause of the Ps damages
7. Effect of Plaintiffs negligence when plaintiff suffers an indivisible injury
Plaintiffs negligence (or the negligence of another person for whose negligence the P is responsible) that is
a legal cause of an indivisible injury to the plaintiff reduces the Ps recovery in proportion to the share of
responsibility the fact finder assigns to the plaintiff (or other person for whose negligence the P is
responsible)
8. Judge and Jury
(a) When in light of all the evidence, reasonable minds can differ as to the facts relating to the actors
conduct, it is the function of the jury to determine those facts
(b) When, in light of all the facts relating to the actors conduct, reasonable minds can differ as to whether
the conduct lacks reasonable care, it is the function of the jury to make that determination
9. Emergency
If an actor confronted with an unexpected emergency requiring rapid response, this is a circumstance to be
taken into account in determining whether the actors resulting conduct is that of the reasonably careful
person
10. Children
(a) A childs conduct is negligent if it does not conform to that of a reasonably careful person of the same
age, intelligence, and experience, except as provided in subsection b or c
(b) A child less than 5 years of age is incapable of negligence
(c) The special rule in subsection a does not apply when the child is engaging in a dangerous activity that is
characteristically undertaken by adults
11. Disability
(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to
that of a reasonably careful person with the same disability
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from
physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably
foreseeable to the actor
(c) An actors mental or emotional disability is not considered in determining whether conduct is negligent,
unless the actor is a child
 16
Standards of Care:
The standard of reasonable care applies to all negligence actions
o I.e., the reasonable person must exercise care in proportion to the danger involved in his act, and that
he or she must exercise such care not only for his own safety and the protection of his property but
also to avoid serious injury to others.
o The greater the danger, the greater the amount of care which must be exercised.But within the
standard.
Adults
o Must ordinarily act with reasonable care, i.e., as a reasonable person would under like or similar
circumstances.
Children
o Are expected to act with the degree of reasonable care, as would a child of similar age, intelligence
and experience.
o When a child is engaged in an adult activity, it is certain that the child is expected to act as a
reasonable adult engaged in the same activity.
Professionals (i.e., physicians, attorneys, etc.)
o Are expected to exercise the degree of care appropriate to the standards of other professionals in
that, or similar, community.
o Public safety officials and caregivers are specifically hired to encounter and combat particular
dangers, and by accepting such employment assume the risks associated with their respective
occupations. (Creasy v. Rusk)

Sudden Emergency Doctrine:

D must show there is sufficient evidence that the D was placed in a position of peril through no
negligence of her own, and in the face of the emergency, acted as a reasonable person in similar
circumstances.
o There must be evidence of a sudden and unforeseeable change to which a driver was forced to
respond to avoid injury.
Emergencies on road should be anticipated

Negligence Per Se (Rest. 3d. 14):

Adoption of statute that replaces the common law duty of care
o Statute must present specific duty
o Argue statute adoption to judge, not jury
For statute to be adopted, it must:
1. Clearly define the required standard of conduct;
2. Have been intended (designed by legislature) to prevent the type of harm the defendants acts or
omissions caused;
3. The plaintiff must be a member of the class of persons the statute was designed to protect

Excused Violations (Rest. 3d. 15)

a) Violation is reasonable because of the actors incapacity;
b) Neither knows nor should know of the occasion for compliance;
c) He is unable after reasonable diligence or care to comply;
d) He is confronted by an emergency not due to his own misconduct; and
e) Compliance would involve a greater risk of harm to the actor or to others.
 17
ELEMENT #2: Breach of Duty
(Foreseeability, Learned Hand, Res Ipsa, Standard of Care, Custom)

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Pipher v. Parsell Pickup truck, An actor is negligent Foreseeability p. 123 Foreseeable risk;
passenger only if his conduct Element #2
yanks wheel, created foreseeable risk Car accident;
driver failed and the actor recognized, Rest. 3d. 3 driver; passenger
to do or a reasonable person Rest. 3d. 18
anything would have recognized,
different that risk.
Duty: A driver owes a
duty of care to his
passengers because it is
foreseeable that they may
be injured if, through in
attention or otherwise,
the driver involves the
car he is operating in a
collision.
When actions of a
passenger that interfere
with the drivers safe
operation of the motor
vehicle are foreseeable,
the failure to prevent
such conduct may be a
breach of the drivers
duty to his passengers or
the public.
Indiana Lawnmower: The standard of care to Weighing p. 127 Standard of care;
Consolidated gas, start, adjudge negligent Risks Ordinary prudent
Insurance Co. v. fire. (D) goes conduct is whether a person
Mathew to call for person exercised the duty
help instead to use care that an
of putting out ordinary prudent person
fire. Ins. Co. would exercise under the
sue for same or similar
damages circumstances.
Stinnett v. Painter falls Personal Responsibility Weighing p. 130 Personal
Buchele from barn An employer is not Risks responsibility;
roof negligent when the
employees knowledge is Employee/emplo
superior to his own yer;
No liability for employer
unless the employer
knows more than the
employee.
If both know the same
 18
then no liability for the
employer.
Employee can only win if
the knowledge for the
employer is more.
Bernier v. Car collides Failure to take reasonable Foreseeability p. 133 Unreasonable
Boston Edison with utility steps to prevent / risk of injury;
Co. pole. Injures unreasonable risk of Weighing Reasonably
pedestrians injury from reasonably Risk foreseeable;
foreseeable accidents is
negligence. Rest. 3d. 3 Car accident;
Learned Hand Formula pole;
likelihood of harm apportionment of
occurring (P), gravity of damages
potential harm (L),
burden of taking
precautions (B)
A manufacturer is
required to anticipate
the environment on
which its product will be
used, and it must design
against the reasonably
foreseeable risk attending
the use in that setting.
United States v. Barge w/ Absent a reasonable Risk and p. 137 Learned Hand
Carroll Towing flour breaks excuse the owner is Utility Formula;
away and liability Learned Hand reasonable
sinks. No Learned Hand Formula
bargee (B<PL) Car accident
There is a duty of care to
protect others from harm
when the burden or
taking adequate
precautions is less than
the product of the
probability of the
resulting harm and the
magnitude of the harm
Santiago v. First School bus, A plaintiff bears the Proof of p. 147 Proximate Cause
Student, Inc. no facts to burden of proving a Conduct Burden of
support defendants actions were production
evidence. (P) the proximate cause of
remembers her injuries
nothing Burden of Production not
satisfied
A partys negligence
must affirmatively be
established by competent
 19
evidence and may not be
based on conjecture or
speculation
Thoma v. Restaurant - To recover for injuries Inference p. 153 Slip and Fall;
Cracker Barrel stood up and incurred in a slip and fall restaurant;
Old Country slipped on accident, plaintiff must circumstantial
Store, Inc. supposed show that the premises evidence
spill owner either: created a
dangerous condition OR
had actual or constructive
knowledge of a
dangerous condition.
Notice of a dangerous
condition may be
established by
circumstantial evidence,
such as evidence leading
to an inference that a
substance has been on the
floor for a sufficient
length of time such that
in the exercise of
reasonable care the
premises owner should
have known the
condition.
Duncan v. Deck stairs Proof of general custom Custom p. 157 Custom;
Corbetta collapsed is admissible because it Ordinary care
tends to establish a
standard to judge
ordinary care
T.J. Hooper Lack of Use of custom is a sword, Custom p. 159 Custom
radios on lack of custom is a shield
ships. Judge
Hand
Miller v. Motel fire, Compliance with a Ordinance p. 161
Warren smoke statute does not
detectors demonstrate care per se
were not
required
Byrne v. Flour barrel The mere fact of an Res Ipsa p. 162 Negligence
Boadlee falls on man accident raises an Loquitor
walking by. inference of negligence Element #2
All he knows to establish a prima facie
if from case
witness who
saw barrel
fall from Ds
store
 20
Koch v. Norris Power lines Power lines do not Res Ipsa p. 167 Res ipsa loquitor
Public Power fell and merely fall on their own, Loquitor
District caused a therefore they must have Element #2
field to burn. been negligently
Weather was constructed
sunny, dry,
ordinary
winds
Cosgrove v. Power line Power line fell, act of Res Ipsa p. 168
Commonwealth falls during God. Gas line explodes Loquitor
Edison Co. storm and breach and therefore Element #2
causes gas negligence.
line to
explode.
Warren v. Car rolled Pure speculation cannot Res Ipsa p. 169 Res Ipsa
Jeffries backward be proof of Res Ipsa Loquitor Loquitor
and ran over Loquitor Element #2
boy
Giles v. City of Elevator Plaintiff can contribute to Shared Fault p. 171 Contributory
New Haven operator may negligence but is not in Breach negligence
have pulled eliminated from using
chain and Res Ipsa Loquitor Element #2
attributed to By exclusive control
accident we dont mean the
ONLY one in control it
can be shared control but
the def is MORE in
control. cites restatement
comment gits enough
if you have control not
exclusive control even.
 21
Element #2: Breach of Duty

Negligence is overt conduct that creates unreasonable risks that a reasonable person would avoid.
The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might
result and would avoid conduct that creates the risk.
o Conduct may include a failure to act, if action is required.
Breach of duty requires the plaintiffs theories of what defendant SHOULDVE DONE.
Jury assesses the evidence:
1. Decides what would a reasonable person do under these circumstances
2. Look at what the defendant actually did.
3. Whether the defendants conduct (action or inaction) conformed to that of the reasonable person.
1. If u didnt do the same then its a breach and its negligence!
Rest. 3d. 18:
The major factors in analyzing whether conduct is negligent are: the foreseeable likelihood that the
persons conduct will result in harm, the foreseeable severity of any harm that may ensure, and the
burden of precautions to eliminate or reduce the risk of harm

Jury Task for Element #2:

1. Determine what conduct a reasonable prudent person would have done under the circumstances
presented in this particular case
2. Determine the conduct of the defendant
3. Determine if the conduct conformed to that of the reasonable person

Burden of Production:
Burden of producing evidence sufficient for a fact finder to find in that parties favor. (Plaintiff)
o Evidence must be proven by witnesses, testimonies, documents and put it all into the record.
Judge decides if the party has satisfied the production of burden
o Judge decides whether there is sufficient evidence to get to the jury.
Burden of Persuasion:
Burden of persuading the fact finder to rule in parties favor.
Persuasion is the jurys decision NOT the judges.
Standard of Proof = standard used by the fact finder (jury) to make findings based on the evidence.
o Weigh the evidence for and against the proposition = whichever way it weighs you must find for
that party.
o What if it weighs equally?
The party who has burden of persuasion loses.
 22
Learned Hand Formula (B < PL)
If probability of occurrence goes up but gravity of harm goes down, burden of avoidance goes down.
o The two are always proportional and the burden is reverse.
A reasonable person would take in the risk and the cost of burden of avoidance and see the balancing.

Breach = Burden of Prevent < (Probability of Loss * Cost of Loss)

B = burden
o spend $
o allow a different loss
o opportunity cost
P = probability of loss
L = cost of loss

Qualitative interpretation:
1. Likelihood of occurrence of harm (P)
2. Gravity of the potential harm (L)
3. Burden of taking precautions or avoiding the potential harm (B)

Quantitative interpretations (tests):

Negligent if B <PL then negligent (negligent about something else) or negligent if but only if B < PL.
(all negligence is about B and PL)
o Problems: you have to measure and compare them, how do you do that?

Restatement 3: act negligently if the person doesnt apply reasonable care.

Factors to consider:
o Foreseeable likelihood (probability of harm)
o Foreseeable severity
o Burden of precautions

Its rare to see learned hand factors show up at jury instructions. Its a judge rule mostly.
o Jury might be confused.

If conduct was negligent likelihood was sufficiently high.

The higher the gravity of the potential harm was sufficiently high and the burden of avoidance was
LOW.

Evidence to Prove issues/facts (all of these decided by the judge if it should go to jury)
Admissibility: to get into the case at all. Evidence must satisfy the rules of evidence.
Relevance: to link an issue of fact, evidence must make the factual proposition more probable or less
probably.
Sufficiency: the totality of evidence relevant to a particular issue of fact must be sufficient for a
reasonable fact-finding. Depends on relevancy. Must see if the relevance is high enough to be sufficient.
 23
JOINT & SEVERAL LIABILITY

When more than one person is at fault and is negligent:

Several Liability and Comparative fault
o Each faulty party bears their percentage of the fault
o Even the P
And if in an example the other faulty party cant pay then P has to pick that share as well
(loss to P).
Joint and Several Liability
o P may sue wherever the money is
o D1 may then sue D2 for contribution
o May not get contribution from insolvent or immune tortfeasors
o If A 80% and B 20% are negligent and plaintiff has 10,000 in damages but P blames A entirely:
then in this system A pays 10,000 and A pays 2,000 to B.

SLIP & FALL CASES:

Liability for spill & fall cases:
1. The defendant (owner of place) created and failed to take reasonable actions to abate the hazard
2. The defendant did not directly create the condition but discovered/shouldve discovered a
condition created by others (constructive notice) and failed to take reasonable steps to prevent
injury from that condition
3. The defendants mode or method of business operations made it foreseeable that others would
create a dangerous condition and the defendant failed to take reasonable measures to discover or
remove it.

Knowledge or Notice of Circumstances:

Actual knowledge or notice (be proven by circumstantial evidence)
o Lets say a waitress spills something. If manager saw the liquid or saw someone drop something.
Circumstantial: he didnt see it but someone else says they saw something over there; or
someone saw the manger spot over the spill and get around it then go to the kitchen.
Constructive notice:
o A reasonably prudent person wouldve checked if they knew the area is the place where ppl drop
things. A reasonably person wouldve known about the spill. And it was negligent not to know
about the risk because a reasonably prudent person wouldve checked.
 24
RES IPSA LOQUITOR

Rest. 2d. 328D - Res Ipsa Loquitor = the thing itself speaks
It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
1) The event is of a kind which ordinarily does not occur in the absence of negligence
2) The instrumentality or agent, which caused the accident, was under exclusive
control of this defendant.
3) The victim did not cause or contribute to the particular accident
Restatement 3rd 17 (reasoning backwards from effect to causedef did something negligent and
caused it and more likely than other explanations combined.
o Negligence can be inferred when the accident causing harm is a type that ordinarily happens as
a result of the negligence of the class of actors of which the def is relevant member
Jury Instruction for RIL:
o Judge tells the jury that if they do find the existence of res ipsa elements then they may draw the
inference of negligence

Res Ipsa L Jurisdictions:

o Permissive Inference states
If jury finds the 3 conditions of res ipsa to be true then they may find for the p but they
dont have to.
They are allowed to infer that the def did something neg more likely than not. Its
enough to get to the jury.
o Presumption states (burden shift)
If 3 conditions are true, the burden shifts to the defendant. Creates the presumption that
the defendant engaged in negligence and caused accident.
Burden of producing evidence (NEWING CASE)
Other states: Burden of producing evidence AND burden of persuading the fact
finder.
Jury instructions in a permissive inference state (no burden shift)
o Judge decides If plaintiff has produced sufficient evidence for jury to use RES IPSA
Giles case says this as defs argument (they never showed enough evidence for RIL)
o If the plaintiff proves that (the 2 or 3 conditions of RIL) are true then [plaintiffs burden of
evidence]
JURY MAY find (element #2) for the p
Jury instructions in a presumption state with a production only shift:
o Judge decides If p has produced sufficient evidence (it can go to jury)
o If the p proves that (2 or 3 conditions of RIL) are true then/
o 2 possibilities of jury instruction (decided by judge because judge decides sufficiency of
evidence)
1) Defendant has produced sufficient evidence
Then JURY may find (element 2) for the plaintiff.
o Elevator Company in GILES says we are not negligent and uses that
evidence.
 25
o Jury doesnt have to find for p; may like defendant version better
2) Defendant has NOT produced sufficient evidence (they had a burden of production and
they failed.
JURY MUST find (element 2) for the plaintiff.
Defendant had chance to produce evidence and didnt.
o These instructions take the place of the directed verdict motion
Jury instruction in a presumption state with a production AND persuasion shift:
o You produced enough evidence for the production but DEF must persuade that he or she did not
do negligent conduct.
And if they didnt produce anythingwe are back to PRODUCE IT.
o If def has given sufficient evidence then jury must weigh it but the burden of persuasiondef
persuades you that he or she did not engage in negligent conduct.
o If def hadnt producehad your chance and you dont get to persuade the jury so find for the
plaintiff.

For final do this:

Look at Injury work back up the causal chain of what caused the injury and any person who played a
role in the injury could be a defendant with respect to each person see if you can use the elements of
negligence to name them as defendant. Know why you cannot sue someone and can you sue others (dont
overlook defendants dont just pick one).

BURDEN SHIFTS:
Which burden shifts?
o In permissive inference states there is no shift
o Production alone in most states
o Persuasion also in a certain number of cases
When does it shift?
o We are still talking about the prima facie case
o This is not an affirmative defense
o The shift takes place when the three conditions are proved, the jury finds them true
What are the jury instructions?
o If P proves all of the elements in a permissive inference state then the instructions will often look
like those on p.177 note 2.
o If the burden shifts only after the conditions are found to be true then you need a verdict first.
You dont know if you have the burden or not
o The jury instructions fix this problem
o If P proves 1, 2 & 3, then

Production shift Persuasion shift State

State
D You may infer You must find for P unless D proves by a preponderance that he
produces was not negligent
 26
ELEMENT #3: Actual Harm

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Right v. Breen Red light. Without actual injury there Actual p. 177 Car accident
Minor can be no cause, therefore (compensable)
damage to there can be no negligence. Harm
Ps car; no Injury must be caused by
physical this negligent conduct
injuries If injuries from prior
reported at accidents are aggravated by
scene; P this accident, the D is
later said liable b/c you take P as you
injuries find him
came from
accident;
Plaintiff had
5 prior car
accidents.

Compensable Harm
o Defendants conduct was negligent and actual damages resulted from it
 27
ELEMENT #4: Cause In Fact
(But-for test; Substantial Factor Test; Concert of Action; Lost Chance)

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Hale v. Ostrow Sidewalk But-For xxxxx would the But-for p. 180 Land (sidewalk)
bushes injury have occurred had the Test
overgrown, defendant not caused it.
caused her to The defendants conduct is Rest. 26
walk in street the cause in fact of the
plaintiffs injury if, as a
factual matter, it directly
contributed to the plaintiffs
injury.
It is not necessary that the
defendants act be the sole
cause of the plaintiffs injury,
only that it be a cause.
Salinetro v. Doctor failed Taking away the doctors But-for p. 181 Doctor/patient;
Nystrom to ask a cause showed she was still Test Med Mal
pregnancy injured. Thus, the but-for test
question. works when there is lack of
cause.
Landers v. East Two salt But-for will not work here But-for p. 186 Salt water; fish
Texas Salt water flows when there is a duplicative Test
Water Disposal killed all the cause Problem:
Co. fish All wrong doers held jointly Who is
and severally liable for entire responsible
damages ?
Substantial Factor Test (Rest.
432)
Summers v. Three If direct negligence cannot be But-for p. 191 Hunters; shoot
Tice hunters, two established then both Test
shot one who defendants are responsible Problem:
is hit on lip Concert of Action Concert of
and eye; Burden Shift: Action
same guns o Prod. & Pers. To (D)
Rest. 3d.
28b
Comment
L
(alternative
liability)
Mohr v. Diabetic p must protect the def against Lost p. 194 Med Mal; Lost
Grantham drove into the loss of substantial Chance chance
pole at 45 chances.
mph. P says If survival = 40%, & the def
Doctors is liable for the loss he
negligent causedthe chance
care resulted
 28
in lost
chance to
avoid severe
brain damage
Dillon v. Trial judge D is liable w/ proof that
Evanston instruction conduct caused legal harm
Hospital erred in only if:
dialing to o D acted negl. And
require o Negl. Created
evidence of identifiable risk and
increased o P was one of the
risk of future persons subjected to
harm and that risk and
probability o P actually suffered
that future harm of the kind
harm would risked by D
materialize
 29
Element #4: Cause In Fact

Cause in Fact:
o Plaintiff suffered harm and that harm was caused by the defendant
o Chain of events between the negligent conduct and the harm

Restatement 26 BUT FOR

Conduct was a necessary condition if you take the condition away the accident would not have
happened and no injury.

A. In but-for cause in fact cases:

a. always claims but-for,
b. Responds with even if, I had been careful, youd still have gotten hurt.
B. Two persons causing separate or distinct injuries:
a. Under the but-for rule, more than one actors conduct can be causal
i. If two injuries are separate, liability can be apportioned by causation Each tortfeasor will
be liable for the harms that tortfeasor caused and no more
b. Distinct injuries, 2 defendants but 1 harmed plaintiff
i. Treat it as 2 separate cases.
C. Two persons causing a single indivisible act:
a. If both parties are but-for causes of the s single injury, they are both liable.
i. One harm, but multiple defendants Both pay for the damages.
1. Jury can assign them different % of responsibilities of damage
D. Some Ps not a but-for cause of all injury:
a. If a doctor extends harm, he is only a but-for cause of the extended harm, while the original injurer is
a but-for cause of both.
i. Look like a single injury but somebody wants to argue its not a single one and is dividable.
1. See restatement apportionment 26 also Rest Torts P. E. H. 28 comment d
ii. P would say all my injuries was one indivisible single harm
1. But defendant says my negligence ONLY caused one thing
a. Def tries to divide the harm into parts
iii. Restatement burden is on the negligent parties who want to divide the harm to produce
evidence and persuade the jury that there are 2 distinct harms.
E. Liability w/o but-for causation:
Respondent superior liability: the telephone co. is liable for its drivers on-the-job negligent driving
that causes the s injury (vicarious liability)
Conspiracy or in concert cause of harm: all are liable, though only one of the conspirators is a direct
cause of the harm
F. Substantial Factor Test:
a. If the tortious conduct of one tortfeaser (A) fails the but-for test only because there is another set of
conduct also sufficient to cause the harm, As conduct is still a cause in fact or factual cause.
G. Increased Risk Showing Causation:
a. When a defendant might be harmed for many reasons, the s failure to provide a safety measure is
often permitted for juries to find that the defs negligent act or omission was a cause in fact of the ps
harm.
Where such a strong causal link exists, it is up to the negligent party to bring in
evidence denying but-for causes and suggesting that in the actual case the wrongful
conduct had not been a substantial factor.
 30
Alternative Liability:
Usually 2 defendants. Each equally likely to have been the factual cause of ps harm.
o Shifts the burden of proof to the culpable parties who exposed an innocent person to risk.
o P is unable to show which one it was.
o Ex. A and B and C are at an intersection. A and B run the red light in opposite directions and
smash into Cs car C C is injured. Cs harm was either caused by A or B but not both and
the jury cannot find if it was A or B then A and B have burden of proving the other one was the
cause.

LOST CHANCE:

1) Lost opportunity seen as an injury itself for which the def negligently injured the plaintiff
i. Just establish causal link btw the def neg and the lost opportunity and you can recover the portion of
damages actually attributable to the defs negligence.
ii. Hypo: 20% of cases paralysis can be avoided.; 80% cant do anything. Def didnt follow the procedure
and p is paralyzed. Under here the p just proves more likely not but for the negligence she lost a 20%
opportunity of a better outcome to avoid paralysis
1. Keeps preponderances standard of proof: more likely than not
2. Keeps but-for
3. How to calculate the money she should get? Million dollars x Value of chance she was
deprived her of (20% she lost) = 200k so def doesnt pay for the whole thing
iii. Changes the 3rd element: compensable harm is not the bodily injury but the loss of opportunity.

Restatement 26 comment n
What distinguishes med mal cases:
1) Is contractual relationship of doc/patient in which we assume the doc will do every
reasonable measure to get optimal outcome for patient.
2) Reasonably good empirical evidence is available (lot of medical data that we can quantify).
A. If we dont have this: jury would be guessing/speculating
3) The consequence of doctors negligence will deprive the patient of a less-than-50% chance of
recovery.

The may recover for the value of the lost opportunity

Threshold that the s negligence more likely than not increased the harm or destroyed a substantial
possibility of a better outcome.

Implications of loss of chance approach:

When a group of persons are hunting, or using firearms, and two of them are negligent in firing in the
direction of a third party who is injured thereby, both are liable for the injury suffered.
Lost opportunity: Causal rules are not changed; p must protect the def against the loss of substantial
chances.
o If survival = 40%, & the defs negligence more likely than not eliminated that chance, def is
liable for the loss he causedthe chance.
In damages = 40% of the damages if liable for death.
A fetuss increased risk of future harm is not a present injury which fetus could have brought an
action for damages against the .
Distinguished from Dillon b/c catheter pieces in heart are a present injury.
 31
APPORTIONMENT for Lost Chance:
1) All or Nothing Traditional Approach (few courts follow)
a. Plaintiff must prove that b/c of defendants negligence, plaintiff was deprived of at least 51%
of a more favorable outcome than the one she got
i. If 51% -- Plaintiff recovers everything
ii. If 50% -- Plaintiff gets nothing
Substantial Factor Test/Lost Chance:
Defendants negligence more likely than not increased the harm to the Plaintiff or destroyed a
substantial possibility of getting a more favorable outcome
a. All or nothing
b. Even if less than 51%, can still recover by proving that The defendants negligence
increased plaintiffs harm to a certain degree
i. If 20% chance of no paralysis Considered significant even though in 80% of
cases nothing the doctors could have done would have helped
JURY INSTRUCTION = Legal cause of injury is a cause which is a substantial factor in bringing about
the injury
Lost Chance as Injury itself and not Paralysis (Most Favorable):
o If in 20% of cases paralysis can be avoided and cant do anything in 80% Plaintiff must just
prove that more than likely not but for the negligence she lost a 20% opportunity of a better
outcome to avoid paralysis
$1,000,000 x Value of Chance Lost (20%) = $200,000
 32
ELEMENT #5: Proximate Cause
(Foreseeability, Rescue Doctrine, Thin-Skull, Intervening Act, Superseding, Termination of Risk)

CASE Brief Facts Rule TOPIC PAGE # TAG WORDS

NAME
Thompson Trampoline Risk Standard Principle Risk Standard p. 204 Risk standard;
v. Kaczinski obstructs confining liabilitys scope to
roadway. P the reasons for holding the
tries to avoid actor liable in the first place
it and is in Scope of liability issue
ditch requires consideration of the
risks that made the actors
conduct tortious and a
determination of whether
the harm at issue is a result
of any of those risks
D should have known high
winds usually occur in Iowa
in September and unsecured
trampoline would endanger
motorists
Palsgraf v. Employees Injury did not fall within the Proximate p. 209 Risk;
Long Island push scope of risk that made the Cause Foreseeability;
Railroad Co. passenger employee's conduct Carrier
onto train and negligent Not foreseeable Risk Factor
package with that the package contained
fireworks fireworks. Foreseeability
explodes The duty is to the
reasonably foreseeable risk. Rest. 3d. 30
Wagner v. Defendant Rescue Doctrine if rescuer Proximate p. 216 Rescue
Int. Railway (railway) is injured while rescuing, Cause
negligently original tortfeasor is liable Rescue
creates risk to The rescuer can recover Doctrine
A falls in from the defendant whose
between train negligence prompted the
cars. B, rescue attempt if the rescuer
having not had a reasonable belief the
been harmed victim was in peril.
by defendant
attempts to
rescue A, and
is harmed.
Hughes v. Public Even if manner in which Proximate p. 218 Foreseeability;
Lord workers leave accident happened is not Cause Matter of
Advocate kerosene foreseeable, defendant can Scope of Risk Occurrence
lamp. Kids still be held liable. Rest. 29, Proximate
playing near Negligently leaving the Comment O Cause
manhole lamps, unsupervised, had
knock lamp - the foreseeable risk of
 33
explosion causing fireregardless of
the gravity of such a fire.
Liable.
The mere fact of manner in
which an accident occurred
is not enough to relieve
liability. Concentration was
placed on the manner of the
accident which was too
narrow
Marcus v. After party, If not reasonably Proximate p. 223 Car; minors;
Staubs severely foreseeable, breaks chain of Cause alcohol
intoxicated, causation. Intervening
stole a vehicle Intervening acts break chain Acts
and picked up of causation
two sisters.
crashed
Killing
Samantha and
injuring
Jessica

Delaney v. Girlfriend Suicide can be a Intervening p. 228 Intervening act;

Reynolds uses superseding cause (whether Acts Suicide suicide;
boyfriends she was suicidal is jury foreseeable risk
gun to shoot question) Foreseeable
herself When the intervening cause Risk
is foreseeable, the causal
chain of events remains Rest. 34
intact and the original (com. B)
negligence remains a
proximate cause of s
injury
When intervening cause is
foreseeable, the causal chain
of events remains intact and
original negligence remains
proximate cause of injury
P can say manner of
occurrence = irrelevant
Derdiarian Driver didnt Not a superseding cause Foreseeability p. 230 Foreseeability;
v. Felix take meds. because foreseeable that a Intervening/S Car;
Drove. Hit job car would enter area and uperseding Employee
site on cause the enamel to splash Cause
highway. Hot as a result of lack of
enamel on P. reasonable protection.
If the intervening cause is
foreseen or might have been
foreseen by the first actor
 34
his negligence may be
considered the proximate
cause, notwithstanding the
intervening cause
An intervening act may not
sever liability as a
superseding cause where the
risk of the intervening act
occurring is the very same
risk, which renders the actor
negligent ( was in a
position of heightened
danger).
Foreseeable intervening
forces are within the scope
of the original risk and
hence the defs negligence.
So these causes do not
supersede the defs
responsibility.
Ventricelli Trunk lid The law refuses to trace a Intervening p. 233 Car;
v. Kinney open, fixing series of events beyond a Acts
in parking certain point. Proximate
space, hit cause is a convenient Foreseeability
from behind formula for disposing of the
case.
Plaintiff could have been
loading or unloading the
trunk and the same accident
could have happened
To hold defs negligence as
proximate cause of the
accident is to stretch the
concept of foreseeability
beyond acceptable limits.
Marshall v. Snowy road, The scope of risk from a Termination p. 235 Car;
Nugent truck came, defendants negligence can of Risk
car in ditch. be extended in temporarily
Walked up and geographically,
hill to flag depending on the
cars and was circumstances
hit by Terminated risk: defs
motorcycle conduct created a risk but
the risk so created no longer
exists. P had reached
apparent safety.
 35
Element #5: Proximate Cause

Three-Part Test for Proximate Cause:

1) Is P the type of person with respect to whom the injury would be foreseeable?
2) Is the general mode of injury foreseeable (look at the type of risk that is foreseeable)
3) Is the injury itself of the type that is foreseeable?
Exception: Inherently Dangerous Activities: There are some activities that are so inherently dangerous
(i.e. shooting a gun, operating a power plant) that we do not need to prove that D was negligent with respect
to a particular person

o 431 What constitutes legal cause

The actors negligent conduct is the legal cause of harm to another if
his conduct is a substantial factor in bringing about the harm, and
there is no rule of law relieving the actor from liability because of the manner in
which his negligence has resulted in the harm
o 435 Foreseeability of harm or manner of its occurrence
If the actors conduct is a substantial factor in bringing about harm to another, the fact that
the actor neither foresaw nor should have foreseen the extent of the harm or the manner in
which it occurred does not prevent him from being liable
The actors conduct may be held not to be a legal cause of harm to another where after the
event and looking back from the harm to the actors negligent conduct, it appears to the court
highly extraordinary that it should have brought about the harm

The Risk Standard/Scope of Risk Principle (Rest. 3d. 29, 30):

29 Actors liability is limited to those harms that result from the risks that made the actors
conduct tortious
Scope of liability What would you expect the negligence to result in? (Depends on facts
of each case)
30 An actor is not liable for harm when the tortious aspect of the actors conduct was a type that
does not generally increase the risk of that harm

Specific Evolved Rules:

1) Thin Skull Cases (Rest. 3d. 31)
a. The fact that the harm was much worse than anyone would have expected does not limit
liability
i. The Defendant takes the Plaintiff as she is or whatever extra damages the
plaintiff might have suffered b/c of a pre-existing condition
b. Thin skull victims injuries are basically unforeseeable Foreseeable Doctrine =
inconsistent w/ thin skull rule (eventual harm is unforeseeable)
c. Does not impose liability w/o fault Defendants acts must have been one that would cause
some harm to a normal person or Defendant knew or should have known of Plaintiffs
condition
 36
i. Plaintiff still has burden of proof by a preponderance of evidence That the
Defendant actually caused harm that aggravated pre-existing condition
2) Rescue Cases (Rest. 3d. 32)
a. Rescue Doctrine The rescuer can recover from the defendant whose negligence prompts
the rescue
i. Danger invited rescue Rescue = foreseeable as matter of law; Even if not
foreseeable, still liable
b. Includes cases in which the defendant negligently injures or endangers himself and the
plaintiff is injured in attempting rescue
3) Manner of Occurrence Cases (Rest. 3d. 29, Comment O)
a. Manner of occurrence argument: an injury is an injury the manner it happened in does not
matter. The type of harm that happened is the type of harm that u would expect from the
original risk of harm created by defs conduct (Hughes, Dardarian)
4) Enhance Harm Due to Aid Efforts (Rest. 3d. 35)
a. 34 Element #2 principle and see if the kind of thing that happened was within the risk
that made the conduct negligent Negligent conduct b/c you failed to lessen the following
risk
i. Comment B Intervening acts or superseding causes
b. 35 An actor whose tortious conduct is a factual cause of harm to another is subject to
liability for an enhanced harm the other suffers due to the efforts of the 3rd persons to rend
aid reasonably required by the others injury, so long as the enhanced harm arises from the
risk that inheres in the effort to render aid
c. EXCEPTIONS = If the risks of harm are different than the risk of the normal procedure to
render aid, then the actor is not liable for the unusual enhanced harm

When Intervening Acts Supersede (Rest. 3d. 34):

34 When a force of nature or an independent act is also a factual cause of harm, an actors liability
is limited to those harms that result from the risks that made the actors conduct tortious
o Comment B Intervening Acts of Superseding causes
D does something negligent, creates risk to others, then somebody else acts (intervening)
Intervening cause so something different happens after the negligence
Intervening Act of 2nd tortfeaser should relieve 1st tortfeasor of liability only when the
resulting harm is outside the scope of the risk negligently created by the 1st tortfeasor
If the intervening agency is something so unexpected or extraordinary as that
could not or ought not to have anticipated it, he will not be liable and is not bound
to anticipate the criminal/tortious acts of others.
Intervening criminal acts dont waive liability when the very negligence alleged
consists of exposing the injured party to the act of causing the injury.
o I.e. leaving tenants key where rapists could obtain them
Superseding When the proximate cause chain stops (breaks causal chain)
Defendant is no longer liable after that
Ask: Was the negligence superseding or not?
 37
If a precaution against these forces of nature or independent acts would have stopped them, then the
intervening acts do not supersede and the original negligent conduct is liable
If harm is within the scope of the defendants negligence, then not an intervening act
Trivial Contributions to Multiple Sufficient Causes is NOT Within Scope of Liability
o 36 When an actors negligent conduct constitutes only a trivial contributions to a causal set
that is a factual cause of harm under 27, the harm is not within the scope of the actors liability
Suicide Rule:
o Traditional Rule = Where a plaintiff intentionally attempts to commit suicide, that act is
superseding cause, freeing defendant from liability for negligence
o Rest. 45 Flexible test Defendant must have special relationship w/ decedent and induce
the uncontrollable illness through a tortious act

Last Clear Chance or Discovered Peril:

In the traditional system that barred all recovery for contributory negligence, courts allowed the
negligent P a full recovery when:
o P was left in a hapless position by his on negligence and the D, who had the last clear chance to
avoid injury, negligently inflicted it anyway.
The last clear chance doctrine held that:
o If the D discovered or should have discovered P's peril, and could reasonably have avoided it, the
P's earlier negligence would neither bar nor reduce the P's recovery
Discovered Peril Doctrine A slightly less generous version of last clear chance
o Applied these rules only if the D actually did discover the P's peril
P could not invoke these doctrines unless he was helpless and couldn't extricate himself from danger at
any time
In states that have adopted comparative fault systems, the last clear chance and discovered peril doctrines have
been discarded, mostly on the grounds that they were attempts to aid the P in a harsh system and not needed
once comparative fault rules apply

D's Reckless or Intentional Misconduct: Contributory negligence was historically no defense to an intentional
tort, nor to willful, wanton or reckless torts, defined as involving utter indifference to or conscious disregard for
the safety of others. Under this rule the P charged with contributory negligence was allowed a full recovery
against a reckless or wanton D
Restatement of Apportionment 1 calls for application for comparative fault rules to all claims for personal
injury, death, and harms to tangible property, including suits against an intentional tortfeasor. But at the same
time it takes "no position" on whether a P's comparative fault reduces recovery against an intentional tortfeasor
 38
CONTRIBUTORY NEGLIGENCE/COMPARATIVE FAULT

CASE NAME Brief Rule TOPIC PAGE # TAG WORDS

Facts
Pohl v. County of 63 mph in Contributory Contributory p. 246 Contributory
Furnas 50 mph negligence Negligence; negligence;
zone. occurs when the Comparative Fault Car
Passed P breaches a
stop sign duty of care and
the breach
cooperates with
Ds negligence
to form the
proximate cause
of Ps injuries.

Bexiga v. Havir Minor In negligence Contributory p. 256 Contributory

Manufacturing operating cases the defense Negligence; Negligence;
Corp. a punch of contributory Comparative Fault Strict liability
press negligence has
been held to be Public Policy
unavailable Exceptions
where
considerations of
policy and
justice dictate.
No contributory
negligence as
defense to
negligence or
strict liability
Christensen v. , a A p cant be Comparative p. 262 Student/teacher;
Royal student, comparatively Negligence child; duty
was negligent if the p
sexually (who is under Rest 3d. 4
abused by 16) had no duty
a teacher to exercise care
to protect
her/him self
(lacked capacity
to consent and
has no legal duty
to protect
herself).
A child lacks the
capacity to
consent to the
sexual abuse and
is under no duty
 39
to protect
himself or
herself from
being abused.

Oullette v. Carde Garage One who sees a Rescue Doctrine p. 266 Rescue; imminent
door person in danger
opened by imminent danger
plaintiff caused by the
caused negligence of
explosion another cannot
be charged with
contributory
negligence
unless the
rescuer acted
negligently
Davis v. Mann If the defendant Last Chance p. 266
discovered or
should have
discovered the
plaintiffs peril,
and could
reasonably have
avoided it, the
plaintiffs earlier
negligence
would neither
bar no reduce the
plaintiffs
recovery
 40
COMPARATIVE FAULT

Comparative fault
Before it was all or nothing (traditional rule of complete defenses)
o With comparative fault the notion is that
Parties who are liable are given % of responsibility for the injury:
o So now the jurys job is different:
Must decide % including the ps faults and find total amount of damages.
Quantitative bars:
o Modified Comparative Fault Bar
If more than 50% of fault is plaintiffs, then no recovery
o Greater Fault Bar
If the fault of the p is greater than the defs fault then the p is barred and gets nothing (51%)
o Equal Fault Bar
If fault is equal then p are barred.
So 50% 50% comparative fault so the p is barred and gets nothing

Categorical Bars (illegal activity, rescue) Even in comparative fault u still get these categorical rules and
your case is dismissed if you are engaged in criminal activity or rescue (must prove reckless not just
contributory negligence)
1) Illegal activity:
Barker vs. Kallash15 yr old sues 9 year old who gave him the pipe bomb stuff
Sometimes the court says even in comparative fault system once its determined that u are
engaged in a level of criminal activity your case gets thrown out.
You dont get to sue!
2) Rescue doctrine:
In cases of rescuers: a reasonable person would not have gone to the rescue or wouldve done
the rescue in a careful manner. Sometimes the court say the rescuer gets injured against def
pleads or the rescuers own negligence, def must show recklessness.
Jury entitled to take into account the emergency circumstances.

Related Issues to comparative fault:

o How do you get your $? You get a judgment with % in it and now to get your money
Joint and several liability
10: multiple defs each with a % of responsibility for the injury. P Can go to any of
the defs and enforce the judgment against them for the FULL amount that u are
entitled to.
o This is so that the p doesnt get nothing if the def has no money, so go to the
def that has money to get it. Biggest chance of collecting
Example: p is injured in car accident. Jury decides that def is 20% at fault and also
decides the car dealership is 70% at fault for the car issues and car manufacturer is
10% liable for design of the car
o P doesnt collect the 20% that is Ps own fault from anybody.
 41
o P can go to the GM car manufacturer and get the other 80% even though
70% is the car dealership.
Go where its easiest to collect your money from the corporate players
deep pocket
14: if def failure to protect the p from a specific risk of intentional tort then that def
is jointly and severally liable
o Property owner who had duty to protect you and breeched that duty AND the
person who did the battery then they are jointly and severally liable. Building
owner has to pay what the jury assigned to the assailant who has probably no
$.
Only several liability 11
You are only responsible for paying your own percentage. So if the car manufacture
was 10% and car dealership was 70% then you have to get only those % from each.
o And if def goes bankrupt then the p looses that money
Separate quantitative bars for joints and several liability:
If 2 defs are jointly and severally liable but the jury gives less than 25% fault to one
of them. (Statute says the % that u cant ask for the full %). Then that def is with less
25% they are not liable to the other defs. p cant collect from the 25% def the 100%,
def only got a little amount of fault and the other def has pay the other party. P has to
figure out how to get that money from the other def who probably cant pay it.
Reallocating the judgment costs
1) Contribution among joint tortfeasers:
a. If u get full amount from one def the payer can go to the other def and get the money back.
2) Indemnification:
a. Vicarious liability for respondent superior, the employer pays for negligence of employee but
has right to get the money from the employee.
b. Rule of indemnification so somebody else had to pay u back.
c. Law entitles u to that but probably cant get it
3) Credit for Settlements:
a. You dont get more than the amount the p is entitled to.
i. Sue 2 defs. Settle with one for 20k. The other def takes it to court and jury gives u
100k. The 20k that u got in settlement gets deducted from the 100k. So the other def
only pays 80k.
b. Comparative fault makes settlement more complicated:
i. The def that settled still gets a % from jury though. Jury says 30% for settler. And p
only got 20k. Then p made a bad deal and lost 10k. The remaining def that jury said
70% at fault pays 70K not 100k.
 42
CONTRIBUTORY NEGLIGENCE

Contributory Negligence: conduct on the part of the P which falls below the standard to which he should
conform for his own protection, and which is a legally contributing cause co-operating with the negligence of
the D in brining about the P's harm
Its an all or nothing defense:
o If the p did something relatively minor - failure of exercising ordinary care for own safety - then
no recovery even if def was negligent.
All-or-nothing judgments after comparative faults
o Comparative fault only at issue if both parties are negligent.
If p did nothing to cause a actual or proximate cause then no comparison is needed
o If Ps negligence is not the actual cause of injury then compare faults
o Ps injury that is not within the scope of the risk created by ps negligence:
So ps fault is disregarded because the injury suffered was not within the risk created by
that fault.
o If ps fault is a superseding cause of the harm then no recovery at all.
o Def and p cause separate injuries then the causal apportionment of separate injuries is wrong.
Def only liable for the one that the def caused.
o P must try to minimize damages--caused by the def--by reasonable effort or expenses.
If not, the def is not to pay for a lost leg when all he caused was a bruise.
Patients who may have negligently injured themselves are nonetheless entitled to subsequent non-
negligent medical treatment & to an undiminished recovery if:
o Such subsequent treatment is negligent.
o Not held for their own initial negligence then, but get full recovery for the doctors negligence.
In contributory, a s disability or vulnerability might be especially important if:
1) The knows of the s disability which prevents or inhibits the s care for himself
2) The s risky conduct endangers himself but not others

Contributory negligence v comparative fault:

Contributory negligence is the name of the affirmative defense
Comparative fault is the name of the system.

Strict Liability:
If you engage in inherently dangerous conductthat might be strict liability in the jurisdiction. The
prima facie case is that the P was engaged in the conduct, and that conduct was the cause of the injury
(proving that you engaged in the activity that caused the injury). Those strict liability casesno need
to prove negligence. Those cases can be included in the comparative fault system.

Primaryno liability, all or nothing

Secondarypercentage of fault
 43

ASSUMPTION OF RISK

CASE NAME Brief Rule TOPIC PAGE # TAG WORDS

Facts
Stelluti v. Spinning Risk may be Exculpatory p. 269 Contract
Casepenn class; bike shifted via Contracts
Enterprises falls contract where
the parties
voluntarily enter
and have other
viable options
Tunkl v. Regents Hospital In this situation Exculpatory p. 270 Hospital; Waiver
of University of admittanc the releasing Contracts- Public
California e, waiver party does not Policy
of really acquiesce
negligenc voluntarily in the
e contractual
shifting of the
risk. Public
policy cannot
shift the risk.
Moore v. Hartley ATV ATV contract Assumption of p. 271 Assumption of
Motors contract for non-essential Risk Risk
for non- service was
essential risk inherent or Rest 3d.
service beyond? 2:Apportionment
If danger can be of liability (p. 169)
eliminated or
lessened through
reasonable care,
then not an
inherent risk of
sport. If not an
inherent risk,
then defendant is
not liable
Betts v. Crawford Housekee Merged assumed Assumption of risk p. 276 Assumption of
per gets risk and Comparative Fault risk;
injured contributory Comparative Fault
negligence into
comparative
fault system.
Housekeeper
assumed risk and
both had
contributory
negligence
 44
Avila v. Citrus P was hit Doctrine of Assumption of p. 179 Primary
Community intentional Primary Risk assumption of risk;
College District ly during Assumption no Secondary
baseball duty assumption of risk
and got a Secondary
concussio contributory
n negligence (p.
279)
Being
intentionally
thrown at is an
inherent risk of
sport of baseball
Policy: dont
want tort law
interfering with
nature of sport
(taking and
creating risk)
 45
Assumption of Risk

Traditional Elements of Assumption of Risk:

Defendant must produce sufficient evidence and persuade the jury that:
1) Plaintiff had knowledge of the risk of danger
2) Plaintiff appreciated that risk
3) Plaintiff voluntarily exposed himself or herself to the risk

Rest. 3d. 2 Appointment of Liability

Contractual Limitation on Liability (Comment C)
o Written agreement, express oral agreement or conduct that creates an implied-in-fact contract
In appropriate situations, the parties to a transaction should be able to agree which of them should bear
the risk of injury, even when the injury is caused by a partys legally culpable conduct. That policy is
not altered or undermined by the adoption of comparative responsibility. Consequently, a valid
contractual limitation on liability, w/in its terms, creates an absolute bar to a s recovery from the
other party to the K.
o No apportionment allowed

(Primary) Assumption of Risk:

Definition: A person who is aware of a risk, and knowingly decides to encounter it, accepts
responsibility for the consequences of that decision, and may not hold a D who created the risk liable
for resulting injury
1. Elements:
a. Must know of danger;
b. Appreciate the risk; AND
c. Voluntarily encounter the risk

Primary Assumption of Risk

owes no duty to protect the from particular harms.
o In a sporting context, it precludes liability for injuries arising from those risks deemed
inherent in the sport. (Low duty/no breach)
s duty = to not increase inherent risksdont be reckless
o Inherent risks are the obvious or inherent risks of a sport.
A will have engaged in an activity where the has a lower standard of reasonably
prudent care.
This is not an affirmative defense

Secondary Assumption of the Risk:

P, after becoming aware of the unreasonable risk/negligence created by D (i.e. setting off fireworks in
the street), chooses to encounter it (go near it) and suffers injury.
P's choice is secondary (comes after) D's negligence.
o This could be contributory negligence OR assumption of the risk, but wouldn't be cont. neg. for
reasonably assuming a risk
 46
a. In most comparative negligence regimes, unreasonable (just like reasonable)
assumption of the risk is treated as a form of P's negligence, which reduces a P's
recovery rather than barring it

Secondary Implied Assumption of the Risk: arises when the still owes a duty of care, but the knowingly
encounters the risk attendant on the s breach of that duty.
The is accepting a s negligent when the is not behaving as a reasonably prudent person would.
The same as express waiver of the risk.
o It is implied though from the s conduct.
o We determine the implied assumption from:
1. knows of s negligent
2. acts voluntarily
E.g., - Schechter picks up a friend and is drunk. Yet, the friend knows he is drunk and
still takes the ride.
1. Yet, if the needed to go to the hospital (it would not be voluntary)
Secondary implied assumption of the risk results in a comparative fault analysis: secondary assumption of
the risk is contributory negligence.
o If you have secondary assumption partial recovery.
o If you have primary assumption of the risk no recovery.
o Know there will be drunk drivers on parkway, which type?

Trend: personal injury cases arising out of an athletic event must be predicated on reckless disregard for
safety.
o Where one sports participant sues another for an injury sustained during the sport, the must prove
that the acted recklessly or worse.
o State legislatures have begun passing statutes to protect particular groups of s.
For example, one state has a skiing is inherently dangerous statute.
Primary assumption of the risk or limited duty rules are routinely applied to bar claims by
spectators injured by risks inherent in the games, such as a foul ball or

Implied v. Express Assumption of Risk:

Express = contract law, written release/agreement to waive opportunity to sue for negligence before
undertaking an activity
Implied = Ps conduct shows contractual willingness to relieve D of liability

4 Prongs as to when Agreement is Involuntary/Against Public Policy:

1. Whether the business is suited for public regulation (i.e. hospitals); AND
2. Whether the services are of great concern and importance to the public (essential service); AND
3. D holds himself out as performing services for a general public, not a private club (i.e. anyone can
go to a public hospital), and
4. Whether D has an excessive advantage in bargaining strength (in an emergency, you don't have time
for other options)
 47
Fireman's Rule: [covers police officers and other public officials charged with the maintenance of public
order]
When a public officer responds to a fire alarm or a request for police assistance brought about by the
negligent or indeed criminal conduct of the D, recovery is barred for injuries thereby incurred
o This is based squarely on assumption of risk: one who has knowingly and voluntarily confronted
a hazard cannot recover for injuries sustained thereby
o It is the fireman's business to deal w/ this very hazard, so he cannot complain of negligence in
the creation of the very occasion for his engagement. For this risk, he should be compensated
adequately, however.
o If fireman were responding to arson and gets killed, he would be able to recover since that is not
part of his duty and arson is negligent per se, plus public policy would favor his recovery by not
encouraging arson

Assumption of Risk and Comparative Fault:

3 major options (usually 1+2 or 1+3)
1. Still a complete affirmative defense (e.g., express assumption of risk, contractual limitation on liability
(restatement 2) or primary assumption of risk
o Survives the move to comparative fault.
2. Still an affirmative defense going to percentage of fault (jury instruction on 2ndary assumption of
risk)
o Secondary Implied Assumption of the Risk: arises when the still owes a duty of care, but the
knowingly encounters the risk attendant on the s breach of that duty.
o Hard to find.
3. Abolish Secondary as separate affirmative defense (merge with comparative fault)
o Dont get a 2nd jury instruction; just get the contributory instruction so they can assign a
percentage of fault.
o Betts case p. 244jury finds for p reduces her damages 15% and assumed risk is now merged in
the comparative negligence system.

Notes:
If you waive your rights to sue for ordinary negligence of others such releases are unenforceable if they
offend public policy or if they are unclear or ambiguous.
o Even if the release passes these 2 tests: court must see if the risk that caused the injury was
within the scope of the release.
Courts said cant contractually waive recovery for recklessly or intentionally caused injury: would be
offensive to public policy.
Releases in recreational activities are usually upheld as long as they are clear and unambiguous
The Restatements position on implied assumption of the risk (contracts):
o If the reasonably believes that the has accepted the risk, the may not be negligent at all in
relying on the to achieve safety.
o Recognizes a separate and complete defense based on contractual assumption of the risk.
Traditional implied assumption of risk was that p knew the risk, appreciated its danger and
voluntarily confronted it so the p takes nothings. All or nothing rule. Few states follow it.
 48
3 comment C: if p unreasonably confronts a known risk, her negligence in doing so reduces her
recovery of damages.

Defenses not on the Merits:

Statutes of limitation
o The statute of limitation commences running from the date of injury or the date of the alleged
malpractice.
o Shearin Rule: The statute of limitation starts running when the plaintiff can sue on a claim since
if he can sue the claim must have accrued. A cause of action grows so as to start the running
of the statute of limitation as soon as the right to institute an action arises.
Factually the p cannot know as soon as the incision closed that he could so but apparently
that was because of ps own ignorance since he had the legal right to sue then.
o The Shearin Rule changed because it was too harsh
Discovery rule adopted
Delays the accrual of the claim until
1. All the elements of the tort are present
2. The p discovers or a reasonable person should discover both the injury
and the defendants role in causing it.
Problem with this is that discovery depends on the facts of each case
Another issue = when SHOULD the p discovered the injury and its likely cause?
o For later potential harm most courts have followed this rule:
Reject enhanced risk recovery but allow present damages and leave open the possibility
for a 2nd suit if substantially different kinds of damage occur.
This would allow recovery for cancer if it later develops.
So rejects the Lord vs. Lovett idea of getting $ for future injuries %
o Childhood sexual abuse cases
Few states reject the discovery rule in these cases. Others have treated the repressed
memory as if the abuse had never been discovered and apply the discovery rule.
Traditionally the statute of limitation would freeze till the child became an adult and
could sue. Some states now however say the minor victim must bring the suit before they
reach adulthood.
Compliance with statute
o Compliance with statute or regulation is not a defense.
Statutory requirements usually reflect a min standard of care and not a max obligation.
Compliance is SOME evidence of reasonable care even though it is not
conclusive
If the def knew or should have known of some risk that would be prevented by
reasonable measures not required by the regulation, they were negligent if they did not
take such measure.
o Statute just sets the floor of duty of care and if greater care is required then a def should know or
knows the other risks not stated by the regulation.
 49
o Federal law is supreme over state law. If the federal law is clear and manifests purpose of the
congress then state law cannot conflict with the federal provisions.
This means no tort law and the p is left without remedy if the def has followed federal
regulations
Even if the def violated fed regulations, they maybe given preclusive effect. So the p is
left to get federal remedies but congress often does not give a federal remedy so again no
legal recourse at all for p.
 50
CARRIERS, HOST-DRIVERS & LANDOWNERS

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Doser v. Bus collides Higher standard of care of Land p. 299 Landowners
Interstate with carriers (most courts now Possessors
Power Co. automobile reject this)
A common carrier has a duty
of care to passengers to use
highest degree of care a
carrier of passengers for hire
must exercise more than
ordinary diligence for their
protection. It is bound to
protect its passengers as far
as human care and foresight
will go and is liable for slight
negligence. Also the high
degrees of care must be
exercises in FORESEEING
as well as in GUARDING
AGAINST danger.
Burden shift under element
#2
Gladon v. Went to Duty owed to trespassers and Land Possessor p. 301 Trespasser
Greater baseball licensees = no duty except to Trespasser Licensee
Cleveland game, refrain from willful, wanton, Duty
Regional drank, was or reckless conduct
Transit chased, and Invitees are persons who Rest. 50,
Authority was on rightfully come upon the comment C
tracks and premises of another by
was struck invitation, express or Rest. 18
by train. implied, for some purpose warn when you
Claimed beneficial to the owner. know
When a trespasser or licensee
is discovered in a position of
peril a landowner is required
to use ordinary care to avoid
injuring him.
Bennett v. Kid and Court has traditionally held Landowner p. 307 Child; mother;
Stanley mother die that children have a special Trespasser pool
in pool with status. duty
rainwater Duty of care is greater than Attractive
and algae that required to an adult Nuisance
under the same Doctrine
circumstances. Rescuer
Landowners duty is defined
by the status of the plaintiff
and that children, even child
trespassers, are accorded
 51
special protection
(reasonable care). The
attractive nuisance doctrine.
Policy: shes a rescuer who
gets hurt and injured in the
course of the rescue so give
the rescuer the same status
on the land as the person
being rescued. So the same
duty owed as the person
being rescued.
Kentucky Licensed General Rule = land Land possessor p. 312 Hospital;
River paramedic possessors owe a duty to curb;
Medical (P) invitees to discover dangerous
Center v. transports unreasonably dangerous conditions
McIntosh patient. conditions on the land and to
Tripped on either correct them or warn
curb. Sues them
hospital Open and obvious doctrine
not here

Minnich v. P was hire Firefighters = licensees Firefighter p. 318

Med-Waste, by hospital South Carolina didnt Rule
Inc. as safety recognize rule didnt want Rest. 51
officer. to single out firefighters and
Jumps create discriminatory
inside treatment.
rolling truck o Ordinary Rescuer
Rule applied
 52
Carriers, Host-Drivers & Landowners

Limiting Duty of Care

1. Carriers and Host Drivers
o Doser case a carrier of passengers for hire must exercise more than ordinary diligence for their
protection. It is bound to protect its passengers as far as human care and foresight will go and is liable
for slight negligence. Also the high degrees of care must be exercises in FORESEEING as well as in
GUARDING AGAINST danger.
o POLICY: Higher standard for carriers is so that passengers should feel safe when travelling.

Landowners Duties to Trespassers, Licensees, Invitees and Children:

o Restatement 51 p. 164, exception to landowners getting duty is chapter 7 of restatement p. 130
o 52: the restatement does something that the courts have not done yet: flagrant trespassers.

49. Possessor Of Land Defined

A possessor of land is
(a) A person who occupies the land and controls it;
(b) A person entitled to immediate occupation and control of the land, if no other person is a possessor
of the land under Subsection (a); or
(c) A person who had occupied the land and controlled it, if no other person subsequently became a
possessor under Subsection (a) or (b).
Owners--: possessor who is in control of the land.
Control means that the he can take the ability to take precautions to reduce the risk of harm to entrants on
the land.
Multiple possessors each would have duty to the portion they control.
Guests or non-possessory actors present on land have no duties unless they act as an agent for the
possessor.
o Agents or employees are treated as possessors.
o Employees who have finished their work are not land possessors anymore but can be held negligent
for normal negligence.
o If you still have legal control of the land you are the possessor so abandonment or default on a
mortgage or foreclosure doesnt matter.

50. Trespasser Defined

A trespasser is a person who enters or remains on land in the possession of another without the
possessor's consent or other legal privilege.
o Consent is words, conduct or non-action of possessor regardless of intent.
Consent under duress, misrepresentation or fraud are ineffective
When trespasser can enter land despite lack of consent:
1. To avoid an imminent public disaster,
2. To prevent serious harm to the actor, land possessor or third person,
3. To reclaim goods and
4. To permit law enforcement activities.
 53
51. General Duty Of Land Possessors
Subject to 52, a land possessor owes a duty of reasonable care to entrants on the land with regard to:
1. Conduct by the land possessor that creates risks to entrants on the land;
2. Artificial conditions on the land that pose risks to entrants on the land;
a. Artificial conditions = things u made or had constructed in your land.
i. A land possessor has duty to identify risks that exist on the land but if the risks are
not reasonably to be discovered then not liable for the risks because he has not
reached
1. So if a previous owner created something that was dangerous and u could
not reasonably know it then u are not liable
3. Natural conditions on the land that pose risks to entrants on the land;
a. Natural conditions = not man made.
i. Bodies of water, animals, plants, trees.
b. You are still responsible for these risks.
i. Must identify the risks that a reasonable person would see.
4. Other risks to entrants on the land

Precautions are either durable or transient:

o Transient Precautions = are oral warnings you give which then vanish.
See if unanticipated entrants and if possessor knew they were there then he must give oral
precaution.
o Durable Precaution = remain in place for a longer period of time.
More burdensome and are not required unless the risk of harm > burden of taking the
durable precaution.
There is a duty to exercise reasonable care on behalf of trespassers minus flagrant trespassers
o Exception = If trespasser is unforeseeable, then no precautions are required unless the risk was
foreseeable.
No foreseeable risk no liability.

51 Comment K
Open and obvious dangers pose a reduced risk to comparable latent dangers because the exposed can
take precautions to protect themselves.
o Even then, if there are residual risks then landowner is liable.
Land possessors have a reasonable care to those residual risks.
Its not a rule but can find a matter law of element 2.
o If danger were open and obvious, a warning would not give additional protection so it be
superfluous so no liability for not giving warning.

51 Comments L: Child trespassers

o A child who is aware of danger and unreasonably confronts it may have his damages reduced but
recovery is not barred.
o If immature and impetuous youth comes in land and violates the landowners rights, the child is
a flagrant trespasser then.
 54
Firefighters:
Traditionally they were counted as licenseesunanticipated entrance but had privilege to enter land
Some jurisdictions no longer rely on the status of the rescuer
1. Professional rescuers are paid by taxpayers to do the risk of their job so the negligent taxpayer
shouldnt have to pay twice.
2. They get workers compensation for their job injuries.

Rest. 2d. 343(A)(2):

If a land is open to public and more entrants can be anticipated a reasonable possessor would anticipate
greater risk and requiring greater precaution than if land is private and few entrants

52. Duty Of Land Possessors To Flagrant Trespassers:

a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional,
willful, or wanton manner to cause physical harm.
b) Notwithstanding Subsection (a), a land possessor has a duty to flagrant trespassers to exercise
reasonable care if the trespasser reasonably appears to be imperiled and
1) Helpless; or
2) Unable to protect him- or herself.
Flagrant egregious or atrocious but courts decide final meaning.
o Protect the rights of private property owners. So decide to what extent a flagrant trespasser they
are offensive to the rights of the landowner (Based on crime committed for example or malicious
motive to enter land)
1) There must be an intrusion on the possessors right of exclusive control and freedom to use
that property.
2) Culpable to the extent the flagrant infringes on the possessors rights.
3) Crime must be committed on the land in question and the person must be injured in that same
place.
Restatement just makes trespassers one category and all the possessor should do is (1) refrain from intentional,
willful or wanton conduct that harms a flagrant trespasser and (2) exercise reasonable care on behalf of the
flagrant who are imperiled and helpless.
However possessor would be liable for uninhibited and unimproved land for natural conditions
Possessor liable for any enhanced harm if the flagrant is injured and the owner does nothing.
Possessor can use self defense against flagrant Not liable for that.

53. Duty Of Lessors:

Except as provided in 52, a lessor owes to the lessee and all other entrants on the leased premises the
following duties:
o (a) A duty of reasonable care under 51 for those portions of the leased premises over which the
lessor retains control;
o (b) A duty of reasonable care under 7 for any risks that are created by the lessor in the condition
of the leased premises;
o (c) A duty to disclose to the lessee any dangerous condition (not open and obvious) that satisfies
all of the following:
 55
(1) It poses a risk to entrants on the leased premises;
(2) It exists on the leased premises when the lessee takes possession;
(3) It is latent and unknown to the lessee; and
(4) It is known or should be known to the lessor;
o (d) A duty of reasonable care for any dangerous condition on the leased premises at the time the
lessee takes possession if:
(1) The lease is for a purpose that includes admission of the public; and
(2) The lessor has reason to believe that the lessee will admit persons onto the leased
premises without rectifying the dangerous condition;
o (e) A duty of reasonable care:
(1) For any contractual undertaking; or
(2) For any voluntary undertaking, under 4243, with regard to the condition of the
leased premises;
o (f) A duty based on an applicable statute imposing obligations on lessors with regard to the
condition of leased premises, unless the court finds that recognition of a tort duty is inconsistent
with the statute;
o (g) A duty of reasonable care to comply with an applicable implied warranty of habitability; and
o (h) A duty of reasonable care to lessees under 40, Comment m, as well as any other affirmative
duties that may apply. See Chapter 7.

If lease a public area then subject to a higher duty than the duty provided in D
o Lessor should tell lessee then here to fix it, if lessee doesnt lessor must.
Contractual limitation on liability:
o Depend if they are unconscionable or violate public policy.
Many courts find the contractual limitation of a landlords liability unenforceable per se
(RESIDENTIAL leases).

54. Duty Of Land Possessors To Those Not On The Possessor's Land

A. The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land
that poses a risk of physical harm to persons or property not on the land.
B. For natural conditions on land that pose a risk of physical harm to persons or property not on the
land, the possessor of the land
1) Has a duty of reasonable care if the land is commercial; otherwise
2) Has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
C. Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under
this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if
the land possessor did not create the risk.

Commercial land has a duty of reasonable care for all natural conditions.
o Risks are only those that are known to the land possessor or shouldve been know because they
are obvious.
 56
Invitee:
Enters w/ permission and w/ the purpose of conferring pecuniary benefit on the landowner [business
invitee]
Enter b/c the property has been declared open to one and all. [Public invitee]
injured by activity: ordinary care (reasonable care under the circumstances)
injured by static condition: ordinary care
Including a duty to conduct a reasonable inspection to discover and correct hazards
If a hazard is obvious, no action may be necessary unless entrant is likely to be distracted
(OSullivan v. Shaw)
o What about a guest?
They have permission
In traditional view they would be licensees. Because they dont benefit the landowner. Some
courts count the guest as inviteeYou owe them the level of safety you live with.
Licensee:
Enters w/ permission to premises that are not generally open to public.
o Includes social guests
injured by activity: ordinary care (reasonable under circumstances)
injured by static condition: limited duty to protect against harm from a
o (1) Concealed condition, (concealed = not open and obvious)
o (2) The existence of which is known by the landowner.
Sometimes phrased as a duty to protect only from willful or wanton injury.
No foreseeable harm = no duty to warn.

Discovered Trespasser/Foreseeable Trespasser:

injured by activity: ordinary care (334)
injured by static condition: only owes a duty to protect only from a condition that is (335):
Artificial,
Highly-dangerous (a really high degreelike death),
Concealed, and
Known to the land-occupier.
Sometimes phrased as a duty to protect from willful or wanton injury

Undiscovered Trespasser:
injured by activity: No Duty
injured by static condition: Generally no duty.
Sometimes phrased as a duty to protect only from willful (i.e. intentional), or wanton (i.e.
reckless) injury.
For children of tender years, duty to protect from artificial conditions if trespassing can be
anticipated and children cannot appreciate danger for themselves under attractive nuisance
rule.
 57
Common law: Half of states follow the traditional common-law rules:
Landowners owe a duty of reasonable care to all invitees.
Landowners owes trespassers or licensees only the duty to avoid intentional, wanton, or willful injury
(undiscovered, no imminent danger)
Landowners may enjoy a privilege to use reasonable force to expel the trespasser to, for
example, defend his property.
If the landowner discovers the presence of the entrant and the fact that he is about to encounter
danger:
Some courts say the landowner who fails to act reasonably in the face of this known danger to
an entrant is guilty of wanton or willful misconduct
Others say the landowner owes a duty of reasonable care
Either way, the liability for failing to act w/ reasonable care in light of the known situation
Some courts impose a duty of care upon landowners who have not discovered the actual presence of a
trespasser, provided the landowner knows trespassers frequently use a limited area.
When performing affirmative acts, a landowner will often be held to a duty of reasonable care once
he knows a trespasser is present.
o In the case of licensees, the landowner is said to owe a duty of reasonable care to all licensees
in carrying out activities on the land.

Dangerous instrumentality doctrine (Rest. 2d. 339):

Imposes upon the owner or occupier of a premise a higher duty of care to a child trespasser when such
owner or occupier actively and negligently operates hazardous machinery or other apparatus the
dangerousness of which is no readily apparent to children.

Turntable Doctrine:
Its not the duty of an occupier of land to exercise care to make it safe for infant children who come
upon it without invitation but merely by sufferance. (Railroad cases)
The key elements should be whether there is a foreseeable unreasonable risk of death or serious bodily
harm to children.
o Even when there is an attractive nuisance, the landowner merely must act w/ ordinary care.
339 says you owe kids a duty of reasonable care with certain conditions.
o If you cant otherwise the kids are trespassers.

The Attractive Nuisance Doctrine:

When dealing w/ a child, the duty of care is to exercise reasonable care to prevent injury from a
foreseeable artificial danger.
Rest. 339:
Landowner is liable to children trespassing b/c of an artificial condition if:
o It is likely children are to trespass (tender years unlikely to appreciate danger)
o Neighbor has kids who wander around
o It will involve an unreasonable risk of death or serious bodily harm to such children
o Children, b/c of their youth, dont recognize risk involved
 58
o Utility of maintaining the condition and burden of eliminating it are slight
compared to the risk to the children
B<PL
Limited to children of tender years, as they are the ones that wont be able to perceive dangers for
themselves.
Teenagers are expected to understand risks for themselves

Reasonable care standard for landowners:

a. Modern Approach to Landowner Duty (Rowland v. Christian)
In states that have dropped the old distinctions for a reasonable care standard:
Old factors still have some probative value. Property owners maintain the right to
develop property for profit and enjoyment, even though there will be dangerous
conditions on it as a result.
1. He must take reasonable measures to prevent injury to those whose presence on
the property can reasonably be foreseen.
2. There should not be an unreasonable burden on the use of property since all that is
required is reasonable care. The can show that it would have been
unreasonably burdensome to do more (B<PL).
3. Plus, when a entered w/o permission, it will factor in that he trespassed.
a. It may well demonstrate that the s presence was not foreseeable at the
time and place of the injury.
Recreation on Private Land Statues:
Most states have now passed statues dealing w/ recreational users on private land and waters (not gov.).
They retain the landowners special immunities as to any non-paying recreational user. Typically only
gross negligence or willful or wanton misconduct creates liability.
Lessors
A lease is a conveyance of land. So the Lessee is the owner of the land for the period of the lease and the
lessor (owner) has no more responsibility for the upkeep of the land and is not liable for the lessee
injuries resulting form the conditions of the land.
Landlord owes no more to the tenant guests than he owes to the tenant himself, unless there is a contract
for repairs then he owes to the tenant.
 59
DUTIES OF MEDICAL & OTHER PROFESSIONALS

CASE NAME Brief Rule TOPIC PAGE # TAG WORDS

Facts
Walaski v. Surgery P must show Med Mal p. 329 Doctor; patient;
Tiesenga doctor standard what medical standard
cuts wide other doctors in
and same
doesnt circumstance
preserve would do
nerve
Vergara v. Doan Parents Abandoned Med Mal p. 334 Doctor; patient;
sue on modified locality birth
behalf of rule for Modern
son Standard of Care
doctor same care and
was skill of
negligent practitioners in
in birth same class and
no C circumstance
section
Harnish v. Tumor Informed Informed Consent p. 342 Warning; surgery
Childrens removal; Consent:
Hospital Medical severed Physician owes
Center nerves patient duty to
lost disclose all
tongue significant
function; medical
no information
warning material (a
of risk reasonable
patient would
want to know) to
an intelligent
decision by the
patient whether
to undergo a
procedure
 60
Med Mal

Medical standards:
Reflect particular customs or procedures used under very particular circumstances rule for the very
circumstance in the s case.
o Other physicians provide medical standard what the average, qualified physician would do in a
particular situation is the standard of care.
Jury instructions: must instruct about the medical standard not ordinary care;
o Doctor must possess the learning and ability of other actors and must exercise reasonable care in the
use of this knowledge and skill and must use his or her best judgment in the care of the patient.
May give honest mistake or no guarantee instruction for doc not liable too but
courts attacked this at times.
Expert medical testimony establishes the medical standard of care and if the p doesnt give such testimony
or it is inadequate to show the standard then the judge will direct a verdict for the def.
Where medical authority is divided on a treatment:
o The doctor is not responsible if he did the course of treatment advocated by a considerable number
of recognized and respected professionals in this field.

Abandoned modified locality rule for Modern Standard of Care:

Strict locality rule: look at doctors at the in the same community or town, look at level of care that is
provided in that town.
o Major drawbacks: scarcity of local doctors to serve as expert witnesses and practices of doctors
would establish a local standard of care below that which the law required. Problem = maybe
doctors wont testify against each other.
Modified locality rule the standard of care is the degree of care, skill and proficiency which is
commonly exercised by ordinary careful skillful and prudent doctors at the time of the operation and in
similar localities.Towns of this size, hospitals this size but somewhere in the state.
o This was made when travel and communications btw rural and urban areas were difficult so the
rule was made not to compare rural docs to urban docs
Now there is easier transportation and better education for the doctors so standard of care
should be same no matter where you are in Indiana.
Also growth of health care insurancemore choice about what doctors you want to go to
and u can just travel easier. Higher standard of wealth for the people as well.
o How do you decide similarity? And how do find it?
National standard of care:
o Negligent if you dont provide the level of care that is normally provided by the doctors in this
country
Modern standard of care:
o A doctor must exercise that degree of care, skill and proficiency exercised by reasonably careful
and skillful and prudent practitioners in the same class to which he belongs acting in the same
circumstances.
o Also consider advances in the profession, availability of facilities and whether the doctor is a
specialist or general practitioner.
 61
Notes
Specialists are held to the standard of their specialties: Relevant medical community = the community of
specialists, not a geographical community.
Non-medical practitioners such as chiropractors and podiatrists are permitted to practice according to
their schools of belief. They are subject to the standards of the school they profess, not to medical
standards.
Nurses: Courts now seem to assume that nurses are held to the standard of nurses in similar practice.
Hospitals: In performing their duties, hospitals owe a duty of reasonable care under national standards
fixed by the Joint Commission on Accreditation of Hospitals.
Pharmacists: Most states hold that pharmacists owe their clients no duty to warn of side effects that the
physician has prescribed in an excessive dosage or that a drug is counter-indicated, even though the
patient may be seriously injured if the prescription is filled.
o The pharmacist is liable only if he voluntarily undertakes to give appropriate warning and
negligently fails to do so.
o Some courts have held that a pharmacist owes a duty to warn when serious contraindications are
present or the drugs prescribed carry inherent risk.
Other callings, occupations, or activities: Courts often state that the prudent person standard of care by
referring to the care that should be exercised by a reasonable person in the s occupation or status as a
shorthand way of referring to the circumstances.
Architects, engineers, accountants and attorneys: For a learned profession or skilled trade, the
reference is to the custom or standard of the profession itselfthe professional setting is part of the
circumstances in a reasonable person standard.
o Expert testimony may be required to establish the risk and establish that the risk was a violation
of professional standards.
Educational Malpractice: Intentional or negligent torts may be sued under reasonably prudent person
standard. When the alleged educational malpractice is the product of training, testing, promotion,
failure, or classification of the student, the courts have not merely refused to provide a protective
professional standard, but said there is little duty or none at all.

Notes:
a. Battery Claims: Ghost Surgery another doc does procedure without patients consent or doc expands
surgery and operates on another part of body
b. Negligence claim against a doctor would need to show it was doctors duty to disclose info, which depends
on the medical community, and to show that requires expert testimony.
a. Some courts kept the negligence theory of informed consent but rejected the requirement of
proof from the medical community.
c. Causation: most courts made the p show that even though she herself would have refused the operation had
she fully been informed, she MUST show that the a reasonable person would have refused it.
 62
The Duty of Care in Informed Consent: Disclosure of (material or customarily disclosed) risks of
proposed medical procedure
Material = what a reasonable patient would want to know (Harnish)
Customarily discussed = disclosure is that of the reasonable medical practitioner
(Wooley)
It promotes patient autonomy
Encourage experimentation by doctors, as well as self-scrutiny
Its putting a label on medical procedures
Not considered battery
1. The rule is not to disclose all risks b/c there might be an infinite # and patient
might be misled by hearing too many
d. Informed Consent: What to disclose:
Must only disclose what information he should reasonably recognize is material to the
s decision, i.e.:
1. Nature of the s condition
2. Nature and probability of risks
3. Benefits expected
4. Success rate
5. Inability of the physician to predict results
6. Irreversibility of the procedure
7. In Ga., that the doctor does drugs
8. Likely result of no treatment
9. Available alternatives (their risks and benefits)
10. Fiduciary conflict of interest
e. Hybrid Causation for Informed Consent: New view: reasonable person standard in the light of the s
personal fears and religious beliefs
o The informed consent rules imply that the patient may refuse treatment even if they are dying or
need life-saving treatment;
Their right to bodily integrity must be preserved.

Doctors dont have to disclose statistical history of failures to get the informed consent not part of the risk
of the operation.
Doctor has no duty to disclose statistical life expectancy info because it was not information about the risk
of the procedures.

f. In Emergencies: no need for informed consent, b/c it is implied

a. There could be comparative fault, but a patient must fail to give truthful and complete family
history when it is material.
g. Refusal of a treatment or test: the doctor has duty to advice of all material risks of which a reasonable
person would want to be informed.
a. Such as the dangers of refusing the rest u cant assume the patient knows the fatal consequences
of her conduct.
 63
h. Statutory Responses to Medical Malpractice Crisis
a. Substantive:
i. The must prove actual negligence: no res ipsa loquitur
ii. Standard of care must be local or statewide, not national.
iii. Statutes of repose and statues of limitations have an absolute outside limit even when the
patient cannot discover the negligence for many years
iv. No malpractice claim may be based on a K unless the K is in writing
b. Remedial changes
i. State statutes limit damages and many include absolute caps on recovery
ii. Joint & several liability is limited
iii. Periodic payment plans are provided for large damage awards.
c. Procedural changes
i. Excluding expert testimony when they dont meet some arbitrary test
ii. Requiring the to submit her claim to arbitration or screening panels before suing or
permit Ks between patient and medical provider to require arbitration in lieu of tort
claims.
iii. Requires the to give notice of intent to sue and then forbids the suit for a waiting period
after that, w/ complex effects on the statute of limitations
d. Insurance challenges
i. Doesnt directly effect tort law, but facilitate insurance coverage
 64
NONFEASANCE

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Estate of P is shot when A party does not have an Duty p. 400 Affirmative
Cilley v. Lane he comes to affirmative duty to aid or warn duty;
ex-girlfriends another person in danger Rest. 42 - girlfriend;
trailer. She unless that party created the undertaking special
finds him danger or a special relationship relationship;
there and existed between the two people
doesnt seek that society recognizes as
help. He dies. sufficient to create such a duty
to aid/warn.
Wakulich v. 2 boys had One who voluntarily Duty p. 406 Drinking;
Mraz drinking undertakes to render services basement;
contest w/ 16 to another is liable for bodily Rest. 37 minors
yr old girl; harm caused by his failure to no duty
aided perform services with due care
(removed or which such competence and Rest. 42
shirt/gave skills as he possesses. undertaking
pillow), but Policy argument Minor
didnt call involved here, this case is Rest.3d. 43
hospital different than general case of
no host liability so give a new Rest. 7
rule. prevent help
Court decided not to create the
exceptionof peer-pressure or
offers of money or age or
amount of alcohol involved.
So the theory says no duty
owed as social host to social
guests.
Def uses 37no duty
No duty with respect to
providing alcohol for social
host.
Bystanders, but there was a
voluntary undertaking (42(b))
Active conduct = preventing
rescue
Rescue once undertaken, must
be performed reasonably.
Farwell v. Guys hit on Companions on social venture Duty p. 408
Keaton girls while implicit in social undertaking Special
drinking; get is understanding that one will Relationship
jumped; render aid to other when he is
friend finds in peril if he can do so w/o
him under car, endangering himself
drives for 2
hrs
 65
Podias v. 3 Drunk 18 yr A duty of care to rescue is Duty p. 410
Mairs olds drive; hit created when caused the Concert of
motorcyclist; to be in the peril in the first Action
Encouraged place Special
driving away; Even where the original danger Relationship
run into was created by innocent
woods conduct, no fault of , there Rest. 39
may be a duty to make a Rest. 41
reasonable effort to give
assistance and avoid further
harm where the prior innocent
conduct has created an
unreasonable risk of harm to
the .
The mere knowledge of
serious peril, threatening death
or great bodily harm to
another, which a might avoid
w/ little inconvenience creates
a sufficient relation to impose
a duty of action.

 66
Nonfeasance

Restatement 37, 38, 39potential liability of bystanders

When are they liable?
1) Created risk, then subject to liability for negligence and not a nonfeasance case
Restatement 7 p. 122
2) 37 comment d if acts own conduct creates the risks of its own and governed by the
ordinary duty of reasonable care contained in section 7
3) Old case with the minor and teacher having sexduties 40b5 (school to students) or 41b3
(employer to employees)

Organizing Nonfeasance Rules (slides)

Distinguish nonfeasance from conduct that creates the risk (Rest. 3rd 37 com d, 7, 19)
Basic no-duty rule for conduct that does not create the risk (Rest. 3rd 37)

7. Duty conduct that creates risk

A. An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of
physical harm.
B. In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting
liability in a particular class of cases, a court may decide that the defendant has no duty or that the
ordinary duty of reasonable care requires modification.

37. No Duty Of Care With Respect To Risks Not Created By Actor

An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of
care to the other unless a court determines that one of the affirmative duties provided in 3844 is
applicable.
37 Comment D:
Natural risks, third party risks and conduct that increases the magnitude of natural or 3rd party risks.
o If the actors own conduct creates risks of its own and therefore is governed by the ordinary duty
of reasonable care contained in 7.
o If not then no duty to care unless exceptions apply.
19 talks about duty of reasonable care when actors conduct increases the risk of 3rd
party conduct that causes harm
37 Comment E:
List of basis policy rationales for this rule.
o The distinction (btw limits on conduct and requiring affirmative conduct)) relies on liberal
tradition of individual freedom and autonomy.
If you do that you take away the individuals rights to make his or her decisions

19. Conduct That Is Negligent Because Of The Prospect Of Improper Conduct By The Plaintiff Or A
Third Party
The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits
the improper conduct of the plaintiff or a third party.
o Foreseeable ps negligence and ps contributory negligence will put their own safety at risk.
o Comparative responsibility is a partial defense here so it precludes but does not eliminate the ps
recovery.
o If 3rd partys misconduct is among the risks making the defendants conduct negligent then
ordinarily ps harm will be within the defendants scope of liability.
Look at foreseeability of improper conduct on the part of the p or 3rd party
 67
o Look at severity of the injury that can result if there a harmful episode occurs
o Then look at burden of precautions available to the def that would protect against the
prospect of improper conduct
If defendants conduct increase or creates the possibility of harm caused by 3rd party misconduct so
you can be liable.
Foreseeability: prior incidents matter.
Learned hand idea: if magnitude of foreseeable risk is high and the burden of precautions against
that risk is low then u should do the precautions!

38. Affirmative Duty Based On Statutory Provisions Imposing Obligations To Protect Another
When a statute requires an actor to act for the protection of another, the court may rely on the statute to
decide that an affirmative duty exists and to determine the scope of the duty.

Special duty rules (exceptions to no-duty) Prior conduct creating risk (Rest. 3rd 39)

39. Duty Based On Prior Conduct Creating A Risk Of Physical Harm

When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a
type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize
the harm.
Situations where innocently and non-tortuously there was some conduct that created the dangerous
situation.
o That person is involved not tortuously but because of something they were doing that created the
dangerous situation to begin with. They have duty of reasonable care to do something about it.
o Ex. Hitting an animal on the highway (no fault of the motorists) but danger on highway and duty
of reasonable care with respect to reducing the risks to prevent or minimize the harm from the
animal on the highway.
The conduct must create a characteristic risk of harm that the conduct might result in
o Ex driver is subject to care to passengers not a mugging of a passenger in an alley.
Helplessness not required---however if the actor is better situated to render aid than is the injured person
reasonable care may require the actor to do so, regardless of the injured individuals physical condition.
o Like victim doesnt have cell to call 911, actor does and doesnt give it! Liable.

Voluntary undertakings (Rest. 3rd 42-44) Special relationships (Rest. 3rd 40-41) with the victim
or with person posing risk

Special Relationships:
40. Duty Based On Special Relationship With Another
o (a) An actor in a special relationship with another owes the other a duty of reasonable care with
regard to risks that arise within the scope of the relationship.
o (b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) A common carrier with its passengers,
(2) An innkeeper with its guests,
(3) A business or other possessor of land that holds its premises open to the public with
those who are lawfully on the premises,
(4) An employer with its employees who, while at work, are:
(a) In imminent danger; or
 68
(b) Injured or ill and thereby rendered helpless,
(5) A school with its students,
(6) A landlord with its tenants, and
(7) A custodian with those in its custody, if:
(a) The custodian is required by law to take custody or voluntarily takes custody
of the other; and
(b) The custodian has a superior ability to protect the other.

Duty imposed in this section applies to dangers that arise within the confines of the relationship and
does not extend to other risks. Depends on geography and time
Duty described applies regardless if it was the individual at risk who did it, or if it was a 3rd party who
did it.
o If it was actors own conduct then 7 applies too.
Business and other possessors of land who hold their land open to the public
o Owe a duty of reasonable care to the persons lawfully on their land who become ill or
endangered by risks created by 3rd parties.
o Duty of possessors of land may also apply here.
This section is more for if they get injured and you have to call for help.
Schools
o They are custodian of students land possessors who opens the premises to public population
and act partially in the place of parents
o Only applicable to risks that happen while in school or engaged in school activities.
Landlords
o Common areas they have control over it so must give security
Custodians
o Duty btw a day-care center and the children for whom it cares about; hospitals with patients;
nursing homes with residents; camps with their campers; parents with their dependent minor
children and of course the classic jailer-inmate relationship
Not an exclusive list. Depends on courts to find additional relationships.

41. Duty To Third Parties Based On Special Relationship With Person Posing Risks
(A) An actor in a special relationship with another owes a duty of reasonable care to third parties with
regard to risks posed by the other that arise within the scope of the relationship.
(B) Special relationships giving rise to the duty provided in Subsection (a) include:
o (1) A parent with dependent children,
o (2) A custodian with those in its custody,
o (3) An employer with employees when the employment facilitates the employee's causing harm
to third parties, and
o (4) A mental-health professional with patients.
Duty of care that is triggered from def to p because the def has a special relationship with someone else
or called duty to control someone injures somebody else and you sue the other for failing to control
them or neutralize them.
If a risk exists here the actor must take reasonable steps in light of the foreseeability probability and
magnitude of any harm to prevent it from occurring.
o If actor doesnt know and shouldnt have known no action is required.
Parent to dependent child
o Parents are usually not vicarious liability. This section talks about the parents OWN
conduct/negligence in failing to control or supervise the child.
 69
The duty comes from this 41.
o Usually have no reasonable warning that child about to engage in conduct that causes harm.
Even if the child has done dangerous conducts before they have no reasonable or
practical method for ameliorating many of the dangers.
Custodians
o Prisons, Hospitals with mentally ill, and those with contagious diseases.
o Duty for protection of others from risks posed by the person in custody.
o A custodial relationship that exists solely for rehabilitative purpose is insufficient to create a duty
to protect others. So like an inpatient clinic no special relationship if compulsive gambler hurts a
3rd person.
Employer with employees
o Employment facilitates causing harm with other parties.
Mental-health professionals
o Trasoff case.
o Has a duty to use customary care in determining whether a patient poses a risk of harm
Reasonable care may require appropriate treatment, warning of others of risk imposed by
the patient, warning to parents, police or government officials.
WARNING must prevent the harm though
o Doctors may be liable to non-patients
Like family members for failing to provide patient with information about a
communicable disease. Affirmative duty on docs when the patient would have preferred a
warning or precautions to benefit a family member or other person.
List not exclusive.

Voluntary Undertakings:

42. Duty Based On Undertaking

An actor who undertakes to render services to another and who knows or should know that the services
will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting
the undertaking if:
o (a) The failure to exercise such care increases the risk of harm beyond that which existed without
the undertaking, or
o (b) The person to whom the services are rendered or another relies on the actor's exercising
reasonable care in the undertaking.
Not just a bystander because u stepped forward and have taken the undertaking. So triggers the duty.
If another person increases the risk of the original negligent actor-liable.
o The risk is increased beyond that which existed in the absence of the actors undertaking.
Risk that caused the harm or the actors negligence (omission) was within the scope of the undertaking
o For the jury to decide.

43. Duty To Third Parties Based On Undertaking To Another

An actor who undertakes to render services to another and who knows or should know that the services
will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to
the third person in conducting the undertaking if:
o (a) the failure to exercise reasonable care increases the risk of harm beyond that which existed
without the undertaking,
o (b) the actor has undertaken to perform a duty owed by the other to the third person, or
o (c) the person to whom the services are rendered, the third party, or another relies on the actor's
exercising reasonable care in the undertaking.
 70
rd
Relationships are that of 42, but extend the duty that is owed to 3 persons.

44. Duty To Another Based On Taking Charge Of The Other

(A) An actor who, despite no duty to do so, takes charge of another who reasonably appears to be:
o (1) Imperiled; and
o (2) Helpless or unable to protect himself or herself
Has a duty to exercise reasonable care while the other is within the actor's charge.
(B) An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from
putting the other in a worse position than existed before the actor took charge of the other and, if the
other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to
exercise reasonable care with regard to the peril before terminating the rescue.

Actor voluntarily chose to engage in a rescue.

By taking charge of the other, the rescuer may have prevent others from rescuing
7 still applicable here.
Rescuer must exercise reasonable care under the circumstances,
Dont cause the other to be in a worse position than existed before the rescue.

These trigger a duty of care for element 1 of negligence case.

Circumstances where a person who didnt cause the risk can still be liable:

a. Misfeasance in Rescue: when youve chosen to do something, the gov. can tell you to do it like a
reasonably prudent person
i. If you start to rescue and abandon, then you will have breached your duty
ii. Good Samaritan Law no liability for a rescuer who performs his rescue carelessly.
(Md. = police, firemen, hospital employees, EMTs, Ski Patrol)
b. Duty if takes charge
i. Once begins a rescue, he has a duty to perform it reasonably.
1. (Some states have passed Good Samaritan statutes eliminating liability for mere
negligence)
ii. only liable if he leaves in a worse position.
1. Compare initial position v. final position or
2. Compare position in rescuers hands (best point) w/ final point
c. Duty if caused s peril
i. caused in the sense of the proximate cause,
d. Ad-hoc cost-benefit analysis (the Hand formula) (Posner yes, Schechter no)
i. People would be deterred from being altruistic
ii. Undertaking a rescue creates threat of negligence liability for failed rescue & unable to
draw circle of tortfeasors
b. Common exceptions (a.k.a. a duty is created):
i. Rest. 2d. 322: If a person knows or has reason to know that his conduct, whether
tortious or innocent, has caused harm to another person, he then has a duty to render
assistance to prevent further harm.
ii. If a person has created an unreasonable risk of harm, even innocently duty of reasonable
care arises to employ reasonable care to prevent the harm from occurring. Rest. 321
iii. If a statute or ordinance requires a person to act affirmatively for the protection of
another. Rest. 39
 71

CONTRACT & DUTY

CASE NAME Brief Rule TOPIC PAGE # TAG WORDS

Facts
Affiliated FM Ins. p. 415
Co. v. LTK
Consulting
Services, Inc.
Spengler v. ADT p. 422
Security Services,
Inc.
Diaz v. Phoenix p. 424
Lubrication
Services, Inc.
Florence v. p. 430
Goldberg

Contract and duty

Contract law can impose a Tort duty
o Third party beneficiaries: tort duty may extend to a 3rd party of a contract like a contract btw the
security company and a school district to prevent violence or altercations among students. So the
student can sue them if he is assaulted. They owed a duty to minimize risks.
If A by contract shifts his duty to B
o B is entitled to give the same care to the plaintiff as she wouldve gotten from A
o B gets a new duty
o A may or may not be relieve of the duty A owed to the plaintiff before the contract.
Duty may be shift without a formal or express contract.
One who undertakes services that he should reasonably recognize as necessary for protection of others from
physical harms is subject to liability for failure to exercise reasonable care in performing that undertaking if
his failure increases the risk or if the undertaking is to preform a duty already owed by another or if the p
has relied on the undertaking.
o Rest. 43 a duty of care is owed on increase risk grounds if the failure to exercise reasonable care
increases the risk of harm beyond that which would have existed without the undertaking.
o Undertaking is creating a duty that did not otherwise exist
Shows defendant special relationship; affirmative action not mere nonfeasance; the
equivalent of a promise from which a tort duty might arise if there is consideration or
reliance
A City is not held liable for negligent exercise of government functions unless it is in a special relationship
with the claimant.
o However, if a municipality voluntarily undertakes to act on behalf of a particular citizen who
detrimentally relies on the illusory promise of protection offered by the municipality, there is
liability because by its conduct municipality has create a special relationship with the indiv seeking
protection.
o Municipality must in direct contact with the claimant and requires justifiable reliance by the
claimant upon the municipalities affirmative undertaking.
Scope of undertaking depends upon the nature of the undertaking
o Scope helps show its breech
 72

DUTY TO PROTECT FROM 3rd PERSONS

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Iseberg v. Business An affirmative duty to warn Duty p. 435 Attorney/clien
Gross partner or protect against the criminal Special t; ex; business
threatened to conduct of a third party may Relationship partner;
kill. Def knew be imposed on one for the Rest. 3d. 40
about it and benefit of another only if a
did nothing special relationship exists
between them.
Posecai v. Woman w/ The foreseeability of the harm Rest. 40 p. 439 Business
Wal-Mart $19,000 in and the gravity of harm must invitee;
Stores, Inc. jewels is be balanced against the Special
injured in commensurate burden Relationship
parking lot imposed on the business to
protect against the harm.
Ward v. p. 446
Inishmaan
Assocs. Ltd.
Partnership
Tarasoff v. Poddar kills The therapist need only Rest. 41 p. 453
Regents of Tarasoff. Had exercise that reasonable (b)(4)(a)
University of told school degree of skill, knowledge and
California psychologist care ordinarily possessed and
who warned exercised by members of that
campus professional specialty under
police. Briefly similar circumstances
detained, then No privilege for patient
killed confidentiality if
Tarasoff psychotherapist has reason to
believe that patient is in such
mental or emotional condition
as to be dangerous to himself
or to the person or property of
another and disclosure is
necessary to prevent the
threatened danger.
Brigance v. D sells One who sells intoxicating Negligent p. 459
Velvet Dove alcohol to a beverages on the premises for Entrustment
Restaurant, drunk who got consumption has a duty to
Inc. into accident exercise reasonable care not Rest. 7
with P to sell liquor to a noticeably
intoxicated person. It is not
unreasonable for tavern owner
to foresee the unreasonable
risk of harm to others who
may be injured by such
persons impairment ability to
 73
operate an automobile

Duty to Protect from 3rd Person

An affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for
the benefit of another only if a special relationship exists between them.

Private person has no duty to act affirmatively to protect another from criminal attack by a third person
absent a special relationshipex.
o common carrierpassenger (314)
o innkeeperguest
o business invitorinvitee
o voluntary custodianprotectee
Rest. 3d. 40 a duty btw def and victim because of a special relationship bet the def
and the victim. Restatement 41 is btw a special relationship and a 3rd person.
P wants principle agency relationship
Exception to no-affirmative duty rule:
o Principle agency relationship principal may have a duty to warn an agent if the principal
knows of an unreasonable risk involved in the employment, if the principle should realize that it
exists and that the agent is likely not to become aware of it, thereby suffering harm. Principal is
on whose behalf the agent if working.
Where one of these special relationships exists btw the parties and an unreasonable risk of physical harm
arises within the scope of that relationship, an obligation may be imposed on the one to exercise
reasonable care to protect the other from such risk, if the risk is reasonably foreseeable, or to render first
aid when it is known that such aid is needed.

Third Restatement 40 adds special relationships:

1) Employer-employee
2) School-student
3) Landlord-tenant
4) Business or other possessor of land that holds its premises open to the public w/ those
are lawfully on the premises (alteration)
5) Etc. etc.
Rest. 314B recognizes employer-employee duty, but only if the employee comes into a position of
imminent danger and the employer knows it
Risk must arise w/in the scope of the employment relationship

Court in deciding to impose a duty in a particular case looks at policy decisions

1. Court can consider unique facts and circumstances presented; various moral social and economic
factors including the fairness of imposing liability; the economic impact on the def and on similarly
situated parties; the need for an incentive to prevent future harm; the nature of defendants activity;
the potential for an unmanageable flow of litigation; the historical development of precedent and the
direction in which society and its institutions are developing
 74
Foreseeability issue:
1. Specific harm ruleLandowner does not owe a duty to protect patrons from
violent acts of 3rd parties unless he is aware of specific, imminent harm about to
befall them. Court says this is too restrictive in limiting the duty.
2. Prior similar incidents test: foreseeability is established by evidence of previous
crimes on or near the premises.
a. Past criminal conduct will put landowner on notice of future risk
b. Can lead to diff results since it is applied with different standards
regarding the number of previous crimes and the degree of similarity
required to give rise to a duty.
3. Totality of the circumstances test: jury takes into account the nature, condition,
location of the land and other factual circumstances bearing on foreseeability.
a. So uses number and nature and location of similar incidents but lack of
prior similar incidents will not preclude a claim where landowner knew or
should have known of the foreseeable criminal act.
b. Focuses on the level of crime in the surrounding area (property crimes or
minor offenses are precursors to more violent crimes).
c. Puts a greater responsibility on business owners to foresee the risk of
criminal attacks on their property but criticized as too broad a standard,
effectively imposing an unqualified duty to protect customers in areas
experiencing any significant level of criminal activity.
4. Court Accepts Balancing Test: address the interests of both business proprietors
and their customers by balancing the foreseeability of harm against the burden of
imposing a duty to protect against the criminal acts of third persons. (B < PL)
a. Can lead to the def not having a duty to deal with even foreseeable harms
b. Notes material: foreseeability when analyzed to determine the existence or
scope of duty is a Q of law to be decided by the court.
c. Rest. 19---comment F and G
i. In running business actually create a situation that will lead to
injury. Not a bystander at all.
d. Rest. 40 special relationship to protect customers from robbers even if
u didnt create the situation that led to the robbery
e. Court is somewhere btw the restatement points.
5. The foreseeability of the harm and the gravity of harm must be balanced against
the commensurate burden imposed on the business to protect against the harm.
Rarely applied w/o prior incidents.
6. Schechter sees this as merging duty and breach and as a policy decision to protect
businesses from liability. Dont want to force business to have security guards
(dont want businesses to move from the bad areas of town).
 75

Negligent Entrustment:
It is negligence to permit a 3rd person to use a thing or to engage in an activity which is under the control of
actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct
himself in the activity in such a manner as to create an unreasonable risk of harm to others. Foreseeable risk
created by the giving
o Rest. 2d. 308
o Allowing kids to have loaded guns. Letting them drive ur car.
o Rest. 2d. 390
One who supplies a chattel for the use of another whom the supplies knows or has reason to
know to be likely because of his youth, inexperience or otherwise to use it in a manner
involving unreasonable risk of physical harm to himself and others is subject to liability for
physical harm resulting to them
o Rest. 3d. 19
Conduct that is negligent because of the prospect of improper conduct.
Comment E. negligent conduct because you create the risk
 76

EMOTIONAL HARM

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Homer v. Long Dr. uses Rest. 46 p. 472
confidential
trust to
seduce Ps
wife
(patient)
Catron v. Lewis p. 477
Dillon v. Legg Parent sees Def might owe duty to protect Rest. 48 p. 480 Zone of
kid get hit not only the injured person but sudden danger; parent;
those who might foreseeably serious child
suffer emotional harm because bodily
of the injury. Its reasonably injury
foreseeable that for a child a
parent or family close enough to
see what happens will be
traumatized about it.
Zone of Danger/Foreseeability
Test
o P was near scene
o Shock resulted from
contemporaneous
observance
o P and victim were
closely related
Thing v. La Woman may recover damages for Rest. 48 p. 481
Chusa heard son emotional distress caused by
was hit by observing the negligently
car. Rushes inflicted injury if and only if,
to scene to the :
find him Near in Family: Is closely
dead. No related to the injury victim: by
recovery blood or marriage, relatives
residing in the same household,
or parents, siblings, children
and grandchildren of the victim
Near in Time/Space: Is present
at the scene of the injury
producing event at the time it
occurs and is then aware that it
is causing the injury to the
victim
Serious Emotional Distress: As
a result suffers serious
emotional distressa reaction
beyond that which would be
 77
anticipated in a disinterested
witness and which is not an
abnormal response to the
circumstances.
Potter v. P lived near The exposure put u in the NIED p. 491 Toxic
Firestone Tire & landfill. D higher risk categories u can sue exposure;
Rubber Co. threw now and get the cost of Fear of
industrial monitoring yourself to see if the Future
wastes in. cancer develops. Then you can Harm
Toxic sue when u have cancer for
chemicals sure. So they allow splitting
contaminate your case between medical
domestic monitoring and actual physical
water wells injury.

 78

Emotional Harm

Intentional Infliction of Emotional Distress

Negligent Infliction of Emotional Distress
Loss of Consortium--- one spouse suffers bodily harm and the other spouse is a Plaintiff.
o The other spouse didnt get injured but wants $$ for injury to the relationship due to negligence
of a 3rd party.
Look at policies: any new policies for new situations? Or what about borderline cases?

4. Physical Harm
Physical harm means the physical impairment of the human body (bodily harm) or of real property or
tangible personal property (property damage). Bodily harm includes physical injury, illness, disease,
impairment of bodily function, and death.
If someone frightens u and your nerve endings are harmed. Not a bodily harm.
If actors tortious conduct causes emotional harm to another and that emotional harm causes bodily harm
to the other recovery or both is governed under restatement 5,6, 20-23

45. Emotional Harm

Emotional harm means impairment or injury to a person's emotional tranquility.
Emotional is mental states--fright, fear, sadness, sorrow, despondency, anxiety, humiliation, depression
(and other mental illnesses), and a host of other detrimentalfrom mildly unpleasant to disabling
mental conditions.
Physical harm, with the exception of disease, results from traumatic impact with the human body, while
emotional harm can occur without such trauma,
When emotional harm is consequential to bodily harm, it is recoverable under the rules provided in 5,
6, and 2023 of this Restatement for bodily harm

46. Intentional (Or Reckless) Infliction Of Emotional Harm

An actor who by extreme & outrageous conduct intentionally or recklessly causes severe emotional harm to
another is subject to liability for that emotional harm & if that emotional harm causes bodily harm, also for the
bodily harm.

Direct Victim of Emotional Distress:

acted intentionally/reckless
Intentionally: acts w/ the purpose of causing severe emotional distress or acts knowing
that severe emotional distress is substantially certain to result
Reckless: ((Restatement 2defines Recklessness)) actor knows of the risk of severe
emotional distress (or knows facts that make risk obvious) and fails to take precaution
that would eliminate or reduce the risk
1. Burden is slight relative to the magnitude of risk, thereby demonstrating actors
indifference
Act is extreme and outrageous.
Factors to consider:
1. Exceeds all bounds of decency accepted in a civilized societyoutrageous.
a. Extreme is NOT normal/unusual.
2. Regular, repeated, or continued after protest
3. Abuse of Power
4. Against a vulnerable or sensitive (known to )
 79
Determining act is extreme and outrageous is fact sensitive and case-by-case.
A person cannot be held liable for exercising a legal right even when they know it will cause emotional
distress
o Like divorce or firing an employee, but cant go beyond what is necessary or it becomes extreme
and outrageous.
The Resulting Emotional Distress was Severe
o Severe = so bad that no reasonable person should be expected to endure it
High Standard of Proof (e.g. more than s claim that she is distressed is neededa
palatable effect is require) To weed out fakers courts look for to show:
1. Loss of work
2. Medical attention/medicine
3. Psychological treatment
4. Physical, bodily harm
5. Expert testimony

Third-Party Victim of Emotional Distress:

acted intentionally/recklessly towards X3
is Present
Contemptuously received
o is aware that is present or is reckless about s presence
o Act is extreme and outrageous
o must either:
Be a bystander who is a family member of X3 or
If not a family member, experience distress that results in bodily harm
If an actor harms someone else for the purposes of inflicting mental distress on
another person then this section doesnt apply.

Elements of Rest. 46:

There is a presence requirement for a 3rd party to claim intentional infliction of emotional distress aimed
at another.
o This is so the def know they are there and the mental effect on them can be reasonably
anticipated by the defendant
Third Party Rule: Restatement 46--When A acts on B. C must be present & needs a
plus factor: (1) family member or (2) bodily harm, to sue for intentional infliction of
emotional distress.
1. Rare exceptions:
a. Relationship of target to
b. Relationship between person committing action and the
c. The egregiousness of the conduct

Frights or shock from risks of physical harm:

Traditionally: Impact Rule court didnt believe in just an emotional distress caused negligently. There
mustve been a physical injury or proximate cause wont be satisfied.
o Courts have dropped this now.
The Fright Claim (for a near miss)
o is negligent
o is not physically hurt by that negligence
o but, is (really) scared for his safety (Grube)
Tests:
 80
An impact test: if there was any contact, then there would be a filter for the
court (primitive, but some states retain it)
A Zone of Danger Test: the s negligence placed the in danger of physical
injury, and b/c of that danger the suffered emotional harm.
o RS Third 47 (a)
Subsequent observable physical manifestation is demanded by many courts
and some require strict symptomality (no self-reported symptoms)
o Some states have asked for a physical manifestation of the shock or
fright occurring after the events in questions.
o Some have said it has to be an emotional disorder not really a physical
manifestation.
Or restatement approach restatement 48

48. Negligent Infliction Of Emotional Harm Resulting From Bodily Harm To A Third Person
An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for
serious emotional harm caused thereby to a person who:
o (a) Perceives the event contemporaneously, and
o (b) Is a close family member of the person suffering the bodily injury.

47. Negligent Conduct Directly Inflicting Emotional Harm On Another

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the
other if the conduct:
o (a) Places the other in danger of immediate bodily harm and the emotional harm results from the
danger
o (b) Occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional harm.

Rest. 46(b): Bystander/Grief Claims

Emotional distress witnessing members of immediate family
o Who is present
o have a close relationship with the person witnessing it
part of the fear is for their own safety and the family member.
o Whether or not the distress results in bodily harm

The Grief Claim (Bystander)

is negligent
X is badly physically hurt, or killed, by that negligence
But, is (really) bummed or sad b/c of this
o Three Dillon-Thing restraints: --Rest. 48
Near in space (have to perceive)
Near in time
In Cal. have to see it in real time
but in Mich., before the body has been removed
Near in family relationship
+ Serious Emotional Distress
Many courts demand a subsequent observable physical manifestation, and some require
strict symptomality (no self-reported symptoms)
Example u get ulcers.
 81
Parent sees child get hit and thats enough for zone of danger test.
Foreseeability test:
P was located near the scene of the accident
Shock resulted from a direct emotional impact upon the p from the sensory and
contemporaneous observance of the accident as contrast with learning of the accident
from others after it happened
Whether p and the victim were closely related.
Thing v. La Chusa (p. 481)
may recover damages for emotional distress caused by observing the negligently
inflicted injury if and only if, the :
1. Near in Family: Is closely related to the injury victim: by blood or marriage,
relatives residing in the same household, or parents, siblings, children and
grandchildren of the victim
2. Near in Time/Space: Is present at the scene of the injury producing event at the
time it occurs and is then aware that it is causing the injury to the victim
3. Serious Emotional Distress: As a result suffers serious emotional distressa
reaction beyond that which would be anticipated in a disinterested witness and
which is not an abnormal response to the circumstances.

47. Negligent Conduct Directly Inflicting Emotional Harm On Another

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the
other if the conduct:
o (a) Places the other in danger of immediate bodily harm and the emotional harm results from the
danger; or
o (b) Occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional harm.

Zone of dangerif the negligent conduct of one places another in danger of immediate bodily harm then
the negligent person is liable to the other for serious emotional harm caused by the reaction to the danger
even if the conduct did not cause any impact or bodily harm to the other.
Rest. 47 (B) If an undertaking or activity is done negligently and another suffers a emotional harm
liable
1. Like telling someone the false news of death or illness
2. Or mishandling a corpse or body remains.
3. Or a doctor negligently diagnoses a patient with a dreaded or serious disease.
a. Causes the loss of a fetus
b. Hospital looses a newborn
c. Hospital exposes a person to HIV
d. Employer mistreats an employee
 82
General rule of toxic exposure/emotional distress:
In the absence of physical injury or illness, damages in fear of cancer may be recovered if the p pleases
and proves: 2 things:
o (1) Defendants negligent breech of duty owed to the p the p is exposed to toxic substance which
threatens cancer
o (2) The ps fear stems from a knowledge corroborated by relatable medical or scientific opinion
that is more likely than not that the p will develop the cancer in the future due to the toxic
exposure.
Emotional distress caused by the fear of cancer that is not probable should generally not be compensable
in negligence action. Prove more likely than not that you will develop cancer.

Toxic Exposure: Public Policy Reasons: the emotional distress caused by fear of cancer is not generally
compensable in negligence action:
1. Overwhelm the courts w/ tons of s and compromise the availability of insurance for toxic liability
risks (judicial administrability)
2. Threatens medical field and future risks of drugs (deterrence)
3. Limit ability and availability of funds for actual cancer sufferers (economics and moral)
4. A definite and predictable threshold will maintain consistency from case to case (firm rule)
5. Limit the class of s for emotional fear (judicial administrability)
The policy concerns lead to a high threshold for suing when you dont have the cancer.
Rule 2: To recover for toxic exposure, a must show, in absence of physical
injury,
1. Show that the was particularly despicable and culpableoppression, fraud or
malice of the def is shown.

Future NIED - toxic torts - (possible test question)

1. Recovery for fear of future physical harm
a. More Likely Than Not Test (CA)
(i) Recovery allowed only when it is probable (i.e. >50%) that future harm will result
1. Potter v. Firestone (Class Example): fear of cancer resulting from pollution
b. Reasonable Person Test (Other Jdxs)
(i) Recovery if RP would have emotional distress
(ii) allowed when fear is reasonable and causally related to Ds actions
c. Physical manifestations
(i) majority requires
(ii) minority (CA) doesnt
 83
PRENATAL HARMS

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Remy v. Born alive Due to a unique symbiotic Rest. 869 p. 495 Unborn child
MacDonald case relationship between a mother
before birth and her unborn child, a
injuries; pregnant woman does not owe
Child sues a duty of care to her unborn
mom for child to refrain from negligent
neg. in conduct that may result in
driving and physical harm
causing
accident
when
pregnant.
Mom given
c-section
after
accident.
Premature
birth
Shull v. Reid p. 501
 84
Prenatal Harms

Prenatal Harms
Timeline of when the injury happened:
o 3 main parts
Conception
Viability in the womb baby needs mom to sustain life.
Birth
o 3 scenarios
Ainjury to mom happens prior to conceptionschild is born
albala and renslow case. injury to moms body which then caused injury to the
fetus the baby born with the injury.
Bthe injury happens btw viability (in the womb) and conceptionchild is born
B1) injury happens and the death of fetus happens before viability
B2) injury happens and the death of fetus happens btw viability and birth
Cwhen the injury happens btw viability and birth---child is born
C1injury happens before birth and baby dies.
Who is the p?
Fetus/child, mother and father
Who is def?
Stranger, doctor, mother, father
What is the COA?
Negligence (Physical injury)
NIED [his slide]
Loss of consortium
Wrongful deathparents sue for wrongful death; what is a person

Rest. 869allows a mother to sue a 3rd party for the harm of the child if the child is born alive. If the
tortious conduct and the legal causation of the harm can be satisfactorily established, there may be recovery for
any injury occurring at any time after conception. (P. 468 of casebook)

Contemporary rules: child born alive-- allow a tort claim if child born alive and the child must be
viablecapable of living independent of the motherat the time of the injury. So probably not related to
the after birth events.????
Child NOT born alive but viable for injury wrongful death action allowed if a fetus is stillborn at least
when the fetus was viable at the time of injury
Child not born alive and not viable at injury or thereafterif born dead then not viable at any time.
Emotional distress damages for the mother if a negligent act caused death of a fetus when she herself has
no injury? Some have allowed it.
o If child was born alive though then the child can just bring a medical malpractice action for physical
injuries.
Foreseeability issue of a future birth of a child.
 85
Wrongful conception cases chaffe case basically.
o The parents are the plaintiffs trying to recover damages for the cost of raising the child. The p
wanted to prevent conception but the sterilization is negligently performed and the child is born
healthy but the parents have financial costs and emotional difficulties
Wrongful birth cases doc has negligently failed to diagnose a genetic difficulty with resulting
physical harm to the fetus and economic and emotional harm to the parents. But for the docs negligence
they would have chosen to abort the fetuses.
o Damagesexpenses for child is over and above normal child rearing costs
o 2nd kind Conception happens and they go to doc and doc fails to see a genetic difficulty and
results in harm to fetus and economical harm to parents
Argue But for the docs negligence they wouldve aborted the child
A doc who learns of genetic screening that there is a risk child can be conceived with has
duty to inform the parents.
Wrongful life caseschild is plaintiff but for the diagnosis u wont be alive so what do u do with these
cases.
o There is no wrongful life claim aka kid cant recover for being born.
o Several courts have allowed the child to get the damages in his own claim.
If the nature of the disorder is such that they reach adulthood associated with their
conditions.
 86
WRONGFUL DEATH & SURVIVAL ACTIONS
(Loss of Consortium; Survival Actions/Statutes)

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Weigel v. Lee Mom dies in Survivors sue for loss of Wrongful p. 508 Statute;
hospital; consortium damages (mental Death wrongful
kids sue for anguish and grief for the loss death; loss of
wrongful of the relationship + consortium;
death statute Economic/noneconomic children/parent
damages).
A descendants children may
recover for damages
pursuant to a jurisdictions
wrongful death statute
 87

Wrongful Death

Consortium (p. 422)

Loss of spouses (or very limited certain other family members):
Services done at home
Loss of society (means you must show the meaningfulness of your relationship)
Loss of sex (must show physical relationship)
When one spouse is injured in a way that tends to diminish the ability of the partners to take pleasure in
each others companyin conversation, sports, travel, sexual relations, or any other pleasure of lifethe
other spouse has a loss-of-consortium claim.
Different than emotional distress claims because emotional distress is a moment of
shock or fright. Consortium is a legal harm in a chronic ongoing sense of loss.
Consortium claiminjury for physically injures spouse, other spouse sues the negligent person for
emotional damages.
Consortium claims are traditionally said to derive from the claim of the physically injured spouse. Cant
recover more than claim from which it is derived.
The contributory negligence of the injured spouse will bar or reduce the Consortium
claim just as it will bar or reduce the injured spouses claim.
Parents of an injured child have not generally been allowed to recover for intangible harm such as loss of
society or companionship.
Until 94, courts pretty consistently rejected consortium claims by unmarried consorts, some courts now
allow such claims

Death
Cases died with the parties:
o Now we have wrongful death statutes and survival statues
Victim sues: injured but gets worst and dies
o They are the plaintiffs. Entitled to damages if they prove liability.
o The suit survives after their death. Its the same case they are just not there to finish it. Goes to
their state
o Loss of consortium cases:

1. If an injured person died from getting judgment against the def his COA died with him. So if p dies so
does the case.
2. If def dies before a judgment then the ps cause of action died as well
3. There is no separate COA on behalf of those who were dep upon the deceased person.
These rules have all changed now.
o 1 + 2 changed to survival statutes COA survives if one party dies.
o 3rd one is changed to wrongful death statute

Wrongful death measure:

o Pecuniary losseschildren of dead might recover for loss of support they received in form of
housing, food or clothing
o Economic loss is measured by the loss of support to dependents.
o Measure loss-to-survivors or loss-to-dependents measure 2nd measure is called loss-to-estate
measure calculated by determining the deceased probably lifetime earnings and then deducting
the expenses the descendent would have had in maintaining himself.
 88
Loss to survivorsonly if the deceased would have contributed to any beneficiary during his
lifetime
Loss to estatesthese might allow damages even if the descendent was not contributing to the support
of others.
o Recovery for descendants savings and earnings
o Similar thing is Loss-of inheritance claimant must prove the death would have accumulated
an estate or increase in his estate that the claimant would have inherited a share.
Non-pecuniary losses 1) punitive damages 2) damages for the mental anguish or grief of the
survivors 3) loss of consortium
o A) loss of society or companionship b) loss of services c) loss of guidance and care
o Loss of consortium is NOT emotional distress damages.
Survival statutes these are for the dead persons injuries/damages NOT the family injuries. survival damages
include medical expenses, wages lost before death and pain and suffering resulting from the injury.
Some states have loss of life damages for survival statues compensates a dead person for
the loss of the value that the descendent would have place on his or her life.
 89
PRODUCTS LIABILITY

CASE NAME Brief Facts Rule TOPIC PAGE # TAG WORDS

Lee v. Glass bottle Presumption is that if you p. 570
Crookston of soda show the product traveled in
Coca-Cola shatters the ordinary channels of
Bottling Co. when D distribution, it is presumed the
reaches for defect occurred on the Ds
it end
B/c the product was
defectively dangerous and
unreasonably dangerous for
its intended sue, there was no
evidence it wasn't defective
when it left D's control, and P
did not use the bottle in an
unforeseeable manner (D is
proximate cause), D is strictly
liable. Court rationalizes this
by saying D is in a better
position to pay (i.e. raise price
of Coke by 10 cents)

Knitz v. Minster P was D is liable b/c: (1) it is more p. 577

Machine Co. operating dangerous than an ordinary
big press consumer would expect when
and it cut used in an intended or
off her reasonably foreseeable
fingers manner; AND (2) the benefits
of the challenged design do
not outweigh th

e risk inherent in such design.
In doing this they should
consider the likelihood the
product will cause injury (P),
gravity of danger posed (L)
and mechanical and economic
feasibility of an improved
design (B)
Barker v. Lull p. 581
Engineering Co.
Honda of p. 582
America MFG.,
Inc. v. Norman
Liriano v. p. 589
Hobart Corp.
Hymowitz v. Eli DES Court uses market share Market p. 632
Lilly & Co. marketed to theory and said that all the Share
 90
pregnant manufacturers will be Theory
women. 300 severally (can only ask the
companies party for their % of damages)
sold it. liable: there is no exculpation,
Consequenc even if a company can prove
es in adult it did not sell the drug to this
years for particular P
daughters Solution: Name all of the
DES manufacturers that are
still in existence. If company
1 sold 2% of DES drugs then
they are liable for 2% of
damages. They are only
SEVERALLY liable so u cant
go to a big company and get
the whole award.
 91
Products Liability

STRICT PRODUCTS LIABILITY (SPL)

Someone interacts w/ a product gets hurt
Includes food, consumer goods, industrial equipment, drugs, medical devices, etc;
Many product liability cases are cases of Negligence (product was made negligently)
Strict liability for products is recent, starting in the 1960s
Rest. 402A (p.81)One of the famous sections, catalyst for products liability
Much of strict product liability is just Negligence in sheeps clothing
Only a merchant can be a D in SPL
o So a guy on E-Bay or guy having a garage sale is not subject to SPL claim
Any merchant in the chain of distribution is liable under a SPL claim
Macys (for selling)------Cuisinart (for producing it)
No privity, freed up SPL litigation
Strict Liability doesnt apply to services/ service providers only products
Have to show that the product that hurt you suffers from a defect

Manufacturing (Product) Defects

i. Definition: We are accusing the product of being defective as made - it is generally a good product but
something in this particular one went wrong during manufacturing
ii. P's Burden: It is the P's burden to eliminate all the other causes of defect, and show defect existed
when it left D's control
iii. No Negligence Required, Just Care if Bottle Defective when it Left Manufacturer: Even if the
manufacturer went above and beyond that which a reasonable person would do in making sure the
bottles were safe, it product is defective they are still S/L
1. Test: The 3 questions we ask are: (1) Is the product defective or is it not defective and
unreasonably dangerous for its intended use? (2) Was the product defective when it left D's
control? AND (3) Did P use the product in a foreseeable way when the injury occurred (if so,
D is the proximate cause of P's injuries)
a. D not an insurer: mere cause-in-fact not enough; D must be the proximate cause of P's
injuries
iv. How is S/L Different from Res Ipsa?: In res ipsa cases, you are still proving D was negligent, but
unlike S/L, in res ipsa cases the D can rebut by showing he was not negligent and did everything to the
standard that would be expected of him

Manufacturing Defect Production flaw; departs from intended design (the 1 bad one coming off the assembly
line).
Must not just be different, but also more dangerous than consumers expect consumer expectation test.
Must also show that the defect existed when it left the Ds hands.

Design Defect Product is built wrong.

Not just one out of a million, every product on the market potential for tort liability.
Is the design more dangerous than consumers would expect, does the consumer even have an expectation?
If you put dangerous product on market and make its danger well known, then is consumer expectation
supportive of dangerous product.
End up with Risk / Utility test.
 92
o P must show design of product has risks that outweigh its utility. This is the heart of negligence,
B<PL.
Must also show reasonable alternative design:
o 1) Design would be safer than version used (has to be net safer, not just safer in this accident, safer
as always);
o 2) Cost effective (not grossly more expensive);
o 3) Must also be practical

Information Defect Fail to put warning on product.

Generally dont have to rule about obvious dangers.
Heeding Presumption
o If warning is given, must believe P would have heeded it. Give the warning to the learned
intermediary (tell the doctor about the warnings of medication and doctor, not you, must tell end
user).

-Affirmative Defenses: Misuse. May or may not be a defense. If misuse is unforeseeable then the product is
arguably not defective (lawnmower for haircut). If misuse is foreseeable, may not defeat claim but reduce
recovery because of comparative fault (drive a car over the speed limit).

Market Share
Contribution: A pays more for fair share of damages he can recover contribution from the other
tortfeaser
Common liability ruleperson claiming contribution show that both tortfeasers were liable to
the p
Payment in settlementbefore it wasnt allowed now u can get contribution if u settle with the
plaintiff for full compensation
Amount of contribution: Pro rata share rule==if single indivisible injury caused by two
tortfeasers each should pay half
IndemnityA may technically be liable by B is the only person really at fault. If A pays the
entire amount then B should give A the entire amount.
o So shifts liability completely.
o Ex: vicariously liability of employer for employee
o Products cases where product is defective and the retailed is held strictly liable for a
defective product they got from manufacturer then the retailer can get indemnity from
manufacturer.
Adoption of comparative negligence does not abolish joint and several liability
o Indemnity is adapted to permit tortfeasers to share liability in proportion to fault. Thus if
a tortfeaser guilty of 10% the fault is made to pay all of the ps damages that tortfeaser
will be entitled to equitable indemnity for the 90%.
o Rule of American Motorcycle case: each party is ultimately responsible for a share of the
losses proportioned to his fault.
 93
Products Liability
a) Types
i) Negligence
ii) Breach of Warranty
iii) Misrepresentation
iv) Strict Liability
b) Negligence
i) Types
(1) Negligent design
(2) Negligent manufacture
(a) Manufacturer not negligent for following specifications of 3rd party unless specs are so
obviously dangerous no reasonable person would follow them
ii) Distributors/Retailers
(1) can sue distributor only if negligent in distribution
(2) can sue retailer only if retailer knew of defect
iii) Superseding forces can end manufacturers liability
iv) Strategic purpose where strict liability also exists - Allows P to introduce negative evidence about
Ds breach of the standard of care that wouldnt be allowed just under strict liability
c) Breach of Warranty (Contract Law)
i) Types
(1) Express
(a) Direct promise (advertising, face-to-face, contract)
(b) Liability w/out negligence if product fails to live up to promise
(2) Implied
(a) Not stated (i.e. chair has implied warranty to work as a chair should)
(b) Can be disclaimed
ii) Requirement of Privity
(1) can only sue D who sold item (i.e. retailer, not manufacturer)
(2) Later holdings found Manufacturer owes a duty to public for whom the product is intended, as
well as distributor/retailer
(a) Overcomes requirement of privity of contract
iii) Requirement of Timely Notice
iv) Benefits can recover pure economic losses in some circumstances
d) Misrepresentation
e) Strict Products Liability
i) Elements
(1) Product is defective
(2) for a foreseeable purpose and is
(3) proximate cause of injury
(a) type of harm suffered must be that which makes the product dangerous
ii) What is Defective?
(1) Majority / Restatement (402a)
(a) Defective condition unreasonably dangerous to the user
(i) Consumer expectations test - Product is more dangerous than an ordinary consumer
would expect
1. Weakness: diminished expectations could relieve manufacturer of liability
2. Unclear and circular reasoning
(2) Risk /Utility test
(a) Test: product is reasonably safe if
(i) its utility outweighs its risk, and
 94
(ii) the risk has been reduced to the greatest extant possible consistent with its utility
1. Beshada v. Johns Manville
(b) Similar to negligence asks if the product was reasonably safe for its foreseeable purposes
(3) Hybrid Barker v. Lull Engineering test (CA)
(a) Manufacturing Defect
(i) Definition product differs from a ostensibly similar unit (i.e. broken)
(b) Design Defect, use either
(i) Consumer Expectations (modified):
1. Test
a. Product fails to perform
b. as safely as an ordinary consumer would expect
c. when used in an intended or reasonably foreseeable manner
i. Drops unreasonably dangerous requirement
2. Advantage: P does not have to allege exact defect, only failure of the product to
perform
3. Limited now by overly high expectations people have for products, especially high
tech
(ii) Risk v. Benefits (Risk/Utility)
1. Test
a. P proves product is a proximate cause and
b. D fails to prove that benefits of Ds design outweigh the risk of danger
i. In CA, burden is on D to prove risk v. benefit
2. Product performs as expected but still exposes P to excessive preventable danger
3. Risk v. benefit factors
a. Gravity of danger
b. Likelihood of danger
c. Feasibility of safer alternative
d. Increased costs of safer design
e. Decreased utility of safer designs
(4) Evaluation of Risk v. Benefits
(a) At time of manufacture, or
(i) Without hindsight, then standard is very similar to negligence
(b) Hindsight use technology/knowledge at time of trial
(i) Defendants knowledge is irrelevant
(ii) Benefits P because if advances in technology, it can be clear that risks outweigh the
benefits or are unreasonably dangerous
iii) Warning Defect (Subset of Design Defects)
(1) Duty to Warn when manufacturer knew or should of known of danger
(a) Making a warning is usually always possible w/out diminishing utility or increasing cost
(2) Adequate warnings generally insulate from liability
(3) Warning does not shield D from liability if D could have cured defect for minor amount of $
relative to the risk involved D should have cured it, not warned about it
iv) Defenses to Strict Product Liabilities
(1) State of the Art Defense (design/warning cases, possibly extensible to all cases)
(a) Subtract any later knowledge that was not discoverable at time of manufacture
(i) Defect was not scientifically knowable at time of manufacture
(ii) Overrides hindsight argument
(b) Majority has adopted
(i) Minority (NJ) does not accept as defense in duty to warn
(c) Makes strict liability similar to negligence, but allows
 95
1. Everyone in chain of distribution to be sued (retailers + manufacturers)
2. Manufacturing defects
(d) Rationale not to allow state of the art defense
(i) Risk spreading
(ii) Encourage R+D
(2) Traditional
(a) Contributory Negligence = no
(b) Assumption of Risk = yes (complete defense)
(3) Modern Majority Trend
(a) Comparative Negligence (Fault) = partial bar
(b) Implied Assumption of Risk = partial bar
v) Restatement 3
(1) Defective = Risk v. Benefit test + state of the art defense
(a) No product shall be defective unless there is a safe alternative