Torts Outline

Eaton
Fall 2004

-tort- a civil wrong, victim makes all decisions, duties imposed on people by legal
system, use coercive force of gov. to transfer wealth from one private citizen to
another, keeps people from taking matters into their own hands, provides
incentive for people to act right, so taxpayers don’t pay but instead person
responsible pays
-tortfeasor=wrongdoer- goal of compensation is to return victim to original state

II. Intentional Interference With Person or Property

Intent

I. purpose or knowledge to substantial certainty that act will result in harm

-time sequence is important-did he know when he moved chair that she
would sit?
-not all intentional torts are malicious
II. -generally, parents aren’t responsible for the intentional torts of their
children, sometimes statutes make parents responsible

III. Insurance for intentional torts- would take deterrent effect away (I’m older
and have more insurance) less inhibited in behavior, creates moral hazard; the
good in insurance is that injured will get paid

-Restatement: person acts w/ intent to produce a consequence if: (a)

they have the purpose of producing that consequence, or (b) they
know to a substantial certainty that the consequence will ensue from
their conduct

-Spivey v. Battaglia-defendant didn’t have intent b/c he could not have expected
Spivey to get paralyzed from a hug- he didn’t have purpose to harm and he
couldn’t have known to a substantial certainly that this harm would follow
-substantial certainty is a place on a continuum, but requires high level of
awareness
-anything less than substantial certainty is negligence

-McDonald- there was a struggle for hug, so could have known to a substantial
certainty harm was likely to result

IV. worker’s compensation- can’t sue employer for negligence, but can sue for
intentional tort, most only use purpose prong though

V. mistake doesn’t relieve you from intent

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VI. insane people can form intent, not always, but here def told victim if she
came into room she’d strike, so intent b/c her purpose was to inflict harmful
touch- -couldn’t be liable in criminal law, different b/c in crim only want to
punish those who are morally culpable, in tort just want wrongdoer to restore
victim
-policy: 1) encourage caretakers to be more careful-utilitarian, 2)
corrective justice-caused harm you should pay, 3) process values- don-t want to
inject complex aspects of insanity into civil cases

VII. can transfer intent, threw stick meaning to hit A but hit B- want to deter the
wrongful act, corrective justice

Battery

I. - Elements: 1)need act, 2) with intent, purpose or knowledge to substantial

certainty to harmful touch will occur, (can be just intent to bring about
unconsented touch) 3) must result in harmful or offensive touch, must be no
consent or privilege
II. can exist if bring about harmful contact w/ something else, the ground
III. don’t have to be aware of touch for there to be a battery, it just has to be
unconsented Sleeping Beauty

IV. Fisher v. Carrousel- snatch plate, -battery b/c plate intimately connected, an
offensive touch- must offend a reasonable person- offensive must be affront to
one’s dignity

Assault

I. protects facet of mental tranquility- fear of imminent harmful or offensive

touch- societal interest in protecting mental invasions

II. Elements of assault: 1) an act, reached for her, 2) an intent, purpose or

knowledge to substantial certainty that act will put other in apprehension of
harmful or offensive touch (def’s state of mind) 3) apprehension of imminent
harmful or offensive touch (plaintiff’s state of mind) 4) apparent present ability
to inflict harmful or offensive touch
-must be able to reach victim, or no apparent present ability
-must have overt act to avoid frivolous claims
-apprehension means awareness, not necessarily fear-I could
assault a football player-Sleeping Beauty was battered but not assaulted b/c she
wasn’t aware
-must make a reasonable person apprehensive
-continuum- the more threatening the words the less of an overt act is
required and vice versa

False Imprisonment

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-Big Town- 1) act, sometimes an omission 2) intent (purpose or knowledge to a
substantial certainty) to restrain another’s liberty of movement, 3) awareness of
confinement, unless there is physical injury during confinement 4) must be some
actual physical restraint
-like assault a dignitary tort-dignity isn’t harmed unless you’re aware
I. purpose or knowledge to substantial certainty that they were confining
someone- awareness is an essential element of false imprisonment, must be
awareness at time of confinement

II. if confinement was voluntary it isn’t false imprisonment- a reasonable person

must be able to conclude that one’s presence was involuntary
-if only way to leave is to give up your property then it’s involuntary--purse

III. can sue police for false imprisonment if they arrest you for crime other than
for which you are convicted- protects populace from overreaching police; could
lead to convicts bringing frivolous suits against their arresting officers

IV. failing to provide means of escape, defendant had duty to provide

means of escape b/c he promised, need a reasonable means of escape (not
reasonable if it puts them in physical danger/ desert/ swimming across bay)
-have legal obligation to help if person is trapped on your property
-promise must induce reliance

Intentional Infliction of Emotional Distress

-pre-existing torts don’t apply, but seems that justice requires a remedy-garbage
can of torts

I. Elements: 1) act is outrageous, 2) intent, purpose, knowledge to substantial

certainty or reckless, 3) act must cause severe emotional distress

II. legal protection turns on injury, other torts = smaller damages if distress isn’t
severe, for emotional distress can’t recover at all if distress isn’t severe
- Policy concerns: might open up floodgates, but if claims aren’t unfounded than
that’s not a social bad; may even out playing field by giving people in vulnerable
positions a redress for abusive conduct; more costly for debt collectors to take
debtors to court than to hire someone to harass them which could lead to
increased credit costs, add to cost of doing business, which would increase costs
of goods/services; another problem is that outrageousness is a vague standard,
not clear rule, unfair to defendants

III. not outrageous for store clerk to cuss at customer, she needs to toughen her
hide- want people to feel free to insult others

-Jones v. Clinton- shaking, upset, bawling, not severe enough for emotional
distress-not outrageous

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 -private setting she chose to enter, one brief encounter, no repetition, in
private, no harm in asking; he’s ultimately her boss, power differential

-bill collection cases-outrageous b/c conduct is repetitive

-Factors to consider in determing whether conduct is outrageous: setting,

workplace v. private setting, repetition, power positions of parties

Trespass to Land

Elements: 1) any unlawful entry, 2) unconsented and w/o privilege, 3) intent,

purpose or knowledge to a substantial certainty to be on property

-physical presence on land, intent to be where you are, don’t have to intend to be
on other’s land, don’t have to harm other’s land, key is claiming other’s property
as your own- great importance in having quick remedy to settle land disputes in
feudal society

II. reasonable mistake isn’t a defense

III. can sue for nuisance if something harms your enjoyment of property, but
must prove property is actually damaged unlike in trespass, social utility can also
be a defense to nuisance but not to trespass;
-particles/gases/fumes can trespass, but must prove 1) an accumulation of
particles on land,2) and must prove actual and substantial damages—policy
concern is that if didn’t have to prove damages everyone w/ stinky air could sue
for trespass, would open floodgates to frivolous suits; here not claiming
ownership, so no imperative of needing to resolve land title

IV. air close to the ground on your property is part of your property b/c potential
for damage, sufficient interference w/ use of property to interfere w/ owner’s
right of ownership-don’t need to prove damages
-air travel law is federalized mostly today, so common law overruled by
this
-trespass common law still controls disputes over underground property

V. if people are invited onto land but overstay their welcome then it’s a
trespass, can overstep invitational bounds by time (Rogers), place (go beyond
area of permission) or purpose/ doing something unauthorized by permission
(kid stuffing tennis ball in pool pump)
-injuries don’t have to be foreseeable in trespass claims

Trespass to Chattels

I. need actual damage/ injury to chattel, unlike real property, actual harm is
required w/ trespass to chattels—need purpose of knowledge to substantial

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certainty the conduct will lead to intermeddling w/ chattels- reasonable mistake
of ownership isn’t a defense

II. Elements: 1) act, 2) with intent/ purpose or knowledge to substantial

certainty that act will intermeddle w/ chattel of another, 3) dispossession
-was harm to servers and CompuServe customers; servers being
overloaded to intermeddling w/ chattel of another w/ spam
--mass e-mails= harm employer, but not trespass to chattels b/c no harm to
property itself, other collateral economic loss wasn’t harm to chattel and t/f not
actionable
-remedy available is damages

Conversion

-conversion is more serious interference than trespass to chattel-remedy is actual

value of thing at time of conversion, defendant buys thing from owner, forced
sale—destruction is ultimate act of dominion
-must be dominion over thing
-never denied use of papers, deprivation of use would be conversion
-state of mind-the worse the state of mind the greater the interference, the more
likely ct will say you’ve got to buy it, ask if what def did warrants a forced sale?
-look at extent and duration of exercise of dominion, intent, good faith,
inconvenience to owner and expense to owner, damage to chattel
-damages are value of property converted, fair market value at time of conversion

III. Privileges

Consent-if there was consent then there wasn’t a tort, Based on

autonomy

I. -look through defendant’s eyes to determine if consent existed-b/c

impossible to determine subjective consent, need objective measure
II. -consent can be implied through conduct in absence of verbal or
expressed consent
-actions of victim (holding up arm), victim’s volition, setting (everyone in
line is getting shots/ signs that said vaccinations would occur), no verbal
objection
III. -Is it a jury issue?—standard-could you reasonably believed the person
consented based on their conduct
-policy: utilitarian, social utility-there are socially useful touches, so if
consent didn’t defeat tort doctors would be hesitant to touch patients; corrective
justice- if you consent then there is no wrong
IV. -usually, plaintiff must prove absence of consent, it isn’t part of
technical defense, but often comes out of defense as a practical matter
-feminist critique- reflects male world view w/ autonomous actors w/
general free will and choice, significant degree of coercion, submission not
autonomous consent

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Limitations/Scope of Consent-

-scope of consent: 1) rules of game, 2) general customs

-3 little pigs, general customs of kids at Disney, stick finger up nose, would
it look to a 5 yr. old like pig consented to this touch

Capacity to Consent

- can sometimes imply consent in an emergency, look at 1) time urgency element,

2) outcome/ seriousness of consequence
-doctor should’ve had her sign a broad consent form: “necessary or
advisable” is broad=good;
-state statutes authorize who has legal authority to consent for people
unable to do so themselves: durable power of attorney for health care- you can
assign someone to give consent for you if you’re unable to

-statement of consent must be made near time of situation- problem w/ living

wills is idea of what you consent to probably will change over time

-emergency rooms-implied consent-cts give great leeway

-kids can’t consent to everything, parents can consent for them : mature minor
rule, kid can consent if 1) close enough to majority age that they can readily
understand nature of procedure, 2) procedure would benefit the kid

-De May- consent is invalid if obtained through fraud or deceit- deceit must go to
the essential character of the act, not just any non-truth, doc had affirmative
obligation to disclose b/c fiduciary relationship

-voluntary intoxication-drunks are like kids b/c they are impaired to point where
they don’t have capacity to understand the nature of the contact

-can withdraw consent

-Hart v. Geysel- can consent to a crime, t/f if hurt in prize fight you can’t sue if
you actually consented-Restatement adopts this rule; policy-1) corrective justice-
plaintiff doesn’t have convincing equitable claim to compensation if he consented
to touches which harmed him, 2) deterrence- maybe you won’t fight if you know
you can’t recover for injuries sustained, 3) resources of state shouldn’t be used to
transfer wealth from one lawbreaker to another, 4) legislatures would have
written it into criminal statutes if they wanted criminal statutes to impact civil
liability rules
if they had ruled that you can’t consent to a crime it would have these
policy functions= deterrent- person who thinks they’ll win fight may be less likely
to fight if they know if they win they will lose a lawsuit; also compensation to
those who are injured; it will help criminal activities be brought to light,

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especially consensual crimes, if injured party can sue, social value in wanting to
uncover illegal activities
-exception: statutory rape-- if criminal statute is enacted to protect
plaintiff from their own inability to make good decisions than consent won’t bar
claim

-Elkington v. Foust- minors can’t consent to sex w/ old men b/c they lack
capacity and understanding; can’t take advantage of consent he coerced her into
giving
-other things that may affect capacity to consent-low IQ, comprehension issues-
must appear to defendant that plaintiff lacks the capacity to give consent

I. burden on pl to prove there wasn’t consent, there are useful

touches—analyze consent thru eyes of def, look at setting, signs,
verbal cues, volitional acts
II. rules of game
III. general customs
emergency- time urgency, seriousness of consequence-most states have statutes
that list who can consent for people incapable of consenting, consent forms
-necessary or advisable (pl loses) v necessary and appropriate (pl wins)
-expressions of future intent normally not binding, can change mind
-expression of consent right now is effective even if it would be life
threatening to deny treatment if patient currently competent to express opinion
-living will-notarized, witness, gives solemness, prob is expressing future
consent so you may change your mind-better is durable power of attorney for
healthcare
-emergency rooms-implied consent, cts give leeway to emergency rooms,
serious consequences if they don’t touch right now

kids-can’t consent, parents can consent on their behalf

-exception-mature minor rule- 1) child is close enough to age of
majority that they can readily understand procedure, 2) it has to be for their
benefit
-parents don’t have to consent for football; can consent to some touches
but not others

SELF DEFENSE
I. broad scope
II. mistake is ok, as long as it is reasonable
a. can be wrong about being threatened
b. can be wrong about who is threatening you
III. reasonable amount of force-depends on how much is needed to protect
self, look thru eyes of defender-amount of force that reasonably
appears necessary under the circumstances
a. subjective standard- look to defender’s age, gender, defenders
knowledge of threateners predisposition to violence

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 b. Restatement § 63 adopts objective standard-may be more
appropriate in tort b/c deciding how to allocate loss, rather than
having someone’s liberty at stake like in criminal
c. Belief of threat may be influenced by race-may be uncomfortable w/
legitimizing some of def’s reasonable fears
d. Cultural factors can be taken into account
IV. Can use deadly force only if you reasonably believe deadly force is
necessary
a. some states require duty to retreat, none require duty in non-deadly
force context; some states don’t require duty to retreat, don’t have to
retreat from home or place of business
V. Def must prove self defense was reasonable
VI. Threat must be imminent

DEFENSE OF OTHERS
I. Some juris say rescuer can make reasonable mistake (you’re your bro’s
keeper); some say no reasonable mistake allowed (mind your own
business)

DEFENSE OF PROPERTY

I. if you’re on property you can use force to keep someone away from
your house, must be reasonable
II. can use reasonable non-deadly force to protect property
III. can only use deadly force to prevent felony of violence or capital crime
a. GA § 16-324-can use force likely to inflict death or serious bodily
injury when reasonable person believes necessary to prevent
forcible felony or when another human life is in danger
b. OK- can use any force necessary to prevent burglary of a dwelling
IV. tension between values: you should be able to use force to prevent
stealing of your property v human life is worth more than property

RECOVERY OF PROPERTY

a. can use reasonable force to take back property if fraudulently

obtained
i. must be in fresh pursuit
ii. must demand it back
iii. no mistakes allowed
iv. law set up to encourage use of legal system rather than self-help
if possession has already been transferred to reduce breaches of
peace, increases price of goods b/c pls have to go to ct rather
than use Guito
v. can trick someone, just can’t use force
vi. Shopkeeper’s dilemma- shopkeeper priviledge to detain and
investigate b/c w/o privledge would have to let thief walk away
a. reasonable force is ok

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 b. must be reasonable suspicion
c. Restatment § 120(a)- merchants have privilege, private
citizens don’t b/c don’t have same dilemma

NECESSITY
I. privilege b/c of necessity-for public good, makes sure public officials
won’t be too cautious so that they’ll do work w/o having to worry about
liability
II. can make reasonable mistake based on appearances
III. private citizens can be privileged
IV. actual property must be threat and not what’s in property
V. Compensation under “takings/just compensation clause”-if gov’t just
using property they must pay for it; if destroying threatening property
they don’t
VI. Easier for 1st party to have insurance, they know best how much
property is worth, don’t have to litigate, lower transaction costs
VII. If private risk takers, they stand to get all benefits, so they won’t
hesitate to destroy another’s property for their own benefit, so privilege
of necessity but still have to pay-2 parties in commercial relationship,
insurance, unjust enrichment, fairness
VIII. Source of danger can’t be plaintiff-if def jumps on pl’s truck to avoid
pl’s pit bull, def won’t be liable to damages to truck
IX. The actor is not privileged to defend himself against any force or
confinement which the other is privileged for any purpose to inflict upon
the actor except where the other's privilege is based upon a reasonable
mistake of fact not caused by the fault of the actor.
X. bus driver privilege b/c doing reasonable investigation, like privilege parent’s have to
discipline children---if there is good reason to recognize privilege draw argument on
policies and other privileges

CHAPTER 4: NEGLIGENCE

I. Elements: 1) Legal duty to the plaintiff, 2) breach of that duty- duty

to exercise reasonable care, 3) causation-causal connection between
breach of duty and harm for which pl seeks compensation, 4) actual
damage/harm-injury must be one recognized by law
II. Identify Specific Act or Omission that might be considered
unreasonable
III. Ask whether def’s conduct was reasonable-1) objective
reasonableness-then physical disabilities, mental disabilities, age,
superior knowledge, distraction, emergency, 2) economic
considerations-BPL, 3) customary practice-in general and for
professionals, 4) did it violate statute, 5) circumstantial evi-inferences,
presumptions, shifting burden of proof
REASONABLE PERSON STANDARD
a. reasonable under circumstances-reasonable people may disagree
b. objective standard, doesn’t matter what def thought

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 c. may be unreasonable to fail to find out information (purple traffic
light)
d. reasonable person can be distracted-jury decides if distraction is
sufficient
e. reasonable person standard is floor not ceiling- people w/
specialized knowledge are held to higher standard
f. custom is relevant in determining whether def acted reasonably
g. emergency, like distraction, can make unreasonable conduct
reasonable
i. can’t argue emergency if you created the emergency
ii. person can still be unreasonable in emergency
h. more personalized standard for kids unless they’re engaged in adult
activities- look at maturity, intelligence, age, experience, ignorance
can be taken into account
i. mental impairments
a. Restatement- don’t take mental impairments into
account
b. WI- insanity may lead to conclusion def was
reasonable if insanity prevents him from complying
w/ duty to exercise reasonable care and there’s no
forewarning
j. reasonable person may be expected to take precautions against
foreseeable risks that haven’t happened before, but risk must be
foreseeable—character and location of premises
a. weigh benefits to public, probability of injury, cost of
precaution necessary to prevent injury-should take
simple precautions—weigh benefit of industry
against potential damages—Bender
counterargument, safety concern is paramount
b. what was reasonable 20 yrs ago may not be today
LAW AND ECONOMICS/BPL/HAND FORMULA
c. BPL/Hand formula- to decide if parties failure to
take a precaution was reasonable compare:
i. B-burden of taking the precaution (could
include injury costs created by new hazard)
ii. P-probability of accident occurring
iii. L-cost of probable loss that will occur if
don’t take precaution
iv. if B is less than PL, then failing to take
precaution is unreasonable, if B is greater
that PL then reasonable
v. if P close to zero almost any B will be
greater so not unreasonable
vi. particular parties ability to pay is irrelevant,
look at whether precaution is cost effective
from a societal standpoint

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 vii. In IL and most other states, cts don’t give
jury Hand instructions and just use
reasonable person standard
viii. Pl must present concrete evidence of costs
of precautions, precautions shouldn’t create
additional risks
OTHER STANDARDS
A. Caring neighbor standard- this standard could stereotype women by
assuming they’re unreasonable, but Bender supports b/c reasonable
person standard may have inherently male bias b/c male jurors—
maybe means subjective good faith

(B) The Professional

I. ordinary prudent pilot- pl must use expert witness to testify
what ordinary prudent reasonable pilot would do under the
same or similar circumstances-then pl must have witnesses
testify that def didn’t meet this standard
II. Experts testify: need to establish standard of care itself
and establish that it wasn’t done-must testify not the
custom and a reasonably prudent doctor, not just the expert
III. Malpractice-neg by professionals
IV. Statutes define when expert testimony is necessary, 9-11-9.1,
lists specific professionals
V. Ordinary lawyer-knowledge and skill of ordinary lawyers, must
exert best judgment, exercise reasonable care-pl has to prove it
wasn’t custom by bringing in expert witnesses to testify what
ordinary reasonable lawyers do
VI. Standards of profession-role of custom is relevant, can comply
w/ customs and still be negligent normally, but customary
practice of professional is standard of what is
reasonable, if no evidence of custom that pl loses at
summary judgment, custom is conclusive w/
professionals—to give jury guidance, expect professionals to
look out for client’s best interest
i. Expert witness must testify that def did or failed to do
something that would be different from custom
ii. rarely cts will say customary practice is negligent as a
matter of law (usu where B is small and PL is great)
iii. accepted practice v. customary practice- customary
practice is empirical(what people do) whereas accepted
practice is normative (what does med community think
should be done)-may be difference between what’s
customary and accepted, laziness
VII. Experience doesn’t matter
VIII. Standard of care is objective not substantive (what is customary
among physicians, not what one doctor would do)

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 IX. Contract-allow parties to determine liability rules, allow parties
to negotiate, private contractual obligations will be better than
gov’t imposed ones
X. Common knowledge exception- If act doesn’t have anything to
do w/ professional judgment don’t need expert, pl trips in
hospital, jury deemed competent to decide if there was neg w/o
expert witness, foreign objects cases
XI. Locality Rule-expert must testify to standard of care in the local
community-to protect rural docs who don’t have same skill as
urban docs, limits witness pool; some juris expand to similar
localities, probs in defining similar community-some cts
abandoned locality rule b/c med edu and standards are similar
throughout the nation now in those juris experts will testify to
national standard of care, abandonment vastly expands pool of
expert witnesses (pl no longer has to find local doc willing to
point finger at other docs in same community) so greater # of
cases can survive summary judgment and directed verdict so
jury decides in the battle of the experts
Adequacy of Disclosure/Informed Consent-to determine if doc was neg or
not in providing info,(expansion of doctrine: physical risks-psychological risks-
disclose risks of not touching-disclose financial/research interests, gets far away
from roots of battery) 2 approaches
1) Patient materiality standard: what is material to the patient
a. need expert to testify what material risks of procedure are but
jury will determine whether or not they’re material, what a
reasonable patient would want to know
b. we trust customary standard to determine how docs should treat
patients, but different values implicated in informed consent
cases—preserve autonomy and freedom of choice
2) professional custom approach: what is customary to disclose to the
patient, consistent w/ traditional medical malpractice
a. pl would have to present evi of what customary standard is by
using expert witness to say what docs normally disclose about
the procedure and information about medical facts; expert
testimony is indispensable, if no expert def gets directed verdict
unless it’s common knowledge
b. doc can fail to disclose things that that the custom doesn’t think
patients need to know
c. give better notice to docs of what a ct will decide, how are docs
to know what info to give under patient materiality standard
I. Docs must disclose psychological risks associated w/ abortion
procedures and others sometimes
II. Doc needs to inform patient if doing nothing is or is not an acceptable
choice-patient can sue if doc did nothing but didn’t tell patient he could
do something-might be a risk if dr doesn’t disclose risks of not touching
III. Could be danger of info overload, if doc gives patient too much info
they’ll stop listening, that’s a copout for not informing people fully

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 IV. Exceptions:
a. Don’t have to disclose risks if they’re ones that the patient
knows or should know about/common knowledge
exception-if possible that person wouldn’t know doc must disclose
—
b. don’t have to disclose if patient will be too distraught and
it will interfere w/ their decision making/info could be
harmful—professional custom standard used in deciding whether
determination to w/hold info was good idea in given case
c. don’t have to disclose in emergencies
V. Actual injury has to be the undisclosed risk-if X wasn’t disclose
it must be X that happened
VI. Causation- Failure to disclose is a cause of action only if it
would’ve changed pl’s mind (materiality)
a. Objective standard: if reasonable patient would’ve changed their
mind
i. Some juris that adopt patient materiality standard adopt
objective standard b/c don’t want patient to say “now that
I’m hurt of course if you’d told me I wouldn’t have done it”
b. Subjective standard: would this patient have changed their mind
i. Consistent w/ autonomy idea of informed consent—jury can
consider medical facts, peculiarities of patient, if procedure
would’ve saved their life to determine if patient would’ve
consented-rebut argument in favor of obj standard b/c jury
doesn’t have to accept patient’s self-serving testimony
c. Doc may have disclose if it’s he’s never performed the operation, if
he’s HIV positive—whatever is material, coke habit-could argue it’s
material
d. Doc may have to disclose his financial incentive in treating patient
VII. GA Non-disclosure
Phase 1
a. Young v Yarn: Ct construed OCGA 31-9-6 to mean there’s no
doctrine of informed consent b/c statute left out language requiring
it-all doc must do is disclose general terms of treatment, nothing in
statute says you have to inform about risks, just tell patient what
you’re going to do--overruled by Ketchup
i. Consent might be issue in battery cases w/o informed
consent rule
b. 31-9-6: if consent form authorizes doc to perform procedures that
are necessary AND appropriate, then doc would be liable under
informed consent statute
c. if it said necessary OR appropriate then doc wouldn’t be liable
under informed consent statute
d. w/o informed consent doctrine these become battery cases
Phase 2
e. 31-9-6.1-changes law to specify some procedures for which doc
must inform patient about the procedures

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 i. applies to certain medical procedures: surgeries involving 3
types of anesthesia, diagnostic procedures (introducing
contrast material), amniocentesis—exclusive list, very
limited informed consent in GA
ii. if covered procedure then doc must disclose 6 things, 3 most
important
1. material risks-any material risk reasonably accepted
by prudent physicians, risks associated as material by
the reasonably prudent physician
iii. does not require disclosure of personal info even if it would
affect patients decision
iv. reasonable prudent patient standard-question is whether
this patient would’ve done something different
Phase 3
f. Ct adopts common law of informed consent where Dr must disclose
the material risks and alternatives (ketchup)—they characterize 31-
9-6.1 as adopting the patient materiality standard (reasonably
prudent patient unlike statute that says material risks accepted by
reasonably prudent physicians-don’t leave it to jury to say what’s
reasonable)—
i. Now dr can violate common law w/o violating the statute

6. Violation of Statute: 3 views:

1) Unexcused violation is neg per se- (majority
view/Restatement)party who bears burden of proof will win as
matter of law and it won’t go to jury b/c violation is more than
evidence it’s conclusive (strongest procedural effect)—can be
defenses like contributory neg, possibility of excuse
2) Presumption of neg-violation creates a presumption that actor’s
conduct was unreasonable/negligent-can be rebuttable,
presumption is that it was neg, but it’s a question for jury; person
who violated statute has burden of rebutting the presumption by
establishing that it was an excused violation, (more dangerous to
abide by statute, custom to violate) but once presented evi that
conduct was reasonable it’s a jury issue- def must present evi or else
he’d lose as a matter of law at summary judgment or directed
verdict
3) Violation is only evi of neg: (minority) pl shows def violated statute,
it goes to jury, no directed verdict
a. pl must be in class of people that statute is designed to protect
and risk must be type of risk statute intended to prevent-talking
points, what did leg have in mind
b. won’t use statute to impose civil liability where there would be none at
common law; statute must be clear, won’t impose duty that doesn’t exist at
common law or if civil liability would be disproportionate to fault

14
 c. Leg enacts punishments in statutes—so cts are adopting statutes as what a
reasonable person would do under the circumstances (reasonable man
might not always abide by the law)
d. Reconcile w/ BPL: the leg decides that taking costs of certain precautions
are less than the probable losses that will result if we don’t take them-leg
rules are products of input from lots of sources not available in litigation,
one rule fits all approach is easy to apply
e. Still need causal connection b/w violation and injury
f. Administrative regulation: sometimes given lesser effect than
statutes, even then may be admissible of evi of neg: Leg empowers admin
agency w/ to engage in rule making; more indirect check on admin
agencies (have to vote out person who appointed agency people), statutes
more likely to reflect societies decision, but have more expertise and might
have better factual basis for deciding what’s reasonable than the leg
g. Municipal Ordinances: treated same as statutes normally; a few states
give lesser effect to them
h. 1) whether statute is kind of statute that should be enforced
civilly (not if too vague, or if statute imposed obligations on people that
weren’t imposed as general reasonable care in tort), 2) was statute
violated, 3) whether pl is in class statute intended to protect, 4)
is injury that occurred the injury the statute was designed to
protect against, 5) is there a causal connection between
violation of the statute and the injury

Exceptions and Excuses

i. Restatement provides excuses that make violation of statute not neg:
violation is excused when
a. Violation is reasonable b/c of the actor’s incapacity
b. He neither knows nor should know of the occasion for compliance
c. He is unable after reasonable diligence or care to comply
d. Emergency not of his own making
e. Compliance would involve a greater risk of harm to actor or others
g. Ignorance of Law is No Excuse: judge decides if it’s a legally valid excuse
and jury decides if there are facts to support it
h. Cts that apply neg per se often make exception for children who violate
rules, esp in contributory neg cases

Violation of Some Statute is Neg Per Se and Ct doesn’t allow

excuses:
1) laws to protect kids
2) pure food acts
3) safe place statutes
4) statutes prohibiting sale of firearms and other dangerous objects to
minors
-regardless of whether neg can be applied b/c of violation of statute, neg can still
be applied under reasonable person standard/BPL?custom

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1: compliance w/ statute may be evidence or reasonableness but conduct won’t
be deemed reasonable as a matter of law just b/c it didn’t violate statute-statute is
floor but not a ceiling, if can’t meet legal standard then you’re unreasonable, but
meeting it doesn’t necessarily mean you are reasonable

B. Res Ipsa Loquitur: you know by common knowledge that this kind
of accident doesn’t ordinarily happen unless someone is negligent
a. 3 elements pl must present evi of:
1) accident is one that ordinarily doesn’t happen w/o
negligence
i. Could need expert testimony if not a matter of
common knowledge—might need expert to testify that when this
unusual outcome occurs it is more likely than not the result of the
failure to use reasonable care from ordinary prudent physician,
custom, or accepted care standpoint-res ipsa still limited in medical
cases to common knowledge cases
2) the injury producing instrument is in exclusive control
of the def,
i. who had responsibility for the injury producing
object at the time of the probable negligence, can have exclusive
control vicariously; 2 entities can have exclusive control at the same
time—it’s about right of control of the injury producing
instrumentality, directs inference to the def
ii. Ybarra-ct can shift burden from pl to def, so
defs need to establish that they weren’t neg—only way evi will come
out, if defs don’t offer evi that they weren’t neg then they’ll have to
pay or def can collect from any one of them—prob here is that
innocent defs are having to pay; fiduciary duty seems important
-some cts embrace and some reject
-usu rejected in non-medical cases
3) pl can’t be contributing factor-if pl is neg then can’t
infer that def was neg
b. Everyone has duty to use reasonable care—doctrine good for
when pl can’t pinpoint precise act/omission
c. Rare/infrequent things can happen not b/c of failure to use
reasonable care-logical flaw to assume if it’s rare it must be neg
d. Relation to informed consent: if pl says we should infer neg b/c
bad outcome and def says no b/c this is inherent risk of the
procedure, then pl can say you should’ve told me about it
e. Procedural effects: 1) majority- may warrant inference that
jury can choose to use or not-res ipsa gets case to jury but up for
jury to see if they were convinced that there was probable neg,
2) presumption of neg unless def can rebut, 3) shift burden to
def and require him to prove by preponderance of evidence that
it wasn’t his fault

CHAPTER 5: CAUSATION IN FACT

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I. Even if someone has duty to use reasonable care and they breach it,
there’s no liability unless there’s a causal connection between the
breach and the harm
II. But for cause: pl must prove--if def hadn’t been acting negligently
the harm wouldn’t have occurred; imagine what would happen if def
had not breached their duty; have to be sure that more likely than not
the accident wouldn’t have occurred but for the def’s neg; change act
or omission and ask if you get the same injury; why might it have been
unreasonable
III. Expert needed if causal relation lies beyond common experience;
needs to be more than 50% chance that injury was caused by def’s neg;
need to ask expert “is it more likely than not that the injury was the
result of def’s neg”
IV. Identify act/omission alleged to be unreasonable. Identify
the injury. Ask if everything stayed same except for
act/omission would we have same outcome. If answer in no,
then there’s causation. If yes, then no.
V. Def can have expert testimony of possibilities rather than probabilities
to muddy up the water
VI. Lost Chance: death would’ve occurred regardless, but had def not
been neg pl may have lived longer or his chance of survival would’ve
been higher; in these cases pls don’t have to prove that but for def’s neg
more likely than not the injury wouldn’t have occurred where pl had
preexisting risk of death of greater than 50%
a. 3 approaches:
i. 1) traditional but for test w/ preponderance of the evi-if
more likely than not (51%)that pl would’ve avoided injury pl
can recover for all, if can’t prove more likely bad event
would’ve been avoided, the pl gets nothing-pl either recovers
100% or 0
ii. 2) relaxed causation/increased risk/substantial
factor--Let jury determine whether increased risk of
harm caused by def was a substantial factor in
bringing about the harm-if def’s neg increases risk of bad
outcome happening case goes to jury pl can recover for death
or nothing-jury will decide if this pl was one of the 40% who
would’ve lived or one of the 60% who would’ve died
iii. 3) Lost chance: pl couldn’t recover for death but could
recover for lost chance, usu lost chance of prolonged
life/losing chance of good outcome; rather than pl recovering
for bad outcome they[re recovering for lost chance of
avoiding the bad outcome—determine damages by taking
what damages would be for death and discount it by
probability of good outcome to determine value of lost
chance

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 1. pl must prove by a preponderance of the evidence that
there’s a loss of chance-must have expert testify that
more likely than not the pl’s chance of survival went
from 60% to 30% (or whatever the #s are)
2. Some states reject, some accept, some let jury decide
3. Policies in favor of accepting: detterence against docs
using unreasonable care when dealing w/ patients w/
less than 50% chance of good outcome, more accurate
allocation of liability w/ probability of harm caused,
corrective justice-def’s neg took something of value
from the pl so it’s only fair for them to be
compensated, doc is responsible for the uncertainty,
we don’t know what would’ve happened b/c of docs
neg, rule should benefit the innocent victim rather
than neg actor, makes aggregate payout closer to
probable harm caused (however only works if apply
above and below the 50% line in the aggregate)
b. Policies in favor of not accepting: misleading aura of precision,
arbitrary numbers, changes definition of injury, will add costs to
medical profession that may not be efficient, --but for test, some
people get paid that shouldn’t and some don’t get paid that should
but it works in aggregate w/ 100 people everyone above 50% will
get something, everyone under 50% will get nothing but def pays
out what he should, w/ lost chance everyone gets something and in
aggregate def pays out what he should but it only works if
percentages are accurate and in cases above the 50% line
c. If pl has more than 50% of survival, lost chance isn’t used, then they
use the but for test
d. Restatement section 26: does not talk about lost chance-it
recognizes the split in jurisdictions and that lost chance has been
accepted in the medical context, but says the wave of lost chance
has slowed and more recent cases reject it—comment takes no
position on whether lost chance should be extended to other areas
of tort law
2. Proof of Causation

1) Daubert: Sup Ct held FR of Evidence 702 superseded the Frye test

(scientific evi is admissible if it is based on a scientific technique generally
accepted as reliable in the scientific community) so now Daubert test is
need more than accepted theory, expert testimony needs to reflect
scientific knowledge, their findings must be derived by the scientific
method, and their work must amount to good science, the testimony also
must be relevant to the task at hand
a. in looking to whether it’s good science so as to allow the expert to
testify, trial judges look to whether it sufficiently reflected scientific
knowledge, whether it was independently generated, was it subject
to peer review, and was the scientific method used

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 b. a lot of deference to trial judge
c. epidemiology studies: expert testimony based on statistical data;
increase must double the background risk to meet the more likely
than not standard
i. increased risk approach-increase from 100 to 190/million
would get case to jury, all 190 could recover even though only
90 were probable effected by the element
ii. proportional liability-all 190 would get 9/19ths of their
damages, everyone gets something but no one gets exactly
what they should get
iii. ex, risk increased from 100 to 210—relative risk ratio greater
than 2, meets but for test-210 w/ bad condition all could
recover 100% under but for test and increased risk test;
under proportional test all 210 could recover 11/21 rather
than 100%
3. Concurrent Causes:
1) Joint and Several Liability: each party can be a but for cause of the harm,
neither cause would’ve produced injury by itself; ex, Hill, if driver had been
paying attention she wouldn’t have hit truck, if truck hadn’t been parked in
middle of road she wouldn’t have hit it; where 2 defs combined negligence
causes the same harm, the pl can recover from either or both of them,
if pl goes to truck owner, truck owner can go to car driver. Pl can only collect
once but from either or both of them.
a. Section 26 of the restatement: reaffirms the but for test- think
substantial factor test b/c they think it is standardless b/c how do you know
whether or not something is a substantial factor-LOOK AT RESTATMENT
SECTION

2) Multiple independently sufficient causal forces: Situation where 2 people are

negligent but if apply but for test you reach the conclusion that neither is the
cause in fact of injury b/c other guy by himself would’ve caused it, both causes
were sufficient by themselves to bring about the injury; 2 motorcycles and a
horse, ex Anderson- 2 fires, one caused by def, each would’ve destroyed pl’s
property on its own
a) substantial element: if can’t prove which one caused it, if def was a
substantial element in bringing it about they can be liable—pl can recover from
both of them
i. innocent party shouldn’t bear the burden of injury, but for test
would allow both to get off which would dilute deterrence and more neg people
will escape liability if there are more than 1 causal explanation for the injury
ii. Section 27 of Proposed 3rd Restatement—doesn’t use substantial
factor language, more analytically precise-LOOK UP RESTATMENT
iii. CA chose to eliminate but for test and treat all cause in fact
issues under substantial factor test

4. Problems in Determining Which Party Caused the Harm

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1) Shift Burden to Defs: where 2 defs are neg but pl can’t prove which one
caused his harm, he would normally lose under traditional but for test b/c part of
pl’s burden of proof is to show who hurt them, but some Cts allow the burden of
proving which def caused his injuries to be shifted to the defs so if def can’t prove
it wasn’t him them he’s held liable, pl can recover full amount from either one of
them-joint and several liability
a. innocent pl doesn’t know who caused his injury, better to hold
tortfeasor liable than pl—we know they were both neg
b. entire universe of potential responsible people in the ctroom
b. Acting in Concert: 2 tortfeasors doing something wrong together and
they know it
c. Restatement section 28(b): greater support than Summers for
proposition that if there were 10 defs that wouldn’t change outcome b/c they say
2 or more defs but you’d have to sue them all

2) Market Share: pl can’t identify which one of defs caused her injuries,
but knows that each manufacturers product contained the same flaw, so if
one was neg designed they all were
a. don’t apply joint and several liability if only 5 out of 200 potentially
responsible wrongdoers in ctroom b/c at least one of defs
responsible for the harm must be in ctroom
b. concerted activity-all people who acted in concert would be liable,
must encourage each other to be neg, joint and several
c. industry wide liability-if small industry can hold all jointly and
severally liable, modern application of concerted activity, parallel
conduct explained by conscious adherence to industry practice-
want neg person to be in ctroom even if don’t know which one it is,
want likely
d. Market share: each manufacturer pays each person injured a
portion of that person’s injury based on their market share-assigns
percentages based on their share of the market, assigns liability
based on percentages rather than jointly and severally liable-more
accurate in assigning likelihood of risk and in deciding what chance
was that each caused the injury
i. Defs are better able to pay for the injury, can insure against
losses by distributing costs into the price of their product,
manufacturer in best position to guard against dangerous
effects, easier it is for pl to recover the greater the incentive
for manufacturers to produce safely, in better position to find
out who’s really responsible
ii. CA says must have a substantial share of the market
represented by the pls in the suit so it’s more likely than not
that one of the def’s caused the harm
iii. Aggregate justice-defs paying out roughly proportionate sum
to harm they caused-it’s in pl’s interest to get as many people

20
 in market as possible b/c she only recovers percentage of
market share from the defs in the suit
iv. Relevant Market: national, state, local-if use local more
likely that you’ll hold the right def responsible for the right
share; market shares shift over time, easier to define
national than local markets, when national markets are used
there could be personal juris problems
v. If def can establish that the injury producing product wasn’t
theirs then they are dismissed from case; if pl can identify
the specific manufacturer other defs would be dismissed
from case
vi. Each manufacturer must pay out a sum that in aggregate is
roughly equal to the amount of damages they caused, they’re
paying people they didn’t hurt and people they did hurt less
than the amount of harm they caused
vii. Problems in determining what is the relevant market and
whether a substantial share of the market is present in the
suit

CHAPTER 6: PROXIMATE OR LEGAL CAUSE-defining the extent of

liability for admittedly neg act that is the cause in fact of harm

1. Unforeseeable Consequences
I) function of judicial policy making-identify and articulate why lines
should be drawn where they’re being drawn
II) Foreseeability-natural and expected result: if injury is too remote from
negligence- threat of overdeterrence (don’t want liability to be
disproportional to culpability)—1st party insurance may be more
effective than 3rd party insurance—could depend on where people are
likely to vote
a. Diff states may have diff rules on same issue-demographic or
economic considerations may explain result—all are attempting to
draw lines
III) Thin Skull Rule: where def should’ve foreseen that some injury was
likely but extent of harm wasn’t foreseeable—must take pl as you find
them
a. If defs neg speeds up death of someone w/ a fatal condition- def
would be liable for speeding up their death
b. Preexisting condition can be factored into damages, def would be
responsible for injuries to person w/ preexisting condition
c. Preexisting conditions make the consequences greater than
anticipated
d. Restatement section 20 embraces
IV) Direct Connection (Polemis): can be liable for direct consequence
of neg even if it wasn’t reasonably foreseeable--as long as there’s a
direct connection between neg act and injury there can be liability even
if all steps in between weren’t foreseeable—only when there’s some

21
 other independent cause having no connection w/ neg act can def be
relieved of liability—so def can be responsible for unforeseeable extent
and unforeseeable type of injury
a. Deterrence, corrective justice-innocent party shouldn’t bear costs of
defs neg
b. Limits are directness, causal connection, and intervening
independent causal forces
V) Wagon Mound 1: has to be some foreseeable harm for conduct to be
considered neg-if type of injury is unforeseeable def won’t be liable if
ideas of justice/morality think it’s too harsh a rule; considerations of
insurance-know how much to insure and make claim yourself so avoid
transaction costs w/ 1st party insurance
a. Where foreseeable consequences are diff from harm that actually
occurred there can be no liability, however under direct
consequences there would be liability if there’s no intervening actor
b. Ask what about act/omission makes in unreasonable? If what
happened to pl is something diff then there’s no liability
c. Restatement section 29: doesn’t matter if harm is greater or less
than foreseeable harm. LOOK UP
d. Wells argues we ought to draw distinction b/w unforeseeable
consequences that are greater than foreseeable harm and those that
are less, don’t want to let neg actor off b/c his actions were still neg
e. Def will always want to couch foreseeability w/ greatest level of
detail b/c the more detail the less likely it’s foreseeable, pl will want
it general
f. Way in which events occur need not be foreseeable so long as event
itself is to be anticipated
g. BPL: under Polemis, were B is 2 and PL is 3 and actual loss is 10, pl
would recover for full 10 as long as there’s a direct connection
between neg and injury. Under Wagon Mound, pl only recovers the
3 if the remaining 7 weren’t foreseeable.
VI) Palsgraf (Cardozo): Find duty in terms of forseeability, the risk
reasonable perceived defines the duty—unforeseeable pl not
unforeseeable type of harm
i. If only damage foreseeable was to property, def would still
have to pay if someone was personally injured
ii. Risk Rule: limit extent of liability to foreseeable risks of
conduct deemed to be negligent—position taken by
Restatement, no duty if unforeseeable risk to pl at time of
def’s neg conduct
1. fairness-if def can’t foresee it it isn’t fair to hold them
responsible for it-liability in proportion to culpability;
overdeterrence-imposing liability beyond scope of
foreseeable consequences might deter socially
beneficial conduct

22
 b. Dissent (Andrews): Alternative view—Proximate Cause--Duty isn’t
limited to those foreseeably at risk from def’s conduct, rather you
have duty to world at large
i. Must be cause in fact, then consider natural and continuous
sequence, intervening causes, directness (polemis),
remoteness in time and space, judgment and value—probs
not precise, no predictive value
VII) Sole proximate cause—if someone’s conduct is so extraordinary as to be
unforeseeable as a matter of law, then def can be relieved of liability;
not intervening cause, but sole cause (Yin, turnpike)
2, Intervening Causes: when should def be relieved of liability b/c of
something that happened AFTER their neg act; 1st have to find def was neg and
his neg was cause in fact of harm
I) Look to extent that 3rd party’s acts were foreseeable to def and the moral
culpability of the intervening actor
i. I) Intervening forces that break liability are called
superseding causes, can be natural or human; those
intervening acts that don’t relieve def of liability are called
concurrent
II) Was it normal and natural result of def’s risk? Injury to pl must be foreseen
but don’t have to foresee precise manner in which accident occurs—
a) if injury resulted as result of 2 diff actors’ neg, they both can be held
liable-joint and several liability-2 acts each of which is but for cause of
harm
III) 3rd party criminal acts: may be several proximate causes
a. if 3rd party acted w/ intent sometimes we won’t hold def liable b/c
they couldn’t intentionally foresee the act of the 3rd party—2nd
restatement
b. if the dangers of the unforeseeable conduct are the injuries to pl,
then def will still be liable—when train let young girl off in
Hoboville the unreasonable foreseeable risk was that she might be
attacked by criminals, she was attacked, so the alleged intervening
act is part of the risk that made the conduct neg in the 1st place--? Is
whether or not the intentional/criminal conduct of the 3rd party is
sufficiently foreseeable at the time of def’s act/omission that it can
foreseeably be part of def’s risk
c. 3rd Restatement section 33(a): if harm is one that made your
conduct a tort in 1st place (foreseeable), then you’re still liable b/c
you should’ve safeguarded against that harm, can be culpable of
non-culpable act—focus isn’t on whether intervening conduct was
foreseeable but whether resulting harm to pl was foreseeable-so ask
whether injury to pl was what made the conduct
neg/unreaonsable/foreseeable, it would diminish # of situations
where def’s escape liability, more cases would go to jury
d. judgment made about moral responsibility
IV) Pl subsequent suicide: If def’s neg resulted in the pl’s irresistible
impulse to commit suicide caused by the accident.

23
 a. Look for true volition, did pl make a choice
b. Probs-for pl there are probs b/c must prove irresistible impulse; for
def there are probs b/c although he did cause the injury the suicide
was unforeseeable to him
c. Worker’s Comp Rule: when accident was a substantial factor in
the decedent’s becoming incapable of normal judgment—under this
standard the def would be held liable more often than irresistible
impulse
V) Rescue Doctrine: allows injured rescuer to sue a 3rd party who
caused injuries of the rescuee
a. it is foreseeable as matter of law that rescuer could be hurt-
wrongdoer may not foresee coming of a rescuer but is accountable
as if he had—it’s foreseeable whether they foresee it or not
b. Restatement section 31: injuries occurring in case of rescue lie w/in
scope of orig tortfeasors liability
c. Will protect unforeseeable rescuer
d. rescuer ought to be protected and as a matter of allocating loss it’s
better that it be allocated to neg party who created the reason for
rescue, deterrence, fairness
e. rescuers of rescuers can recover
f. Firefighter Rule: someone in position is already compensated
for taking risks of rescuing and neg actor can’t be liable as well, less
protection for the more foreseeable rescuer—some juris have
abandoned or modified the rule
g. Def will be responsible for neg of doc, if he caused accident that
exposed the pl to the doc-doc’s neg is foreseeable—judicial
administration justifications, if orig tortfeasor wasn’t responsible
for injuries attributable to subsequent malpractice, ct would have to
separate out harms which might not be easy to do
h. If def put pl in situation where he’s susceptible to 2nd injury he’ll be
liable—ex, if def caused accident and pl was feeble and got
pneumonia b/c of injuries resulting from wreck
3. Public Policy:
a. Good idea to impose liability on social hosts who serve alcohol to
visibly intoxicated guests b/c will cut down on DD, added assurance
of compensation to victims of DD b/c now innocent victims can get
compensation from DD and social host, want to deter serving
people about to drive
b. May be unfair to social host who may not be able to tell if someone
is visibly intoxicated
c. Often it ct takes action, leg will be motivated to respond-here leg
enacted statute that based liability for social hosts on blood alcohol
content; if high it’ll create presumption that driver was intoxicated,
if low presumption that he wasn’t intoxicated, if middle a rebuttable
presumption; the social host would pay only a portion of the
judgment, modifying doctrine of joint and several liability, says

24
 social host is only responsible for a portion of the harm rather than
being responsible for the entire harm
d. Most juris-liability for social hosts has been rejected for social hosts
when guest is an adult—but in those may impose social host liability
when intoxicated guest is a minor (GA) b/c more foreseeable risk to
3rd parties, assessment about who’s morally responsible for the
conduct, adult drinker/driver is more responsible for his own
conduct than a minor
e. Commercial liability-drinker is morally responsible but added
assurance that victims will be compensated, plus professional
barkeeps can better tell if someone is intoxicated than private social
host
f. Don’t want liability extended beyond reasonable bounds b/c there
could be almost no extent to liability/overdeterrence—in Enright
they limit liability for DES cases to anyone exposed to the drug and
the next generation
i. Danger of overdetterence-defs already liable to those who
ingested it or were exposed to it in utero
ii. Claims of 1st party generation victims were enhanced by leg
that adopted special SoL and judicial determinations that
used market share which enhanced ability of 1st generation to
bring suits and t/f enhanced deterrent effect of that litigation

25