Professor Johnny C.

Parker’s
T o r t s : C o n t e m p o r a r y C a s e s , C o mm e n t s , a n d P r o b l e m s
W. B. Newberry Jr. • Final Exam Edition • Fall 1999

Bastard Bill’s Torts Outline

 Intentional Torts

Assault Battery
1. Intent 1. Intent
- Purpose of Causing or Substantial Certainty - Purpose of Causing or Substantial Certainty
2. Imminent Apprehension 2. Harmful or Offensive
3. Apparent Ability 3. Contact
Notes Notes
• Personal Integrity • One’s Person
• Conscious • Need NOT be Conscious
• Assaulted upon imminent apprehension •
• •

• Not applicable to overly sensitive •

• Mere words / threats have no significance without context... •
ability or actual contact •
• •

False Imprisonment Emotional Distress

1. Intentional Detention 1. Intent or Reckless
- Purpose of Causing or Substantial Certainty - Purpose of Causing, Substantial Certainty, Reckless Indifference
2. W/O Legal Justification 2. Extreme & Outrageous
3. W/O Consent - Major Outrage is essential
- Not so if Self Caused / Deserved
4. Caused by
- Violence, Threats, etc... 3. Causes Emotional Distress
- Anguish & Anxiety
5. Restrained Movement
- Place to Place 4. Causal Connection
Notes - Between Act & Outcome
• Does NOT exist if escape is possible Notes
• Escape is not reasonable if • Liability for Emotional Distress & resultant bodily harm
- unaware of possibility • Physical Manifestation of injury required
- avenue is dangerous • Doctrine of Transferred Intent is NOT applicable
- offensive to decency or dignity • Not for trivialties, etc... Exc. Pub Util, Inn keepers,Com Carriers

Trespass to Land Self Defense (Privilege)

1. Intentionally 1. Honest Reasonable Belief
- Purpose of Causing or Substantial Certainty 2. Reasonable Prudent Force
2. Enter, or Notes
3. Cause Thing or Other to enter, or • defense to Battery & False Imprisonment
• Reasonable mistaken belief Ok, Unreasonable belief NOT Ok
4. Remain on Land, or
• Deadly or Excessive Force not privileged
5. Fail to Remove • “Retreat first” is NOT required
Notes • Mere words (provocation) do not invoke privilege
• Unlawful invasion of another’s property • Unlawful arrest may invoke
• Trespassers go onto another’s w/o consent • privileged until disarmed
• May be Intrusion... visible or not • False Imprisonment or Assault may be a self defense
• Distinction between nuisance (trifle) and trespass (substantial) • Defense of others... same as above, but
• Unintentional Non-Negligent entry is not libelous, even if harm - only if 3rd party has privilege and
results - 3rd party needs protection, even if in mistaken belief

Trespass to Chattel Conversion

1. Intentionally 1. Intentionally
- Purpose of Causing or Substantial Certainty - Need not be of conscious wrong doing
2. Dispossesses 2. Dispossesses another of
- No Impairment Required 3. Destroys or Alters
- Damages for loss of Possession
4. Uses or Exceeded Useage
3. Impairs 5. Disposes
- Damage Proof Required
4. Deprives 6. Misdelivers
- Damage Proof Required 7. Refuses to Surrender
- Requires Return Request
5. Harms bodily or Interest
Notes
- Damage Proof Required
• Dominion or Control whether by Gross Negligence or Recklessness
Notes
• Market Value of Tangible property (incl. money, stocks, etc...)
• Recoverable up to Market Value plus damages
• Not land or attachments, or other Damage Expenses

W. B. Newberry Jr. Fall 1999 - 2 Torts 5154-002

 Intentional Torts
Consent (Privilege unless)
1. Lacks capacity to give consent
2. Coerced
3. Mistaken about nature or quality of invasion intended
4. Conduct of a kind no one would consent
Notes
• Implied: Overt Manifestation would lead RPP to believe
Express: Specific knowledgeable agreement
• Consent is vitiated when Fraud or Mistaken as to
- Relation: false pretence
- Purpose or Necessity: contact not necessary for treatment
• Surgery: general in nature, extends to other treatments in local of
original treatment, when required by sound professional judgement
• Affray: Maj.-Each party resp. to other,
Min./Restat.-No liability unless battery exceeds consent
Recapture of Property (Privilege)
Citizens Arrest
1. Detainee committed a felony or
2. Felony committed and reasonable belief suspect
committed felony or
3. Other commits a breach of the peace or
- in the presence of actor or
- belief other will renew breach of peace
4. Other has attempted a felony and arrest is made or
- at once or
- in fresh pursuit
5. Other causes actor to believe that facts exist that
give the actor the privlege to arrest
Shopkeepers (Old common law)
1. Inflict what is otherwise a false imprisonment to
2. Conduct a reasonable investigation
3. However at own perile if wrong
Shopkeepers (Restatement)
1. Reasonable belief another has taken a chattel or
2. another has failed to make cash payment for
chattel or service rendered,
3. privileged to, without arrest, detain on the premises
for time necessary for reasonable investigation.
Shopkeepers (Arizina statute)
1. Reasonable cause
2. detain on premises to question or to summon officer
- reasonable manner
- reasonable time
3. Reasonable cause is a defense to a civil or criminal
action of
- false arrest
- false or unlawful imprisonment
- wrongful detention
Notes
• Reasonable cause, purpose of detention and reasonableness of
detention to be determined by court when facts are not in
dispute, otherwise it is an issue for the jury
• Reasonable force may be used to detain,
1. but forse intended or likely to cause serious bodily harm
- is never privileged for purposes of investigation,
- except if required for self-defense
2. not privileged unitl other has been requested to remain or
- there is not time to make a request
- request would be futile
W. B. Newberry Jr.
Defense of Property (Privilege to Land or Chattel)
1. Intrusion
- not privileged or other causes actor to believe it is not privileged
2. Belief invasion can be stopped by force used
3. Request to desist
- a) disregarded, b) will be useless, or
c) substantial harm will occurr before request can be made
Notes
• Reasonable force not intended to cause death or serious harm
• Protective device if 1) not intended or likely to cause D/SH,
2) reasonably necessary, 3) typical & 4) “Notice” of its use
• Deadly force: 1) Reasonable belief of felony, 2) Force required to
prevent felony... if unwaranted-Punitive & Compensatory Damage
• Once stolen, force can’t be used, Except in hot pursuit
• Can’t do in absence what can’t be done in person
Necessity (Privilege)
Public Necessity Privilege (Individual)
1. One is privileged to enter the land of another
- if it is, or actor reasonably believes it to be,
2. necessary for averting an imminent disaster
Eminent Domain (Individual) (Destruction from Necessity)
1. Individual may lawfully
- enter another’s land and destroy his property
2. with reasonable judgement
3. when immediate action is required to
- save human life or
- avert an overwhelming destruction of property
Self preservation
1. right to destroy life or property
- an individual right rather than an attribute of sovereignty
2. if by a public officer
- must justify conduct as a natural leader not as gov. agent
Eminent Domain (Public Agent)
• Rights to compensation same if by an individual.
• Permanent appropriation w/o comp. not justifiable
• Cases of emergency rather than necessity is requires comp.
- emergency not defined as eminent calamity
• Necessity, extreme, imperative, or overwhelming
- mere expediency, public good, or utility will NOT suffice
• Public Necessity is a complete defense to an intrusion
• Public Necessity is NOT a defense for an invasion & may be liable
Privilege to enter or remain on land of another if it
1. reasonably appears to be necessary to prevent
- serious harm to the actor, his land or chattels or
- to another or a 3rd person, or the land or chattels of either
2. unless, actor
- has reason to know that one whose benefit the action is
taken is not agreeable to such action
3. if for benefit of actor or 3rd person, the actor is liable
for any legally protected interest of another
- unless harm averted is cause of anothers tortious conduct
• A possessor of property is a tortfeasor if he resists or repels
one acting out of necessity
Recover a chattel
1. Actor has an immediate right to possess
2. on land of another for reasonable time and manner
3. chattel on other’s property other than with actor’s
- consent, tortious conduct, or contributory negligence
• Actor is liable except if chattel is there by conduct of possessor
Fall 1999 - 3 Torts 5154-002
 Negligence Torts
Negligence
• primarily concerned with unreasonable risk
Rule: 1. Owed Duty of Care
2. Breached Duty
3. Cause in Fact and Proximate Cause
4. Actual Injury or Loss
• Negligence is used in two distinct manners
1. Judicial opinion as to nature of defendant’s cause of
action
2. Defendants duty to act and corresponding breach
• Injury of itself confers no legal right
• Danger itself does not constitute negligence
• Negligence of itself does not constitute liability
Establishing Duty
Does it Exist… (Perform Duty Analysis in accord with Circumstance)
What is Duty… (Comparative Standard. What would a RPPSSC do?)
• A justifiable legal relationship imposed between parties
• Is a question of law for the court based on foreseeable risk of harm
• Duty Requires (1 of 3 Formulas, all having same result)
• Risk Utility… (Commercial Evaluation)
1. Consideration of Risk
(Risk is danger that is known or should have been known)
Scope of Risk (Magnitude of Risk)
a. Social value of interest imperiled
b. Chance action will invade interest imperiled
c. Extent of harm if imperiled interest is injured
d. Potential number of people imperiled by interest
2. Foreseeability and likelihood of injury
(weighed against social utility of actor’s conduct)
RPPSSC
Reasonable person standard
• a community ideal of reasonable behavior
Physical handicaps (blindness, physical deformities, etc)
• Treated like any other attendant circumstance.
• Deaf people held to standard of reasonable deaf person.
Non-physical handicaps (nervousness)
- not factor in RPPSSC.
Intoxication
• Drunk is not a defense. Regarded as a circumstance.
• Drunk driving, regarded you got yourself in the situation.
• Making self functionally deaf, blind, etc. treated like
intoxication... you brought it on yourself.
Insanity
• Not an attendant circumstance. Insane people held to RPPSSC.
- Compensations perspective (let the causer bear the costs)
- but if you have foreknowledge, you may be held liable.
Exception
• when mental or physical impairment happens suddenly and
without forewarning. (Heart attack, stroke, anurism, etc…)
Sudden emergency doctrine:
• Caused by a natural force or innocent or wrongful act of 3rd person
requires rapid decision, no time to consider alternative or consequence
- Duty does NOT apply where the actor
- had a duty to anticipate an emergency or
- the actor caused the emergency
- Not a defense to negligence or an exception to the
RPPSCC, but rather a factor of the circumstance
W. B. Newberry Jr.
Utility’s Social Value
a. Value attached to actor’s interest
b. Chance of advancing actor’s interest with this
behavior
c. Chance of advancing actor’s interest with less risky
(dangerous) conduct
3. Magnitude of Burden of guarding against injury
4. Consequences of Burden upon actor
• Carrol Towing… (Maritime)
- Burden < Probability X Injury (Liability)
B<PL… Duty Owed B>PL… Duty NOT Owed
- Probability is not chance of injury, but that should an
injury occur what is likelihood it will be serious?
• Common Law… (John & Jane)
- Is risk great enough that a RPPSSC would take a, or
other, precaution(s)… Duty Owed
Breach of Duty
- Is a question of fact for the jury
- What is Duty is
What a Reasonably Prudent Person in Same
or Similar Circumstance would do
- Comparison of What is Duty with that of the Defendant
Children
Childlike activities
- Standard of a reasonable child.
- Treated like any other attendant circumstance.
- Age and maturity is irrelevant…
- Adult standard applies once individual reaches majority.
Adult or inherently dangerous activities
- Standard of the reasonable adult.
- Goal to protect the public- we don’t care how old you are.
Typically viewed by age, experience and intelligence
• Most child negligence cases arose out of allegations of
contributory negligence where the courts were unwilling to hold
visibly injured children to the reasonable adult standard. This analysis
eventually found its way into ordinary negligence cases.
Professionals
Extra ability or skill
• Special knowledge is treated like any other
attendant circumstance,
- but it does not increase the standard of care
Reasonable person standard applies,
• based on skills and knowledge of particular
profession
- in similar locality
- at the time of service
Standard of Care (What is Duty)
• Basis is of RPPSSC for particular profession
- RPSSSC… Superman held to reasonable Superman standard.
Fall 1999 - 4 Torts 5154-002
 Negligence Torts
Malpractice
Medical
Medical Malpractice
1. Presumed to possess, practice and apply skill
and learning of ordinary practitioner.
- Malpractice if absent skill & learning or failure to apply
2. Did something forbidden or forgot to do
something required by
3. Medical Standard of local community
- must be shown by affirmative evidence
- absence of affirmative evidence, jury not permitted to speculate
on the standard or if physician has departed from standard
4. Negl. never presumed, must be affirmatively proven.
- unsuccessful result, does not merely suggest negligence
5. Standard of Care by expert medical testimony
- unless grossly apparent to a layman
6. Testimony another would perform different
treatment is not sufficient
- unless alternative deviated from community standard
Standard of Care (What is Duty)
1. Degree of ordinary skill, care and diligence of
2. Members in good standing in the same community
- in the same line of practice
Standard of Care (Local (Community) Standard)
• To protect rural hands-on learned practitioners
Substantive: Standard of ordinary practitioner in community
Evidentiary: Expert testimony of reasonable practice in similar
facilities & community
Standard of Care (National Standard )
• Standard of Care in Exercise of Skills & Knowledge
Modern Informed Consent
1. The informed exercise of a choice.
2. Not left to the discretion of the local medical group
3. Communication enables informed intelligent decision
- full disclosure of all material risks
- a risk is material if it would affect patient’s decision
4. 1st element in action on lack of informed consent
- Exception (must be proven by doctor):
- Primary duty must be what is in patient’s best interest...
- withheld if detrimental to patients overall care
- would alarm an emotionally or upset patient
- Emergency... patient in no condition to make
informed decision
• Unauthorized treatment w/o consent is a battery.
Malpractice- Lack of Informed Consent (must allege & prove)
1. Physician failed to inform adequately of
material risk before securing consent
2. Causation... if informed of risk, consent would
not have been given
- would have chosen no, or different, treatment had alternatives &
risks been known
- if would have elected treatment anyway, there is no action
- jury have to find patient would have refused treatment based on
credibility of patient’s testimony
3. Injury... consequences not known resulted in injury
Defense: 1. Physician proves patient knew of risks or
2. full disclosure would have been detrimental or
3. (Good Samaritan) emergency required prompt
attention and patient in no condition to decide
W. B. Newberry Jr. Fall 1999 - 5
Legal
Legal Malpractice, the plaintiff must prove
1. the existence of attorney / client relationship
2. the acts of the alleged negligence
- reasonable degree of care and skill
- reasonable and requisite knowledge for task
- expert testimony required
- unless so obvious, court can find as a matter of law
- avoid effect of hindsight in determining
reasonableness at time of alleged negligence
3. the proximate cause
4. the fact and extent of injury
- but for atty negligence, client would have been successful
- the value of the lost claim…
- what the outcome should have been
Cannon: A Lawyer Should Represent a Client Competently
(ETHICAL CONSIDERATIONS)
EC6-1 Act with competent and proper care and accept employment only in
matters of competence to handle
EC6-2 Keep abreast of current legal matters and assist in improving the
legal profession. Careful training of younger lawyers and give sound advice to
other attorneys seeking consultation
EC6-3 Should not accept employment in an area not qualified. However
may do such in good faith of becoming qualified, if not unreasonable in delay or
expense to client. May use the assistance of other types of professionals. If does
not plan to become qualified, accept only with client consent and then associate
with another attorney so competent.
EC6-4 Use proper care to safeguard the clients interest. If in a matter not
so competent, must undertake with diligence such required learning to become
competent. Prepare adequately and give appropriate attention to legal work.
EC6-5 Pride in all professional endeavors. To act competently from a calling
higher than of fear or disciplinary concern.
EC6-6 Should not seek by contract or other means to limit his individual
liability to his client
Disciplinary Rules:
DR6-101 Failing to Act Competently
A lawyer shall not
1. Handle a legal matter he knows or should have known
he was incompetent, unless associating himself with
another lawyer that is so competent
2. Handle a legal matter without preparation adequate in
the circumstance
3. Neglect a legal matter so entrusted
Duty to 3rd Party
Old Rule:
• Absent fraud, collusion or privity of contract, attorney is
not liable to 3rd party for malpractice.
Balancing Factors Theory: (California)
• When not in privity with 3rd party
1. extent of intended effect on 3rd party
2. foreseeability of harm
3. degree of certainty that plaintiff suffered harm
4. closeness of connection between conduct and injury
5. policy of preventing future harm
3rd Party Beneficiary Theory:
• Recognized in Every Jurisdiction
• Arises when two parties enter into an agreement with an
intent to confer a direct benefit on 3rd party.
• Must allege and prove direct purpose of the transaction or
relationship was intended to benefit the 3rd party.
Torts 5154-002
 Negligence Torts
Violation of Statute
• Major exception to RPPSSC going to Duty /
Breach
• Construed to define the standard by which
negligence (duty/breach) is to be determined
Affect of statute violation
1. Does alleged statute violation apply to the facts?
2. Procedural effect resulting from statute application
Application of Statute
1. Evaluation of Intent and Purpose of Statute
2. Is plaintiff a member of the class intended to be protected?
3. Is harm a type the statute was intended to prevent?
• 2 & 3… Negligence per se, or simply elements of
statute’s applicability
• Judge may interpret statute on basis of Logic of
Experience in absence of legislative history or
common law
Statutory Violation
• A mere violation does not render one liable
• Violation alone does not proximately cause injury
- The injury must follow from the negligence
- Must show injury due to negligence or unskilled treatment
Inference of Negligence
• Violation of a penal statute in a civil action
Rebuttable Presumption as Defense
• Rebuttal to presumption that violation of a statute
is Negligence per se
- If there is sufficient justification there is ordinarily no
violation of the statute, and
Circumstantial evidence
• Is sufficient if it supports the inference of causation or
negligence even if it does not rule out other possibilities.
• Two component for a burden of proof of circumstantial evidence
- Sufficiency to convince a judge the possibility is more
likely than not that defendant was negligent
- Sufficiency to persuade jury defendant was guilty of negl.
• Preponderance of Evidence
- Probability of negligence is so great that jury believes
facts with more than 50% confidence
Res Ipsa Loquitur: The act speaks for itself…
(An alternative way to prove a breached duty)
1. injury does not ordinarily happen if those in charge use due care,
2. instrumentalities were under the exclusive management and
control of the defendant, and
3. defendant possesses superior knowledge as to cause of injury
• evidence must be more than a case of 50:50
• Is a rule of circumstantial evidence and is not a basis for
imposing liability
• Purpose is to relieve plaintiff’s burden of proving a specific act
of negligence when plaintiff does not know what happened or
defendant has superior knowledge & info regarding the injury
• In a standard negligence case the plaintiff includes facts
demonstrating negligence
- In a res ipsa case the plaintiff excludes all other possible
causes and asks the jury to find that there is no way that
the defendant could not have been negligent given that the
accident occurred the way it did.
• Primary Use is as a “smoking out device” to get a tight lipped
defendant to talk when if withholding information
W. B. Newberry Jr.
- it is unreasonable to adhere to rule of law (statute) where
to do so would more dangerous.
Negligence per se (Negl. as a matter of law) (form of Strict Liability)
• Absent explicit legislative language creating civil
liability for violation of statute, a court is free to
1. apply legislative standard, or
- interpretation of statutory purpose may excuse violation
- purpose was not intended to protect the person injured, or
- even if it was, harm suffered was not intent of statute
2. retain common law RPPSSC
3. In either case, liability still does not attach unless the
violation is the proximate cause of the injury
- Even then, liability is not automatic, as defense of
Contributory Negligence still applies
• Qualifications that refute Negligence per se
- Statutory Purpose Doctrine
- Requirement of Proximate Cause
- Rebuttable Presumption (Excused Violations)
1. An excused violation of legislative enactment
2. Unless enactment is construed to permit an excuse,
a. reasonable because of actor’s incapacity
b. actor neither knows nor should know of the
requirement of compliance
c. unable to comply even after reasonable diligence
and care
d. confronted by an emergency not of own making
e. would involve a greater risk of harm to actor or
others
f. may be others as list is non-exclusive
Res Ipsa
Procedural effects of res ipsa
Inference (majority view): Allows the jury to infer negligence but it still
does not necessitate a finding of negligence in most cases.
Rebuttable Presumption (minority view): Calls for a presumption
of negligence on the part of the defendant.
Shifting of BoP (minority view): BoP shifts to the defendant to
prove himself non-negligent by preponderance of the evidence.
Restatement 328:
1. It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when
a. event which is not ordinarily absent negligence
b. other causes, of plaintiff and third persons, are sufficiently
eliminated by the evidence; and
c. the indicated negligence is within the scope of the
defendant’s duty to the plaintiff
2. Function of court to determine if inference may reasonably be
drawn by the jury or whether it must necessarily be drawn.
3. Function of jury to determine if inference is to be drawn in any
case where different conclusions may reasonably be reached.
Control rule:
The defendant must be in control of the instrumentality that was the
cause of the harm to be liable to the plaintiff for negligence.
Modified control rule:
1. Is the instrumentality within the defendant’s power or right to control?
2. The time that counts is not the moment of the injury, but rather when
the negligence itself occurred.
• Run-away car cases: tampering, mechanical failure, failure to lock, or
not putting the car in park and setting the emergency brake. These
cases also are likely to go to the jury on res ipsa.
• In cases wherein there are other agents within control scope of (D),
(D) is still responsible (Doctor in hospital setting)
Fall 1999 - 6 Torts 5154-002
 Negligence Torts
Legal Cause
Cause in Fact (C-N-F) (Causation)
Concept Confusion: (casual relationship between act and injury)
• Single Inquiry:
- affirmation of which determines liability
• Dual Inquiry:
- Cause-in-fact must be established, however proof that
defendant’s act caused plaintiff’s injury is insufficient
- the imposition of liability will be justified and the
extent thereof is determined by proximate cause
C-N-F standards:
• But-for: but for the act, injury would not have occurred
Proximate cause is a cause which, in natural and continuous sequence,
produces the injury and without which injury would not have occurred.
• Substantial Factor: A legal cause of injury is a cause which
is a substantial factor in bringing about the injury
Causation may be proved by testimony or circumstantial evidence
- a mere possibility is not sufficient to prove causation
- expert testimony can be used to establish causation, however
merely advisory and not controlling unless it is undisputed and
outside the ordinary experience and knowledge of the jury
Concurrent Cause Cases
• But-for: but for the act, injury would not have occurred
- Not appropriate in Concurrent Cause cases,
- Two causes concur, either one, operating alone, would have
been sufficient to cause the identical result
- All causes had an equally responsible role, responsibility
should be placed on both, else there would be no liability
• Substantial factors
- defendant can not escape liability for negligent conduct
because negligence of others contributed to the harm
- when a number of factors contribute to an injury, negligence
will not be considered a legal cause of the harm unless it was a
substantial factor in producing the injury
Identification Problems... (BoP Shifts to Defendants)
• Multiple defendants but only one cause-in-fact
- Borden of proof shifts to defendants to prove whom
caused injury and apportionment thereof
• Enterprise Liability Theory (industry-wide liability)
1. Small number of defendants in the industry
2. Defendants had joint knowledge of the risks
3. Delegated responsibility for risk to a trade association
- Shifts responsibility to the industry for causing the injury by
concert of action by their trade associations
• Alternative Liability Theory
- Must be proof defendant produced, manufactured, sold,
or was in some way responsible for product
- Problem exists wherein not all possible defendants are
identified… could result in named defendants being held
liable for another who is not a party
• Market Share Liability Theory (California)
- Overcomes AL failure to identify all possible producers
- Liability apportioned among defendants based on market.
- Plaintiff must join the manufactures of substantial share
and also meet the burden as to all other negl. elements
- If a defendant fails to meet the burden, each defendant is
liable for the portion represented by market share
• Market Share Alternate Liability (Washington)
- Preponderance of evidence that defendant was involved
- defendants may bring in other defendants
- damages are initially distributed evenly, else
- defendants proof of market share
- defendants unable to establish market, share equally
• Risk Contribution Theory (Wisconsin)
- Permitted action against only one defendant
- if no other defendants are impleaded by defendant,
damages are determined by jury in accord with
comparative negligence statute
W. B. Newberry Jr.
Proximate Cause (PC)
The Rubic of the term (Liability)
• issues of cause-in-fact, apportionment of damages, liability for
unforeseeable consequences, superceeding causes, shifting
responsibility, duty to plaintiff, and plaintiff’s fault.
Duty and proximate cause
• The crux of proximate cause is that because consequences can
run on and on until the end of time, equity requires liability be
limited to less than all harmful consequences of conduct.
Causation and proximate cause
• When primarily interest is whether defendant’s action was
cause-in-fact of plaintiff’s injury, proximate cause is obscured
by that of causation.
• When causation-in-fact and proximate cause are treated as
distinct questions, proximate cause takes on a life of its own.
PC Standards of Liability
• Foreseeability (is the cause a foreseeable risk of the duty)
- actor of ordinary intelligence should have anticipated
danger to others
- does not require actor to anticipate how the injuries will
grow from the dangerous situation
- direct and existing cause need not be sole cause, but must
be concurring cause as might be reasonably contemplated
- what actor believed would happen does not matter, rather
he should have reasonably foreseen that what would occur
++++++++++++++++++++++
- Defendant failed to guard against foreseeable risks
- If injury is not among foreseeable risks... no liability
• Direct Consequence
- Requires no more than a determination of C-N-F by the
Substantial Factors standard, thereby eliminating the
question of proximate cause, hence it becomes a Single
Inquiry form of Legal Cause analysis
• Egg Shell Rule- (Exception to Foreseeability)
- Exception to Foreseeability Standard... Defendant will be
held liable for consequences of egg-head defendants.
- When D’s action set off natural occurring latent condition
• Intervening Cause
- Not all intervening causes insulate original negligent actor
from liability
- Some intervening causes are viewed as
- combining, or acting in concert with original
negligence to establish liability of original actor
• Supervening Cause- (Exception to Foreseeability)
1. Independent of original negligent act
2. Adequate of itself to cause result
3. Not reasonably foreseeable
- When causal nexus between original negligence and harm
is broken by an independent and efficient cause which is
neither anticipated nor foreseeable.
- Original negligence legally transmutates into a remote
cause or mere condition
- Examples of Supervening:
- Negligence caused Mental condition resulting in
Suicide but victim was capable of realizing act
and had power to control desire
- Unforeseeable Acts of God or Force of Nature
- Intentional or Criminal Conduct
- NOT Examples of Supervening:
- Negligence caused Suicide when victim dilusional
or having irrestible impulse
- Acts of God or Force of Nature which were foreseeable
and within known risks of conducts
- Subsequent negligence involving a rescuer and the
Rescue Doctrine, primary & subsequent parties are liable
- Rescue doctrine does not apply to dangerous risks
particularly associated with the rescue activity
Fall 1999 - 7 Torts 5154-002
 Negligence Torts
Multiple Defendants
Concert of Action... (Joint & Several Liability)
1. two or more unite in,
2. a wrongful act against another,
3. intending at the time to committ act or
4. performing such under circumstances which charge them with
the consequences
• Injured need not establish how much each contributed
• Liability equal by all
- who actively participated by cooperation or request or
- who lend aid or encourage wrongdoer or
- ratify and adopt his acts for their benefit
- Express agreement not necessary, simply a common
design or understanding, even if a tacit one
• Proximate cause of indivisible injury
- each tortfeasor is individually liable for all damages
• Tortious acts of several parties concurrently causing injury
- each tortfeasor is liable for the whole of damages
Indivisibility of Harm... (Joint & Separate Liability)
5. where combined concurrent or successive negligence of
different persons acting independently
6. where the concurrent or successive negligent acts or omissions
or successive or negligent acts or omissions
- of two or more persons, acting independently
- are in combination the proximate cause and
- it is impossible to determine proportion
- responsible for the whole liability even though
- his act alone might not have the whole injury or
- same injury would happen from other tortfeasor
injured may optionally elect suit for damages against
- any one or more separately or
- all of them jointly
7. Negligence of two or more persons
- concur in producing a single injury are J&S
- even if there is no common duty, design or concerted act
Civil Procedure
• Changed from plaintiff option to one allowing defendant
- to implead other defendants
- seek contribution or indemnification in subsequent suit
Doctrine of Limited Duty (Public Policy Doctrine)
Failure to Assist
• Common Duty to avoid any affirmative act to make a situation worse
• Duty of Care as voluntary relationship
- attempted aid, and kept another
- takes charge and control from helping
• Good Samaritan (to encourage rendering of aid)
- Good faith emergency care (Duty to exercise due care)
- not liable for any act or omission
- unless due to gross negligence or for a preexisting duty
- increases risk of such harm (as opposed to incr harm?)
- harm suffered because other relied on undertaking of care
• Special Relationships requiring Duty of Care
- Common Carrier to Passenger Contractual
- Innkeepers to Guests Relationships
- Possessors of public land and Invitees
- Requirement by Law or Voluntarily takes Custody that
deprive other of normal opportunities of protection
• No Duty to Aid
- A person who has not imperiled another is not liable for failure
to render aid, unless there is a relationship giving rise to a duty
• State Hwy Patrol
- has right, but no duty to investigate accidents, however
- voluntary assumption of protective duty toward public,
- and thereby inducing reliance,
- the duty of care is that of private person
W. B. Newberry Jr. Fall 1999 - 8
Contribution of other tortfeasors (all joint tortfeasors at fault)
• allowed among negligent tortfeasors
• except for Family Immunity Doctrine (child can not sue parent)
Entitlement
• although injured may sue tortfeasors feasors separately,
- he is entitled to but one satisfaction
• where plaintiff settles with and releases a joint tortfeasor,
- other tortfeasors are released unless otherwise stipulated
- remaining tortfeasors receive credit from such payment
Indemnity (not all joint tortfeasors are at fault)
• Process of transferring entire liability of one tortfeasor to another.
• A tortfeasor may recover indemnity only in the following
situations. Where one has
1. only a derivative or vicarious liability for damage
caused by the other
2. incurred liability by action at the direction, in the
interest of, and in reliance upon the other
3. incurred liability because of a breach of duty owed to him
by the other
4. an express contract with the other containing an explicit
undertaking to reimburse for this character of liability
5. incurred liability merely because of failure, even if negl.,
to discover or prevent misconduct by the other
- 1-3 are liable, but not at fault
- 4 is contractural indemnity
- 5 is at fault, but merely passive or secondarily
- if of active or primary, contribution is the remedy
Joint Tortfeasor Legal Consequences
1. Release of one Joint Tortfeasor releases all
2. Prohibition of contribution between tortfeasors
3. Each Joint Tortfeasor is jointly and severally liable in total
Comparative Negligence
• Comparative Negligence is compatible with J&S, but only with
regard to plaintiff’s proportionment of damages
D1
Comparative Joint and
Negligence P Several
D2
Breach of Duty occurs when
- affirmative act places person in peril or incr risk of harm
- or an omission or failure to act,
- except when induced reliance is not expressed or implied
• Public Duty Doctrine
- if breach of “Public Duty”, amenable to the public and
punishable by indictment only
• Duty to Control... must also have ability to control
- Special Relationship between controller & controlled
- foreseeability of harm
• Foreseeable Criminal Activity
- (D) can not claim supervening cause if harm is anticipated
• Parental Control
Prevent intentional harm of others or unreasonable risk of self harm
- knows or has reason to know there is an ability to control
- and knows or should know of necessity or opportunity to control
• Liability to 3rd Person for Negligent Performance of Undertaking
- one who undertakes for gratuity or for consideration
- renders service for protection of a 3rd person or 3rd’s things if
- failure to exercise reasonable care increases risk of harm
- undertaken duty owed by other for 3rd person
- harm suffered due to reliance by other or 3rd person
• Duty to Exercise Reasonable Care by (D) can arise from
- a gratuitous promise
- an undertaking
- or holding-out
Torts 5154-002
 Negligence Torts
Doctrine of Limited Duty (Public Policy Doctrine) continued
Negligent Infliction of Emotional Distress (ED)
• If actor unintentionally causes ED to another, he is liable if
- actor should have realized conduct involved unreasonable
risk of causing the ED, otherwise than by knowledge of harm
or peril of a 3rd person (effect of F / ED on victim)
- from facts known, should have realized that if ED is
caused it may result in illness or bodily harm
Negligent Infliction of ED - Actor Contracted to Protect
• If actor violates Duty of Care designed to protect other from fright/ED
- matters not if harm is caused by internal operation of F / ED
• If actor’s conduct creates unreasonable risk of harm, otherwise than
by freight, shock or ED (effect of other than F/ED on victim)
- matters not if harm is caused by internal operation of F / ED
- cases when family member is placed at harm or peril
• Impact doctrine is dead, but replaced by Physical manifestation
• No liability for unusual sensitivities, unless known by actor
• Eggshell rule does not apply to Negligent Infliction of ED
• Exceptions to physical manifestation...
- Death-Telegram & Interferences w/ dead bodies (Lost)
Negligent Infliction of ED - 3rd Party
• 3rd Party may never recover, unless Physical, Temporal
and Relational Proximity of Victim is
1. Location relative to seen of harm / accident
2. Direct impact of shock from sight v. advisement from another
3. Relationship of plaintiff and victim
a. no temporal rule... case by case analysis
for
b. does for members of a nuclear family... stepparent
ese
c. does not apply to friends, distant relative, cohabitationists
eab
i. state’s interest in promoting marriage
ilit
y
ii. difficulty for court to establish relationship
• Zone of Danger
- Is a 1st Person action, not a 3rd party action
Injury to Fetus and Wrongful Life
• Viable but Unborn- Wrongful Death is actionable
- problem is difficulty with causation
• Not yet Conceived- Negligence of mother before conception
- child has action for injuries against tortfeasors
• Prenatal Injuries- Caused by mother is not actionable
- Caused by other is actionable
• Wrongful Birth- Parental action
- Negligence preventing parents from avoiding conception
or terminating pregnancy is actionable
• Wrongful Life- Child action... not actionable
- But for Negligence, parents could have terminated pregnancy
- no way to measure nonexistence to an impaired existence
Owners and Occupiers of Land Duty of Care
• Invitee (Express/implied invitation/consent for mutual benefit)
• Public Invitee (Invited to enter/remain for land’s public purpose)
• Business Visitor (Invited to enter/remain for business w/ possessor)
• Business Invitee (Invited to enter/remain for business w/ possessor)
1. maintain premises in reasonably safe condition
2. warn of hidden dangers known or discoverable with a
reasonable inspection
3. not liable for known or open and obvious dangers
a. unless owner knows or should have known dangers were
likely to cause harm despite its known obvious danger
i. where invitee’s attention may be distracted
ii. expectation invitee will proceed to encounter
risk because a RPPSSC would consider
advantage outweighs risk (grocery store isle)
- Includes contractors & employees
-. Not insurer of safety from unforeseeable criminal actions
- Reasonably safe entrance, exit & place for such purpose or
places arranged so as a RPP would think they are open access
- Does not have to provide shortest route to any area
- If possessor misled belief of proper ingress/egress, Duty is
to that of an Invitee
W. B. Newberry Jr. Fall 1999 - 9
- Duty diluted/extinguished for explicitly/impliedly
unpermitted activity or goes scope of invitation
• Scope of Invitation
- If exceeds purpose, area or time, Invitee status changes to
Licensee or Trespasser depending on circumstance
• Licensee (Express/implied permission/consent & for own purposes)
- liable if knows or should have known of unreasonable risk
that would not be discovered or realized &
- fails reasonable care to make safe or to warn of the risk &
- licensee does not know or have reason to know of risk.
- duty is lower than to invitees
- not liable for natural conditions as they should be apparent
- not liable for assumed/anticipated conditions of emergency aid
- social guests
• Trespasser (Enters/remains w/o privilege of consent)
- no duty other than not to injure willfully or wantonly
- reasonable care to not injure after presence is known
- Licensee if you know trespasser constantly intrudes small
portion of land, must take reasonable care for their safety
- Attractive Nuisance/Turntable Doctrine
(Artificial Conditions Highly Dangerous to Trespassing Children)
a. possessor knows children may trespass into area
b. knows danger is unreasonable risk of harm/death
c. child does not discover or realize risk
d. burden to eliminate risk is slight compared to harm
e. fails to use reasonable care to eliminate risk
- natural or artificial body of water excluded
• Lessees & Guests (no liability to lessee or guest unless)
1. Undisclosed Dangerous Conditions Known to Lessor
- Conceals or fails to disclosed danger
a. lessee does not know or have reason to know
about condition or risk
b. lessor realizes or should realize risk and
expects that lessee will not discover risk
- Actively Conceals Condition
a. Liability until lessee is aware and
has opportunity to take precautions
b. Otherwise only until lessee has had
opportunity to discover and take precaution
2. Condition Dangerous to Person Outside Premises
- Dangerous condition existed when lessor
transfers possession
- Liability continues as if never leased
3. Lease for Purposes Involving Admission of Public
- Dangerous condition when lessee takes possession
a. knows or could discover unreasonable risk
b. reason to expect public admittance before safe
c. fails to exercise care to discover, remedy or protect
4. Part of Land retained in Lessor’s Control
- Lessee Entitled to Use or Necessary to Safe use of
Part Leased
- could have discovered condition or risk and
- could have made the condition safe
5. Lessor Contracts Repair
- contracted by covenant of lease to keep in repair and
- disrepair creates risk preventable was covenant followed
- fails to exercise reasonable care to perform covenant
6. Negligence by Lessor in Making Repair
- purporting to have made repair or
- negligent repair makes it more dangerous or deceptive
• Person outside premises (be aware of encroachment issues)
- (Passive Use) Natural Condition (Not Liable / Liable)
- Rural... Not liable
- Urban... Liable for trees near highway
- Duty of Care includes inspection
- (Active Use) Structural Condition (Liable)
- realizes or should realize unreasonable risk
Torts 5154-002
 Negligence Torts
Damages
General Principles of Recovery
• Fundamental principal is compensation of wrongfully injured
• Purpose to return injured to original status,
- as well as money might restore injury
• Intentional Invasion
- Recovery of Nominal Damages
- w/o proof of Actual Damages
• Negligence Action
- Cause of action is only complete if damages for injury
- conform to the following legal requirements
Compensatory Damages
• Must, where possible, prove amount or extent of loss in manner
- to allow judge or jury
- to ascertain amount within reasonable certainty
• Only entitled to one action / satisfaction
• Not entitled to realize a profit or be put in better position than
prior to injury
• Should not provide double recovery except as
• Compensatory (Actual) damages are referred to as
- General Damages
- presumed to have accrued from the wrong
- need not be pled
- Special Damages
- natural or actual, but not necessary
consequences of the wrongful act
- must be pled to give notice & eliminate surprise
• Remote or Speculative Damages
- May not be recovered in contract or tort actions
- Not a natural, direct, or proximate result of breach or act
- Remote damages
- are absent casual connection (proximate cause)
- too far removed from conduct to be recoverable
- Speculative Damages
- same as Remote Damages
- cause is too uncertain
- Not allowed
- due to uncertainty of cause, not the measure of damage
- Burden of proof to the contrary is plaintiffs
- need reasonable certainty from evidence submitted
- fair & reasonable estimate / just & reasonable inference
Nominal Damages
• Mathematical exactitude not required
- need only reasonable certainty from evidence submitted
- fair & reasonable estimate / just & reasonable inference
- Exception is for Nominal Damages
• Small & trivial amount awarded for a technical injury due to
violation of some legal right, as such reinforces the legal right
• Applicable where
- right is invaded but no injury occurred
- injury occurred, but reasonable estimate is absent
• Can not recover Actual plus Nominal Damages
• Nominal Damages
- Intentional Tort, recoverable w/o proving actual damage
- Negligence, NOT recoverable w/o proving actual damage
- Does this mean Nominal Damages are not available
in Negligence action ???
- Actual ≠ Nominal, and
- Negligence ≠ Nominal w/o Actual, therefore
- Negligence = Actual ≠ Nominal
When damages can be proven with
mathematical exactitude, they must be proven
Medical, wages, lost earnings...
W. B. Newberry Jr. Fall 1999 - 10
Aggravated, Vindictive, Exemplary or Punitive Damages
• In excess of actual loss
• Extraordinary Cases
- Not as a matter of right to injured All the same
- As punishment to wrongdoer regardless of
• Exemplary Damages term used
- Theory of punishment
- As a restraint
- Reward for bringing wrongdoer to justice
• Punitive or Exemplary Damages
- Malice or gross disregard
• Punitive Damages
- Ordinarily not allowed without Actual Damages
- Jury has broad discretion & latitude
- absent statute limiting, no mathematical relation to
Actual Damages
- Quantum (amount) factors
- amount necessary for punishment & deterrence
- example needed to deter others
- pecuniary ability / financial worth of defendant
- public service for bringing (D) to justice
- Not recoverable for
- ordinary breach - contract
- simple tort (negl. tort) (not gross, willful or wanton)
Measure of Damages in General
• Reasonable certainty requirement
• Established methods or yardsticks of measuring damages
- However, damages typically depend more on
- principles of fairness, individual facts, pleadings,
evidence, theories, and arguments selected
• Personal Injury- No definite rules
- Pain & Suffering... reasonable fairness as determined by Jurist
- Lost Earnings... specific proof- reasonably ascertainable
- Medical... specific proof- reasonable, necessary, & tied to injury
• Real Property- several measures
- Permanently Injured
- Difference in market value before & after, plus
- Special Damages proximately & naturally from injury
- Small portion, Repairable or Temporary
- Cost of restoration, plus - Loss of use
- Court adopted measure
- to facilitate determinable fairness to parties by jury
- Does this apply to Permanent and/or SRT ???
• Personal Property
- Permanent
- Difference in market value before & after
- Repairable to its functional use
- Cost or restoration, plus depreciation, and
- necessary expenses resulting from damage
• Contract Cases
- Actual Damages naturally resulting from breach
• Deceit, Fraud & Misrepresentation
- Bargain Rule ??? or Out-of-Pocket Rule ???
Jury Discretion as to Amount
• Subject to correction for clear abuse or arbitrary exercise
• Greatest weight in cases absent exact pecuniary estimate
- Pain & Suffering and Punitive Damages
• Not in disregard of evidence & must bear relation to loss suffered
• Not merely advisory...
- Finding of Fact not changed unless excessive or inadequate
• Test of excessive or inadequate damages
- verdict evinces such bias, passion or prejudice to shock
enlightened conscious, or contrary to credible evidence
• Judge may order new trial conditioned on nonacceptance of a
- Remittitur (lessening of jury verdict for being excessive)
- Additur (increase in jury verdict for being inadequate)
- Plaintiff has right to retrial as to damages only
Torts 5154-002
 Negligence Torts
Damages (continued)
Wrongful Death
• Only actionable where decedent could have maintained action
• Intent and purpose is to
- limit damages to defendant
- compensate those who suffered because of relationship
with decedent
• Two Independent Rights of Action
- Personal Injury of Decedent Prior to Death
- Damages Caused to Next of Kin
• No mathematical formula for damages
- Broad jury discretion may include
- Medical expenses
- Funeral expenses... Why, everyone eventually dies ???
- Pain & Suffering
- NOT allowed unless regained consciousness
- Special Relationship damages
- Loss of companionship and society
- Loss of support
- Loss of Services
- Would this include the net present value
of future sexual favors ??? just joking!!!
• Can not pyramid damages
- A damage included within a Net Cash Value of Life Expectancy
may not also be recovered as part of the beneficiary’s recovery.
- Is such dimishable based on defendant’s life style,
health & behavioral tendencies ???
Personal Injury
1. Medical, Hospital & Nursing & Related- Reasonable & Necessary
2. Nature, Extent & Permanence of Injury- Quality of Life
- loss of use or function of body part, irrespective of its
relation to other damages
3. Loss of Earnings- Past, Present & Future (must be pled)
4. Impairment of Earning Capacity
- impairment of one’s engagement in chosen vocation
- deprivation of the enjoyment of employment
Affirmative Defenses to Negligence Liability
Contributory Negligence and Comparative Fault
• Contributory Negligence
- Plaintiff’s failure to act with degree of care as a RPPSSC
- Extreme all or nothing recovery. If at fault, no recovery!
- Created due to mistrust of (P) minded juries and to limit
liability in newly developing industrial country
- Court should not assist (P) suffering from own fault
- Court’s desire for single / simple proximate cause
- Court punishment of (P) to encourage RPPSSC
• Comparative Negligence
- Argument against is approtionment of damages difficulty
- Pure: ≤ 99% fault.... recovery up to (D)’s percentage
- Modified Forms: (P)’s fault is relatively small
- Slight/Gross: (P)’s fault is slight v. (D) being gross
- Not As Great As: (P) ≤ 49%
- Not Greater Than: (P) ≤ 50%
• Last Clear Chance
- determination of proximate cause where (D) alleges (P) is
contributory at fault
1.a. (P) negligently subjected self to peril but could not avoid
such with reasonable care
b. (D) saw or should have seen peril of (P)
c. (D) had last clear chance to avoid harm to (P) but fails to
exercise reasonable care
2.a. (P) could have avoided harm with reasonable care
b. (D) realized or should have realized (P)’s inattention
c. (D) had last clear chance to avoid harm to (P) but fails to
exercise reasonable care
- Superfluous in Comparative Fault
- Developed to soften effect of Contributory Negligence
W. B. Newberry Jr. Fall 1999 - 11
5. Physical Pain & Suffering- Past, Present & Future
- for every form of distress which is a natural & direct result
- once established, compensable w/o specific monetary proof
6. Mental Pain, Anguish & Suffering- Past, Present & Future
- for every form of distress which is a natural & direct result
- once established, compensable w/o specific monetary proof
7. Disfigurement or Deformity
• Reform statutes generally prescribe maximums for specific injuries
• Amount Calculations
- Per Diem Rule
- Y dollars per day * Z days of Damage
- Maximum Recovery Rule
- Total of Maximum for each Element of Damage
- Permanent Damage Awards
- Discounted to Net Present Value (avoid unjust remedy)
- case by case method
- below-market discount method
- total-offset method
- Actuary Tables... only used in permanent injuries
• Mitigation of Damages
- Failure to reasoonable mitigate damages
- Duty to exercise reasonable care
- Risk of Treatment
- Probability of Success of Treatment
- Expenditure of Money or Effort
• Lay Witness
- as to Pain & Suffering personally endured
- incompetent as to testify as to Prognosis & Treatment
• Expert Testimony
- technical matter outside layman’s knowledge/experience
• Collateral Source Rule
- Problem of limiting injured to being made whole, versus
providing windfall to tortfeasor
- Earnings not to be mitigated or reduced regardless
of contractural arrangement or mere gratuities
Assumption of the Risk
• Express assumption of the Risk
- Invalid when transactions exhibit all or some of
- Generally suitable for public regulation
- Performance of Public Service of great importance
- Held out service as available to any member of public
- Party posseses decisive advantage of bargaining position
- Absence of provision for purchase of negl protection
- Property is under control & subject to risk of seller’s
carelessness
- Two Issues when (D) asserts Express Assumption in Contract
- Does contract include type of injury suffered
- If affected with public interest, it voids its application
• Implied Assumption of the Risk (IAoR)
1. Risk to (P) by (D)’s conduct or condition of property
2. (P) must have actual knowledge & appreciation of risk
3. (P) voluntarily choses or remains inarea of risk in
circumstance that manifests willingness to accept risk
- Similar to Consent in Intentional Torts
- Assumption of Risk rises regardless of Due Care
- Assumption of Risk is based primarily on Consent
- Contributory Negligence is not based on Consent
- Consent is manifested after being informed of risk
- (D) is relieved of duty otherwise in existence
- (P) if not fully informed of risk, need not anticipate
negligent conduct of (D)
- If not IAoR, may find Contributory Negligence (ContN)
- IAoR v. ContN, is IAoR is subjective of what (P) sees,
knows, understands or appreciates
Torts 5154-002
 Negligence Torts

Affirmative Defenses to Negligence Liability (continued)

• Denied Recovery for (P) when, Statute of Limitation
- Primarily Implied: • Shillady Rule (Malpractice)...
- (P) voluntarily accepts (D)’s lack of Duty and - Patient learns or should have learned of presence of
known risks (baseball park stray balls) foreign object in body or Effect of Pharmaceuticals
- Voluntary Encounter: • Accrues
- (P) voluntarily encounters known risk (continued 1. When Duty Breached
operation of defective rental equipment for benefit 2. When (P) suffers harm
deemed more value than known risk) 3. When (P) becomes aware of Injury
- Unreasonable Encountering: 4. Discovery of Causal relationship
- Amounts to (P)’s contributory Negligence • Primary Consideration is Fairness to Defendant
(inexpedient shortcut confornting known hazardous risks) - Loss of Evidence, memories, witnesses...
- Express Assumption of Risk • Discovery Rule...
• AoR v. Contributory Negligence - When (P) knows or should know casual connection
- (D) defense using AoR is bar against complete recovery - Equitable consideration of interests of opposing parties
- based on subjective factors of what (P) sees, knows, - Accrues when patient discovers or in reasonable deligence
understands or appreciates should discover injury and casual connection to defendant
- When AoR overlaps/coincides Contributory Negligence • Statutory in nature... Can not be altered by contract
- Contributory Negligence is applied Immunities (basis was King can do no Wrong)
Avoidable Consequences — Mitigation of Damages • Sovereign Immunity abolished
• Duty to exercise ordinary care to minimize damages • Common Law Immunity exists for legislatures, judges,
- Personal Injury government Officers & Officials
- Property or Chattels • Charital, Spousal Immunity abolished, Intrafamily (chilrden
suing parents) not abolished
• United States (See Note 3 Pg 367 & 368)
Comparative Comparative / Contributory Contributory Assumption Last Clear Mitigation Statutes of Immunities
of Risk Chance of Damages Limitations

Fault (D) ≥1% (D) < 100% (D) any% Sovereign,

(P) any % 1. When
Threshold (D) ≥ 50% (D) ≥ 51% (D) any % (D) any % Charital,
Breached
(P) Express Spousal
(D) Gross 2. Aware of
(D)’s Imlied Harm
Primarily Judges
Avoidance (P) ≤ 99% Voluntary (P) any % (P) any % 3. Aware of Politicians
Encounter (P) had last Injury Officers
(P)’s (P) ≤ 50% (P) had
(P) ≤ 49% Unreasonable clear chance Duty of Care 4. Discover Officials
Recovery (P) Slight (P) > 0% Encountering Misconduct IntraFam
Pure Not Greater Not As Great Slight / If Facts Overlap, Defence to Defence to Fairness to
Than As Gross Use Contributory Contributory Contributory Defendant

Imputed Negligence and Vicarious Liability

Vicarious Liability
• X innocent of fault, may be liable for conduct of Y, who
negligently injured Z.
- Based on Respondeat Superior
Respondeat Superior (a form of Joint & Several)
• Based on Servant representing a Master, only involked if
- ingaged in performance of service for Master
- acting within the scope of employment
• Scope of Master (Employment)
- Is outside of scope if servant acting for own purpose
- Must take into account
- extent & nature relative to time, place & circumstance
- intent & purpose of deviation
- merely returning to master’s business is insufficient
- must be back to point wherein departure occurred
• Dual Purpose Rule
- conduct although in part self serving, may be within scope
of employment if actuated by master
- stopping at store on business trip
• Driving to & from work is Out of Scope, except when driving
is ordinary part of business (door to door saleswoman)
• Presumption of Employment for Company Owned Cars
- May be rebutted by employeer, if successful,
- Employee must give facts beyond presumption to indicate
being within scope of employment
• Control Test
- Employee acted within implied authority, acquiescence or
subsequent ratification of employer
• Motivation to Serve Test... (Benefit of Employeer)
- Conduct is within Scope of Employment Only if,
- it is kind employeed or authorized to perform
- substantially within authorized time and space limits
- actuated in part by a purpose to serve master
- if force is used, it is not unexpected by master
- Relevant Considerations, but not determinitive
• Basis or Respondeat Superior
- desire to include within cost or enterprise the inevitable losses
to third parties incident to carrying on enterprise, thus
distributing the burden back to those benefiting by enterprise,
then on through to society in the form of higher prices.
• Employeer NOT liable for punitive or exemplary damages
resulting from employees willful or wanton act, unless,
employer’s conduct is also willfil, gross or wanton
• Employeer may seek contribution or indemnification from employee
Independent Contractors
• Subject to employer’s control as to result, not as to means used
• Independent Contractor or Employee
- Right to Control Test: need not actually control,
- simply have right to control (employee)
- Authority to Discharge:
- control over wage amount & payment of (employee)
• Employer NOT liable for Independent Contractor, unless
- negligent in hiring or supervising
- hiring for performance of a nondelegable duty
- Inherently or Intrinsically dangerous activity
- Collateral Negligence
- hiring for performance of illegal act

W. B. Newberry Jr. Fall 1999 - 12 Torts 5154-002

 Liability Without Fault
Common Law Strict Liability
• Category of cases not required to show intent or negligence
• Theoretical liability wothout fault as matter of public policy
• Not absolute liability, unless wild animal,
• (D) may escape liability if,
- no causal relationship exists
- (P) assumes the risk of harm
Animals
• Animals likely to wander and damage liable w/o proof of fault
- Not livestock being driven to market or Dogs & Cats
- Fenced in livestock, liable if animal breaks through
• Old English Law
- owner of nondomesticated or wild animals subject to
strict liability if animal attacked someone
- owner of domesticated animals subject to strict liability
only if knew of animals viscous propensities
- otherwise liable only if negligent or intent
- classification of animal depends on local custom
• Common Law liability
- Statutorily modified doing away with needing to prove
owner knew of viscous propensity
Abnormally Dangerous Activity ...
• Use Risk/Utility, Limited Duty (Outside Land) or Resp. Superior
• Applies only to Unnatural Use of Land
- Duty to take all reasonable precaution to keep within land
- Responsible for all natural consequences of its escape
- Limited to proof of negligence
- Not liable for escape due to latent defect not discoverable
with ordinary skill & prudence
- Be it Beasts, Water, Filth, orStenches
Substantative Torts
Products Liability
Negligence
• Early courts reluctant to apply Negligence Liability
- Preferred Special Circumstance Limited Duty Rule
requiring Privity
- Privity Rule Exception
- for inherently or immintently dangerous products
Breach of Warranty (UCC)
• Contained in Uniform Commercial Code
- Warranty section is a form of Strict Liability
- A sale of goods is typically required
• Problematic for combined Sale of Products and Services
- Pure Services are outside scope of Article 2
- Pure Product Sale is within Scope of Art 2
- Combination depends on predominant feature of transaction
• Unlike Strict Liability... does not require
- physical harm or property damage
- product be in unreasonably dangerous defective condition
• Typically caters to Economic losses, however
- allows recovery due to property damage or Personal Injury
• Implied Warranty of Merchantability
- seller is a merchant that reqularly deals in such products
• Implied Warranty of Fitness
- only if seller is aware of buyer’s particular needs, and
- buyer relys on sellers skill or judgement of suitable item
• Express Warranty
- seller communicated affirmation of fact as to quality
- seller’s intent to decieve or create warranty is irrelevant
- words such as Warranty or Guarantee are not necessary
- Decisive test
- Seller purports to state a fact in which the buyer is
fairly expected to relyor ordinarily rely upon
W. B. Newberry Jr. Fall 1999 - 13
• Intrinsically Dangerous
- Instrumentality capable of harm
- irrespective of lawful purpose or due care,
- circumstances & conditions involve risk of probable injury
- a casual relationship between activity & injury
• Restatement considerations
- High degree of Risk to person, land or chattels of others
- Likelihood that should harm occur it would be great
- Inability to eliminate Risk w/ exercise of reasonable care
- Extent activity is not a matter of common useage
- Inappropriatness of activity to the location
- Extent Utility (value) outweighs risk
• If danger reduced by use of care, there is no strict liability
- Negligence, not strict liability, if care exercised was
insufficient or careless
• If danger is not physical (financial), there is no strict liability
• If harm outside scope of danger, there is no strict liability
- (mink killing young due to blasting noise... no liability
as dead mink outside scope of hazard of blasting)
• Strict Liability is NOT absolute liability (unless wild animal)
- (D) is not liable for injury not within risk that makes
activity abnormally dangerous
• Assumption of Risk and Supervening is Defence to Str.Lia.
• Contributory Negligence is NOT a Defense to Strict Liability
unless Plaintiff Intentionally & Unreasonably exposed herself
to the abnormal danger
• Comparative Fault Principals Apply to Strict Liability
- Does this mean pure or modified forms
- Does Contributory kick in at some threshold % ????
- can set forth conditions on buyer to comply, else no liability
- notice & production of products for repair or exchange
• Privity Requirement options
- Purchaser, family & house guests
- Any Foreseeable (P) who suffers injury or property damage
- Any Foreseeable (P) regardless of type of injury
• Warranty Disclaimers are NOT automatically valid
- maybe unenforceable on contract principal of Unconscionability
- statutes that seller cannot disclaim implied warranty or
limit buyer’s relief
Misrepresentation (402B) (1st exc. to pure economic is contract rule)
• Seller of Chattels making Misrepresentation of a material fact
concerning character or quality of chattel is subject to liability
even though
- it is NOT made fraudently or negligently
- consumer has not bought or contracted with seller
Negligence, Warranty, Misrepresentation & Strict Liability
• Multiple Theories of Product Liability
• Application of which should be determined by asking
- What damages are recoverable under each theory?
- What defenses are available?
- Who may be a Plaintiff?
- Who may be a defendant? See Chart next Page
Strict Liability in Tort
• Warranty Disclaimers do not require notice be given in breach
of warranty arising independent of a contract of sale
- Implied or Express Warranty
- Not applicable absent privity ( mfg -> retailer --> buyer)
- manufacturer defect causing buyer injury
- Booby Traps for the unwary consumer not astute in legalities
• Proof of Express or Implied warranty required for Strict Ltability
Torts 5154-002
 Substantative Torts

Negl UCC Misrepresentation 402B Strict Liability 402A

Anyone Consumer Consumer, User,
Plaintiff or User Consumer or Foreseeable
Owed a Duty
“Innocent Bystanders”

Any New or Used

Manufacturer or Seller
Anyone Who Any Seller Any Seller
Defendant Breaches a Duty
NOT Public Services Entity
NOT Charitable Entities
NOT Doctors or Dentists
Economic, Economic,
Any Property, Property, TBA???
Damages Proximately Caused Personal Injury, Personal Injury, Personal Property
Consequential Consequential
Contributory, Superior,
Comparative, Last Clear Disclaimers, Misuse
Disclaimers,
Defences Assumption of Chance, Conditioned Proceedings Conditioned Proceedings Not Foreseeable Bystander
Risk, Mitigation of Open & Obvious
Respondeat Damages

Products Liability Continued

• Product Defects causing harm are not governed by law of
contract warranties, but by strict liability
• Restatement 402A Strict Liability in Product Related Injury
1. One who sells product in defective unreasonably dangerous
condition that causes harm, is liable if
a. seller is engaged in business of selling such product
b. product expected to reach user w/o significant modification
2. Rule 1 applies although,
a. seller exercised all possible care in preparation & sale
b. user has not bought the product from or entered in to
contractural relationship with seller
• What Makes a Product Defective
- Restatement 402A, Comment (g) “Defective Condition”
- Must be dangerous to an extent beyond that contemplated
by ordinary consumer, with ordinary knowledge common
to community as to its characteristics
- Consumer Expectation Test (402A) rooted in Contract Law
- requires that harm & liability flow from product
characteristics that frustrate consumer
- Exclusion of patently obvious hazards from inclusion in
402A has been criticized
- In such cases, requisite is to prove that such defect was
not within the ordinary knowledge of common users
- Industry Custom is relevant
- Worker’s ignorance of such is not letigous back to
manufacturer, however may be negligence of
employeer not properly training
- Problem with 402A is that it injects Foreseeability &
Unreasonableness standards of Negligence into
Strict Liability
- Some courts have removed “unreasonable” from the
term “unreasonable defect” as it places an improper
additional Burden of Proof on Plaintiff
- Product Defect Categories (MM) (MD) (FW)
- Mismanufacturer (MM):
- product does not conform to Mfg’s specificaton
- Misdesign (MD):
- designed product is unreasonably dangerous
- Failure to Warn (FW):
- failure to provide instruction or warning caused
product to be unreasonably dangerous
- Strict Liability of Products Liability cases
- focal point is condition or character of product
- not character of defendant’s conduct
- thereby excising concept of reasonable care
from strict liability
- although focus is on product rather than (D)’s conduct
- Strict liability is NOT Absolute Laibility
- Safety is Core Concern of Strict Liability
- Unreasonable Risk is Primary Inquiry into Design Defect
- NOT Unreasonable Care as in Negligence
- Heart & Soul of Strict Liability Design Defect is
- Unreasonable Danger and Causation
- Causation Principals (Legal Cause) the C-N-F of an
injury need only be Substantial Factor
- Interveening Superceeding (Superevening) cause
analysis may also be appropriate
- Risk/Utility Test for Defective Product Analysis (considerations)
1. Usefulness & Desirability of Product (Utility)
2. Availability of Substitute Product (Safer Product)
3. Likelihood of Injury & Probable Seriousness
4. Anticipated Awareness (Obviousness) of Danger
5. Common Knowledge (Expectation of danger)
6. Avoidability of Injury by Care in Use (Instr/Warnings)
7. Minimization of danger w/o affecting usefulness & cost
8. Feasibility of spreading cost through pricing or insurance
- Some courts use combination of Contemplation &
Risk/Utility Test
- Allocation of Risk
- Manufacturers, Distributors & Others in stream of
Production and Marketing Commerce
- Prima Facie case requirement for MM, MD, & FW
- Need NOT prove Negligence by Manufacturer
1. Product was Defective
2. Defective at time left Defendant
3. Defect caused Injury to Reasonably Foreseeable User
4. FW only ... must prove constructive knowledge by (D)
- Proving Defect distinguishes strict from absolute liability
MM MD FW Elements
X X X 1. Product was Defective
x x x a. Consumer Contemplation
x x x b. Risk/Utility
x x x c. Risk/Utility & knowledge of defect
x x d. Stream of Commerce
x e. Failure to Worn
X X X 2. At time left Defendant
X X X 3. Injury to Foreseeable User/Bystander
X 4. Failure to Warn

W. B. Newberry Jr. Fall 1999 - 14 Torts 5154-002

 Substantative Torts
Products Liability Continued
- Fundamental Duty
- Warn Foreseeable Users
- Not place Defective Product on Market
- Breach
- May occur even if carefully produced
- Defect Analysis: Comparison of product to a standard
- Manufacturing Defect
- Measured to manufacturer’s standards or other
units similarly produced
- Design Defect / Failure to Warn:
- Due to any feature of its design, including
absence or inadequacy of warnings
- Manufactured as intended, it can not be
compared to manufacturer’s standards
- Policy judgement that some products are so
dangerous their risk outweighs usefullness
- Risk / Utility Test... when it works under one
condition, but is dangerous in another
(See factors on previous page)
- State of the Art at time of creation
risk, and
- Reasonableness of manufacturer’s
placing product on Market
- Risks known or should’ve known
- Adequacy of Warnings
utility
- need for product
- alternatives
- Is not an absolute defense for (D)
- (P) has BoP, (D) must prove compliance
- if State of the Art, not necessarily
judgement for (D)
- Industry Custom, however typically lags
state of the art & is only relative
- Consumer Expectation (Contemplation) Test...
failure of the product to perform safely is a
violation of consumer expectation
- Evidence of State of the Art
- Used by (P) or (D)
- technological ability at time of mfg or mktg
- Relevance
1. Whether defect should have been known
- Industrial knowledge at time, or
- Imputed knowledge of danger on mfg
2. Whether alternative design existed
- Most courts require proof of Alt.
- Prescription Drugs
- Generally SL applies to manufacturers of drugs
- Service Providers
- In view of the status of provider,
public policy may dictate SL may not apply
- Cases of General Welfare, public policy justifies
want of due care (negligence) rather than SL
- NonProfit Health Care Institutions- No SL
- Dentist (defective needle broke)- No SL
- Hairdresser (Contact Dermatitis)- Yes SL
- Hospital (wrong blood type)- No SL
- County Blood Bank (Blood w/ Viral
Hepatitis- No SL for CBB or Hospital
- Drug Manufacturers do NOT render Professional
Services of a nature similar to Doctors & Dentists
- Drug Manufacturers are NOT non-profit or charitable
- Drug Manufacturers are Profit-Making Enterprises
- Unavoidably Unsafe Product (Drugs) (Rest.Com.k)
W. B. Newberry Jr. Fall 1999 - 15
- Some Vaccines & other Experimental Drugs
- Utility outweighs risk, provided
- properly prepared, marketed and labeled
- Immunity due to Restatement Comment K
- is no excuse to inadequately label
- Failure to Warn Strict Liability
- Similar to improper design
- Duty to produce & distribute product reasonably fit,
suitable and safe
- Focus is Safety not mfg’s conduct
- In SL, Mfg assumed to know dangers
- Whereas in Negl, (P) must prove (D)
knew or should have known
- (D)’s conduct is relevant as to whether actions
were reasonably prudent, given knowledge, to
adequately warn
- Once (D)’s knowledge is imputed, SL
and Negl analysis are almost identical
- Mfg held to standard of an expert in the field
- In SL, unlike Negl, (D) has BoP that info
was not reasonably available or obtainable,
therefore lacked actual or constructive knowledge
- Some jurisdictions require (P)’s BoP as to
knowledge of (D)
- (D)’s need to comply with Fed Reg is not a
complete defense unless legislation so allows
- Common Knowledge / Failure to Warn
- 402A, comment (i) Unreasonable Dangerous
- Many products can NOT possibly be
made entirely safe
- Danger must be to extent beyond that
comprehended by consumer w/ ordinary
common knowledgein the community
- Mfg or Seller NOT liable where product is
inherently dangerous and consumer is aware
- Mfg or Seller NOT liable for Open & Obvious
Dangers in the product
• Limitations on Recovery
- Foreseeable victims of defective product
- Test to determine Existence of Tort or Contract Claim
- Strict Liability based on Cost Shifting Rationale
and Social Goal of Product Safety
- Prophylactic Factor
- Compensate Victim and
- Admonition of Wrongdoer
- Contract Law based on preserving freedom to
contract and promote free flow of commerce
- Defect renders substandard or disfunctional product
- Redress for loss of benefit
- Factors to determine... nature of defect, manner in
which loss occurred, & type of loss or damage
- Nature of the Defect
- SL... liable for defective product unreasonably
dangerous to consumer or property...
- BoP as to defect
- Negl... liable if they knowingly provide
product that is dangerous...
- BoP as to knowledge
- UCC... liable if product is unfit for the
intended purpose,
- No BoP as to unreasonable danger
- If potential for danger is absent, tort is inapplicable
- If quality is only concern, UCC is only remedy
Torts 5154-002
 Substantative Torts
Products Liability Continued
- Manner in Which the Loss Occurred
- Tort... Sudden accident type cause
- may also include non-sudden accidental
or slow deterioration types involving fire
violence, smoke, vapors...
- UCC... Non-accidental nature, absent
- fire, violence, collision of objects...
- Type of Loss or Damage
- Tort... harm to persons & property,
- inclusive of personal or property damage
- also inclusive of economic losses such as
lost profits, down-time, repair costs...
- UCC... Harm to product only,
- inclusive of economic losses such as lost
profits, down-time, repair costs...
- not inclusive of personal or property
damage
- All Factors must be determined... nature of defect,
manner in which loss occurred, & type of loss or
damage
- Strict Liability & ExtraOrdinary Consumer
- Some costomers are capable of absorbing their
Liability independent of the public policy of tort law
- Public Policy of tort law was to spread the Risk
and Cost to those most able to absorb the loss
- Public Policy of tort law is also to encourage safety
- Just because a consumer is not just an ordinary
consumer, there is insufficient justification to relieve
liability given the Public Policy of Safety
- Can Liability in Tort be Bargained Away
- Difference between Disclaimer of Warranty liability
and attempts to disclaim liability in tort
- Under 402A, Strict Liability, (P)s rights are not
governed by UCC or affected by any disclaimer or
other agreement
- Disclaimers of tort liability are per se unenforceable
- A Disclaimer as to limitation of Warranty can still be
effective independent of a liability under tort
- Liability for torts arise from law, not contracts
- Tort liability may be waived, although disclaimers
are not recognized
- Waivers require intentional relinquishment, freely &
fairly made, not forced by the circumstance
- Not enforceable due to coercion or inadvertance
W. B. Newberry Jr. Fall 1999 - 16
- Used Goods Dealer
- Enterprise Liability is primary factor to hold
Used Goods Dealers liable
- Other factors may include
- Implied representation of Safety
- Risk Reduction
- Compensation
- Buyer of used goods expects less quality &
durability, they typically expect NO less Safety
- Used dealers are in chain of commerce and
expected to perform in accord with 402A same
Majority as any other manufacturer or distributor
View - Some states refuse to apply SL on used goods,
unless dealer reconditioned or remanufactured
- Purchaser of real-property can NOT assert SL
against a builder (presumably of old construct)
- SL may apply to lessors
- SL does NOT apply to
- physicians or dentists where a product
they use causes injury
- Pure service transactions, exc sale of food
• Defenses
- Restatement 402A, comment (h)
- A product is not in a defective condition when it is
safe for normal handling and consumption
- If an injury results from mishandling, the seller is
NOT liable
- Misuse of a product that causes an injury
is normally a bar to strict liability,
- The manufacturer is not liable for injuries resulting
from abnormal or unintended use of his product, if
such use was NOT reasonably foreseeable.
- Misuse MAY BE foreseeable
- Even Negligence MAY BE foreseeable
- Comparative Fault applies to Strict Liability
- Assumption of the Risk is a complete bar to Strict
Liability
- Does this mean a waiver ???
- Is this related to situations like open & obvious
dangers as with invitees on property ???
- Is this related to situations like open & obvious
dangers as with crane boom injury on pg 410 ???
Torts 5154-002
 • Do Not use Pencils or Multicolored pens • Do Not scratch out deleted text • Use blue or black Pen

• Rational (Analysis):
• Interweaving of facts with rule of law

• IRAC (D)

I Issue: Is there a (what is the) tort (battery)?

• Watch for Black Letter Laws and sub-Issues before you to proceed with the rules
- Age does not matter...
- Insanity does matter, even the insane are responsible for their torts just the
same as they are for their own care, provided they have an estate that is
financially responsible for their care.

R Rule: The tort (a battery) is the intentional:

Element 1 Intent, and

- purpose of causing X or
- substantial certainty X would happen
Element 2 Harmful or Offensive, and
Element 3 Contact
- directly to person or
- to something so closely held as to be considered part of person

A Analyze: Discussion of each Fact related to each Element

C Conclusion: Conclusion is does not matter

Importance is the identification of the tort,

the elements of the rule,
and the analysis of the facts interwoven with the rule’s elements.

• EXAM Info:
• A series of facts
• Identify the torts in same sequence as the fact pattern
• If a tort repeats in a subsequent fact pattern, combine the fact patterns under the first occurrence of the tort,
and make a complete analysis of all the facts interwoven to the specific tort.
• Repeating torts or rules is a fundamental flaw
• If you reach an early conclusion, that is, if the facts demonstrate the tort to not apply, take the “however”
approach and discuss as if it does apply
• Upon concluding the original position related to the torts at issue, discuss any related defense that may be
taken to negate the tort.

Fact 1 Battery Battery Apply each fact Pattern to the rule elements
Fact 2 Battery
Fact 3 Assault Assault
Fact 4 Assault
Fact 5 Battery
Fact 5 Trespass Trespass
Fact 6 False Imprisonment False Imprisonment

• Discuss similar Torts as evidence of known similarities, to rule out less preferable tort choice, and gain brownie
points.
- Assault ~ Battery
- Trespass of Property ~ Self Defense
- Trespass to Chattel ~ Conversion

W. B. Newberry Jr. Fall 1999 - 17 Torts 5154-002

 Intentional Tort Summary

Assault Defense of Property (Privilege to Land or Chattel)

1. Intent (Purpose of Causing or Substantial Certainty) 1. Intrusion (not privileged or causes belief it is not privileged)
2. Imminent Apprehension 2. Belief invasion can be stopped by force used
3. Apparent Ability 3. Request to desist a) disregarded, b) will be useless, or
c) substantial harm will occurr before request can be made
Battery
Recapture of Property (Privilege)
1. Intent (Purpose of Causing or Substantial Certainty)
2. Harmful or Offensive Citizens Arrest
3. Contact 1. Detainee committed a felony or
2. Reasonable belief suspect committed felony
False Imprisonment 3. Commits a breach of the peace or may renew such
1. Intentional Detention (Purpose/Substantial Certainty) 4. Attempted felony & arrest immediate / fresh pursuit
2. W/O Legal Justification 5. Other causes actor to believe privlege to arrest
3. W/O Consent Shopkeepers (Restatement)
4. Caused by Violence, Threats, etc... 1. Reasonable belief another has taken a chattel or
5. Restrained Movement from Place to Place 2. another has failed to make cash payment for
chattel or service rendered,
Emotional Distress 3. privileged to, without arrest, detain on the premises
1. Intent or Reckless for time necessary for reasonable investigation.
- Purpose of Causing, Substantial Certainty, Reckless Indifference
2. Extreme & Outrageous Necessity (Privilege)
- Outrage essential -Not so if Self Caused / Deserved
3. Causes Emotional Distress (Anguish & Anxiety) Public Necessity Privilege (Individual)
1. One is privileged to enter the land of another
4. Causal Connection Between Act & Outcome - if it is, or actor reasonably believes it to be,
Trespass to Land 2. necessary for averting an imminent disaster
1. Intentionally (Purpose of Causing or Substantial Certainty) Eminent Domain (Individual) (Destruction from Necessity)
2. Enter, or 1. Individual may lawfully
- enter another’s land and destroy his property
3. Cause Thing or Other to enter, or 2. with reasonable judgement
4. Remain on Land, or 3. when immediate action is required to
5. Fail to Remove - save life or avert an overwhelming destruction of property
Self Defense (Privilege) Eminent Domain (Public Agent)
• Rights to compensation same if by an individual.
1. Honest Reasonable Belief • Permanent appropriation w/o comp. not justifiable
2. Reasonable Prudent Force • Cases of emergency rather than necessity requires comp.
- emergency not defined as eminent calamity
Trespass to Chattel • Necessity, extreme, imperative, or overwhelming
- mere expediency, public good, or utility will NOT suffice
1. Intentionally (Purpose of Causing or Substantial Certainty) • Public Necessity is a complete defense to an intrusion
2. Dispossesses • Public Necessity is NOT a defense for an invasion & may be liable
- No Impairment Required - Damages for loss of Possession Privilege to enter or remain on land of another if it
3. Impairs (Damage Proof Required) 1. reasonably appears to be necessary to prevent
4. Deprives (Damage Proof Required) - serious harm to the actor, his land or chattels or
5. Harms bodily or Interest (Damage Proof Required) - to another or a 3rd person, or the land or chattels of either
2. unless, actor
Conversion - has reason to know that one whose benefit the action is
taken is not agreeable to such action
1. Intentionally (Need not be of conscious wrong doing)
3. if for benefit of actor or 3rd person, the actor is liable
2. Dispossesses another of
for any legally protected interest of another
3. Destroys or Alters - unless harm averted is cause of anothers tortious conduct
4. Uses or Exceeded Useage • A possessor of property is a tortfeasor if he resists or repels
5. Disposes one acting out of necessity
6. Misdelivers Recover a chattel
7. Refuses to Surrender (Requires Return Request) 1. Actor has an immediate right to possess
2. on land of another for reasonable time and manner
Consent (Privilege unless) 3. chattel on other’s property other than with actor’s
1. Lacks capacity to give consent - consent, tortious conduct, or contributory negligence
2. Coerced • Actor is liable except if chattel is there by conduct of possessor
3. Mistaken about nature or quality of invasion intended
4. Conduct of a kind no one would consent

W. B. Newberry Jr. Fall 1999 - 18 Torts 5154-002

 Negligence Tort Canned & Substantative Answer

1) Circle Plaintiffs.... 2) Square Defendants (Avoid phantom Defendants) 3) Identify each Defendant’s Wrongful Act 4) Identify
Legal Issues 5) Cross out Defendants w/o Legal Issue 6) Develop “Attorney Informing Client” Frame of Mind

I I-1 Potential Tort Actions...

A. Intentional... Purpose of Causing or Substantial Certainty... almost Criminal
B. Strict Liability... Liability w/o Fault as matter of Public Policy... Animals (wild are absolute), Abnormally Dangerous Activity (Unatural
Use of Land) and Product Liability (Proof of Defect- Mismanufacturer, Misdesign, Failure to Warn)
C. Negligence... Concerned with the weighing of Unreasonable Risk to the Circumstances, the Scope of Risk, and the Public Policy Precept
of the Law to establish a relationship and responsibility for the (P) onto the (D).
I-2 Wrongful Acts compared to Legal Actions... Choose Negligence
I-3 Frame Tortfeasors (Multiple, Enterprise, Joint & Several, Respondeat Superior, Independent Contractors)

R R-1

R-2
Prima Facie Case Requirements (Elements required to establish cause of action)... Duty (A Public Policy precept to Legally impose a
Responsibility for another), Breach (Failure to provide Standard of Care owed to another), Legal Cause (Causation and Scope of
Liability for Injury to another), & Injury (Damages caused by failure to fulfill Duty to another)
Duty... The two aspects are, Is a Duty Owed? & What is the Duty?
A. Is a Duty Owed- Tests, any of which would return same result, to determine if the law is justified at imposing a duty on (D) for the (P)
1. Risk/Utility?- Commercial Issues imposing a Duty when the Magnitude (Scope) of Risk is greater than the Value (Utility) of
Conduct, &/or failure to use a Less Risky Alternative
2. Carrol Towing- Maritime Issues imposing a Duty when the Burden of Care is less than Probability of Substantial Injury
times the Magnitude of Injury (B<PI)
3. Common Law- John & Jane Doe Issues imposing a Duty when the Foreseeability of Unreasonable Risk is great enough that a
RPPSSC would take other precautions
B. What is the Duty?- What would a Reasonably Prudent Person in the Same or Similar Circumstance do?
1. RPPSSC- A ficticious entity that knows all and never forgets the community’s customs and norms
2. RPP... Person may be of a special class... Children (age, exper, intell... unless inherently dangerous or adult activity) and
Professionals (Doctors, Engineers, Lawyers...)
3. SSC... Circumstance may be special... Physical Handicap and Emergency
4. Intoxication or Insanity are not considered as either a special class of person or circumstance
Ω Limited Liability- Public Policy Doctrine of imposed Duty, in issues wherein although one would not normally be
responsible, one has through an affirmitive act (express or implied induced reliance) of gratuitous promise, an
undertaking or holding out, committed a responsibility to another
- Failure to Assist, Negl. Infliction of ED, Fetus (Injury/Wrongful Life), Land Owner / Occupier (Invitee, Licensee, TresPass, Leesee Guest & Person’s Outside)
Ω Statute- Statutorily imposed Duty to a protected Class for the Purpose & Intent to Prevent a specific Harm. If applied, the judge may by
law instruct the jury that they per se (Must), by Rebuttable Presumption (May & Should), or by an Inference (Can) find
Breach and that the (D) is guilty of negligence
Ω res ipsa Liquitor (the act speaks for itself)- A special application of Duty where the specific Cause of the injury is unknown or uncertain
to the (P), and (D) is most able to determine such. If applied, the judge may by law instruct the jury that they by BoP (Must), by
Rebuttable Presumption (May/Should), or by Inference (Can) find that the (D) is guilty of negligence and provide Breach, Legal
Cause, and Injury, for extradorinary, unusual or strange circumstances.
1. Injury Not Ordinary w/o Negligence
2. Within Scope of Control of (D) at time of Negl (not at time of injury), other possible causes are excluded, and likelihood is that
(D) is > 50:50 responsible
3. Within Scope of Knowledge of expertise of (D)
R-3 Breach- A question of fact for the jury... What a RPP would do in the SSC compared to the action of the (D)
R-4 Legal Cause- Determination that the Defendant’s action is the Cause-in-Fact and Proximate Cause of the Plaintiff’s Injury
A. Cause in Fact- Tests to validate the Causal link between the act & injury.
1. But-forTest- Used for single causes of injury
2. Substantial Factors Test- Used for Single or Concurrent Causes (independent & adequate causes). Established to
avoid exoneration of multiple (D)s in single cause injury.
* Joint & Several (concurrent causes w/ concert of action or indivisibility of harm)
* Interveening & Intervening Superceding (independent, adequate & not foreseeable... God/Nature)
B. Proximate Cause- Public Policy precept to limit liability to causes (risks) which are a foreseeable of the duty owed
* Unforeseeability of (P)’s preexisting but latent conditions are not a bar to PC. (Eggshell rule: (P) is as found, exc. in ED)
R-5 Injury- The fundamental purpose of Damages is to compensate the injured & make them whole as before the injury
* Nominal (not in Negl) * Compensatory (Actual, not w/ Nominal, General or Special) * Punitive (Malice, gross, willful)
* Jury Discretion (Excessive/Inadequate ~ Remittur/Additur, (P) has right to retrial as to damages) * Wrongful Death (Kin)
* Personal Injury (Meds, Nature/Extent/Permancy, Lost Earnings, Imparied Earnings, Phys Pain/Suffering, Ment P&S, Disfig)
* Actuary Tables (Perm) * Expert Testimony * Collateral Sources
R-6 Defenses-
* Contributory (complete bar) * Contributory/Comparative (SG/≤49%/≤50% Threshold) * Comparative (% recovery)
* (D) had Last Clear Chance * Mitigation of Damages * Statute of Limitation * Immunities (not Char/Spou/Soverign)
* Assumption of Risk- Implied or Express (n/a if Public Service)... AoR n/a if Primarily Implied/baseball park,
AoR n/a if Voluntary Encounter/wet floor, & AoR n/a if Unreasonable Encounte (inexpedient shortcut)

A A-1
A-2
A-3
Gather Tortfeasors (multiple, enterprise, joint & several)
Specify Causes of Action
Detailed Elemental Analysis (Discuss application of each element to all defendant actions concurrently)
* Duty (does it exist and what is it) * Breach (how determined... watch for res ipsa & statutory standards)
* Legal Cause... CNF (Single v. Concurrent, Intervening, Joint & several) & PC (Foreseeability, eggshell, but not ED)
A-4 Injury Recovery (Discuss types of recovery, limitations, proof, exceptions
A-5 Defences relative to facts and issues that Defendant may use should be discussed

C C-1 Conclude- While some facts are determinative by law, reasonable minds may differ as to the interpretation of facts. When the facts are
open for interpretation, the facts must be submitted to a Jury. If this case involved a Violation of Statutes or res ipsa, the Judge may,
depending on the type of cause or nature of the injury, instruct the Jury that they Must, May & Should, or Can find negligence.

W. B. Newberry Jr. Fall 1999 - 19 Torts 5154-002

 Negligence Action FlowChart Summary
Duty Does Duty Exist? Limited Duty Special Relationships
Failure to Assist Land Owners/Occupiers

uty) to (P s
)’
Public Policy Doctrine

)
respons ce based on (D

What is Duty?
gratuitous promise, Invitees, Licensees,
undertaking, or holding-out Tresspassers,
Risk / Utility Leesees and Guests,
Negl Infliction of ED
Scope / Value-Alternate

ibility (d
Fetus Injury/Wrongful Life or Persons Outside
Common Law
Does Duty Exist?
n
ircumsta
Foreseeability of

What is Duty?
Unreasonable Risk
Carrol Towing
fy the la g of Risk & C
blish a

B < PI
Ficticious, knows all customs, circumstances, never forgets
w to esta

RPPSSC Children Exception

Physical Handicap

What is Duty?
in

Is Duty Breached? age/exper/intell or

Sudden Emergency
s situati ed with weigh

adult/inherently
Duty is Breached RPPSSC dangerous activity
Not Insanity
Not Intoxication
is held

Professionals
on justi

res ipsa (Speaks for itself)

rn

person

Cause not known, (P) at Severe

tanding cy view conce

Disadvantage, Smoking Out

Is Duty
h every

Not Ordinarily w/o Negl.

Breached?
and doe

Scope of Control Burden of Proof Must

How Odd is
for whic

elim other causes, >50:50 extrordinary

oli

at time of negl not injury Result?

Public P

Rebuttable Presumption May & Should

Scope of Knowledge unusual
of Care

Inference Can
Duty is Breached
r risk, s

strange
Standard
scope o

Is Duty
Does Duty Exist? Statute Violation Breached? per se Must
Purpose / Intent
What is Duty? auto maint.
Class Protected May & Should
Rebuttable Presumption
Harm Prevented
public health
Duty is Breached Inference Can
Breach auto accident

Legal Cause
Who Caused?- Identification Issues
(C-N-F & PC) (Also discuss in Duty in respect to Who are the Defendants)
Cause
in Fact but-for Multiple Defendants Enterprise Liability
One C-N-F... Equal liab. small industry
but for act, no injury
What caused? Comparative Negl. joint knowledge of risk
(Causation NOT concurrent causes (P) and (D) share liab. risk delegated to trade assoc
between act
Legal Cause

& injury) Substantial Factor BoP shifts to (D)s

single/concurrent causes D1 Alternative Liability
independent adequate causes P produced, mfg, sold or resp
Proximate NOT all (D)s
D2
innocent (D) may pay
Cause guilty party may be missing
Joint & Several
(liability)
Foreseeability Concurrent Causes w/ BoP shifts to (D)s
Legal Cause Market Share Liability
(public policy Is cause (risk) foreseeable? Concert of Action or
(C-N-F & PC)
precept) Egg Shell Rule, (P) is as found Indivisibility of Harm join (D)s of substantial share
(typically n/a to ED Intervening Superceeding apportionment by Market
independent, adequate & BoP shifts to (D)s
court decided) Share Alt. Liab.
not foreseeable
(God, nature) Identify only 1 (D)
(D) may bring other (D)s
Damages equal liab., else MS proof
Compensatory (Actual) Damages Measure of Damage BoP shifts to (D)s
Remote or Speculative Personal Injury, Real & Personal Risk Contribution
Nominal Damages Property, Contract Cases, Deceit, Identify only 1 (D)
Injury Intentional not Negl. Torts Fraud & Misrepresentation
Damages? (D) may bring other (D)s
(damages) Aggravated, Vindictive, Jury Discretion liab. by comp. liab. statute
(Mathematical Exemplary or Punitive Damages Wrongful Death BoP shifts to (D)s
Exactitude) not w/o actual damages Personal Injury & Next of Kin Respondeat Superior
not ordinary breach, contract or Personal Injury
simple tort

W. B. Newberry Jr. Fall 1999 - 20 Torts 5154-002

 Flash Cards

Assault
Emotional Distress
(See also Self Defense)
(May also be Privilege as Self Defense)

1. Intent or Reckless
- Purpose of Causing, Substantial Certainty, Reckless Indifference
1. Intent (Purpose of Causing or Substantial Certainty) 2. Extreme & Outrageous
2. Imminent Apprehension - Outrage essential - Not so if Self Caused / Deserved
3. Apparent Ability 3. Causes Emotional Distress (Anguish & Anxiety)
4. Causal Connection Between Act & Outcome

(Doctrine of Transferred Intent is NOT Applicable)

Battery Trespass to Land

(See also Self Defense) (See also Defense of Property)
(May also be Privilege as Self Defense)

1. Intentionally (Purpose of Causing or Substantial Certainty)

1. Intent (Purpose of Causing or Substantial Certainty) 2. Enter, or
2. Harmful or Offensive 3. Cause Thing or Other to enter, or
3. Contact 4. Remain on Land, or
5. Fail to Remove

Self Defense
False Imprisonment
(Privilege to Assault, Battery,
(See also Self Defense)
False Imprisonment & False Arrest)
(May also be Privilege as Self Defense)

1. Intentional Detention (Purpose/Substantial Certainty)

2. W/O Legal Justification
1. Honest Reasonable Belief
3. W/O Consent
4. Caused by Violence, Threats, etc... 2. Reasonable Prudent Force
5. Restrained Movement from Place to Place

W. B. Newberry Jr. Fall 1999 - 21 Torts 5154-002

 Flash Cards

Trespass to Chattel
Defense of Property
(See also Conversion)
(Privilege to Trespass to Land or Chattel)
(See also Defense of Property)

1. Intentionally (Purpose of Causing or Substantial Certainty) 1. Intrusion (not privileged or causes belief it is not privileged)
2. Dispossesses 2. Belief invasion can be stopped by force used
- No Impairment Required - Damages for loss of Possession 3. Request to desist
3. Impairs (Damage Proof Required) a) disregarded
4. Deprives (Damage Proof Required) b) will be useless, or
5. Harms bodily or Interest (Damage Proof Required) c) substantial harm will occurr before request can be made

Conversion Recapture of Property (Privilege)

Citizens Arrest
(See also Trespass to Chattel)
(See also Defense of Property) Shopkeepers (Restatement)

1. Intentionally (Need not be of conscious wrong doing) Citizens Arrest

2. Dispossesses another of 1. Detainee committed a felony or
3. Destroys or Alters 2. Reasonable belief suspect committed felony
4. Uses or Exceeded Useage 3. Commits a breach of the peace or may renew such
5. Disposes 4. Attempted felony & arrest immediate / fresh pursuit
6. Misdelivers 5. Other causes actor to believe privlege to arrest
7. Refuses to Surrender (Requires Return Request)

Shopkeepers (Restatement)
1. Reasonable belief another has taken a chattel or
Consent 2. another has failed to make cash payment for
chattel or service rendered,
(Privilege unless) 3. privileged to, without arrest, detain on the premises
for time necessary for reasonable investigation.

1. Lacks capacity to give consent

2. Coerced
3. Mistaken about nature or quality of invasion intended
4. Conduct of a kind no one would consent

W. B. Newberry Jr. Fall 1999 - 22 Torts 5154-002


Necessity (Privilege)
Public Necessity Privilege (Individual)
Eminent Domain (Individual) (Destruction from Necessity)
Eminent Domain (Public Agent)
Privilege to enter or remain on land of another if it
Recover a chattel
Public Necessity Privilege (Individual)
1. One is privileged to enter the land of another
- if it is, or actor reasonably believes it to be,
2. necessary for averting an imminent disaster
Eminent Domain (Individual) (Destruction from Necessity)
1. Individual may lawfully
- enter another’s land and destroy his property
2. with reasonable judgement
3. when immediate action is required to
- save life or avert an overwhelming destruction of property
Eminent Domain (Public Agent)
• Rights to compensation same if by an individual.
• Permanent appropriation w/o comp. not justifiable
• Cases of emergency rather than necessity requires comp.
- emergency not defined as eminent calamity
• Necessity, extreme, imperative, or overwhelming
- mere expediency, public good, or utility will NOT suffice
• Public Necessity is a complete defense to an intrusion
• Public Necessity is NOT a defense for an invasion & may be liable
Privilege to enter or remain on land of another if it
1. reasonably appears to be necessary to prevent
- serious harm to the actor, his land or chattels or
- to another or a 3rd person, or the land or chattels of either
2. unless, actor
- has reason to know that one whose benefit the action is
taken is not agreeable to such action
3. if for benefit of actor or 3rd person, the actor is liable
for any legally protected interest of another
- unless harm averted is cause of anothers tortious conduct
• A possessor of property is a tortfeasor if he resists or repels
one acting out of necessity
Recover a chattel
1. Actor has an immediate right to possess
2. on land of another for reasonable time and manner
3. chattel on other’s property other than with actor’s
- consent, tortious conduct, or contributory negligence
• Actor is liable except if chattel is there by conduct of possessor
RPPSSC
Reasonable person standard
Physical handicaps (blindness, physical deformities, etc)
Non-physical handicaps (nervousness)
Intoxication
Insanity
Exception
Sudden emergency doctrine:
Professionals
Reasonable person standard
• Community ideal of reasonable behavior
• Ficticious, knows all customs, circumstances,
never forgets
Physical handicaps (blindness, physical deformities, etc)
• Treated like any other attendant circumstance.
• Deaf people held to standard of reasonable deaf person.
Non-physical handicaps (nervousness) not factor in RPPSSC.
Insanity
• Not an attendant circumstance. Insane people held to RPPSSC.
- but if you have foreknowledge, you may be held liable.
Exception
• when mental or physical impairment happens suddenly and
without forewarning. (Heart attack, stroke, anurism, etc…)
Intoxication
• Drunk is not a defense. Regarded as a circumstance.
• Making self functionally deaf, blind, etc. treated like
intoxication... you brought it on yourself.
Sudden emergency doctrine:
• Caused by a natural force or innocent or wrongful act of 3rd person
requires rapid decision, no time to consider alternative or consequence
- Duty does NOT apply where the actor
- had a duty to anticipate an emergency or
- the actor caused the emergency
- Not a defense to negligence or an exception to the
RPPSCC, but rather a factor of the circumstance
Children
• Childlike activities treated like any other attendant circumstance.
• Typically viewed by age, experience and intelligence
• Adult or inherently dangerous activities
- Standard of the reasonable adult.
Professionals
• Special knowledge treated like other attendant circumstance
• based on skills and knowledge of particular profession
- in similar locality
- at the time of service
• Basis is of RPPSSC for particular profession
- RPSSSC… Superman held to reasonable Superman standard.
 Medical
Medical Malpractice
Legal
Standard of Care
Legal Malpractice, the plaintiff must prove
(What is Duty) (Community Standard) (National Standard )
Duty to 3rd Party
Modern Informed Consent
Malpractice- Lack of Informed Consent (must allege & prove)

Medical Malpractice Legal Malpractice, plaintiff must prove

1. Presumed to possess, practice and apply skill and learning 1. the existence of attorney / client relationship
- Malpractice if absent skill & learning or failure to apply 2. the acts of the alleged negligence
2. Did something forbidden or forgot to do something required - reasonable degree of care, skill & knowledge for task
3. Medical Standard of local community - expert testimony required
- affirmative evidence, else jury not permitted to speculate - unless so obvious, court can find as a matter of law
4. Negl. never presumed, must be affirmatively proven. 3. the proximate cause
5. Standard of Care by expert medical testimony 4. the fact and extent of injury
- unless grossly apparent to a layman - but for atty negligence, client would have been successful
6. Testimony another would perform different treatment not - the value of lost claim… what outcome should have been
sufficient, unless alternative deviated from community standard

Standard of Care (What is Duty) Duty to 3rd Party

1. Degree of ordinary skill, care and diligence of Old Rule: Absent fraud, collusion or privity, attorney not liable to 3rd P
2. Members in good standing in the same community in same practice Balancing Factors Theory: (Calif.- Not in privity with 3rd party)
1. extent of intended effect on 3rd party
Standard of Care (Local (Community) Standard)
2. foreseeability of harm
• To protect rural hands-on learned practitioners
3. degree of certainty that plaintiff suffered harm
Substantive: Standard of ordinary practitioner in community
4. closeness of connection between conduct and injury
Evidentiary: Expert testimony of reasonable practice in similar
5. policy of preventing future harm
facilities & community
3rd Party Beneficiary Theory: (Recognized in Every Jurisdiction)
Standard of Care (National Standard )
• Two party agreement with intent to confer a direct benefit on 3rd
• Standard of Care in Exercise of Skills & Knowledge
• Allege and prove direct purpose was intended to benefit the 3rd
Modern Informed Consent 1st element in Lack of Informed Consent
1. The informed exercise of a choice.
2. Not left to the discretion of the local medical group
3. Communication enables informed intelligent decision
- full disclosure of all material risks
- a risk is material if it would affect patient’s decision
• Exception (must be proven by doctor):
- Primary duty must be what is in patient’s best interest...
- withheld if detrimental to patients overall care
- would alarm an emotionally or upset patient
- Emergency... patient in no condition to make decision
• Unauthorized treatment w/o consent is a battery.

Malpractice- Lack of Informed Consent (must allege & prove)

1. Physician failed to inform material risk before securing consent
2. Causation... if informed of risk, consent would not be given
- would have chosen no, or different, treatment had alternatives &
risks been known
- if would have elected treatment anyway, there is no action
- jury have to find patient would have refused treatment
3. Injury... consequences not known resulted in injury
Defense: 1. Physician proves patient knew of risks or
2. full disclosure would have been detrimental or
3. Good Samaritan

W. B. Newberry Jr. Fall 1999 - 24 Torts 5154-002

 Violation of Statute
Application of Statute
Statutory Violation
Inference of Negligence
Rebuttable Presumption as Defense
Negligence per se (Negl. as a matter of law) (form of Strict Liability)
• Exception to RPPSSC going to Duty / Breach
• Defined standard which negligence (duty/breach) is determined
Application of Statute
1. Evaluation of Intent and Purpose of Statute
2. Is plaintiff a member of the class intended to be protected?
3. Is harm a type the statute was intended to prevent?
• 2 & 3… Negligence per se, or elements of applicability
• Judge interprets on Logic of Experience absent legislative
history or common law
Statutory Violation
• A mere violation does not render one liable
• Violation alone does not proximately cause injury
- The injury must follow from the negligence
- Must show injury due to negligence or unskilled treatment
Inference of Negligence (Can Find)
• Violation of a penal statute in a civil action
Rebuttable Presumption (MAY & Should find)
• Defense if unreasonable to adhere statute because it is more dangerous.
Negligence per se (form of Strict Liability) (MUST Find)
• Absent legislative language creating civil liability, court free to
1. apply legislative standard, or
- is purpose to protect person injured, and harm suffered
2. retain common law RPPSSC
3. No liability unless the violation is the proximate cause
- Even then, Contributory Negligence still applies
• Qualifications that refute Negligence per se
- Statutory Purpose Doctrine
- Requirement of Proximate Cause
- Rebuttable Presumption (Excused Violations)
1. An excused violation of legislative enactment
2. Unless enactment is construed to permit an excuse,
a. reasonable because of actor’s incapacity
b. actor neither knows nor should know of statute
c. unable to comply even after diligence and care
d. confronted by an emergency not of own making
e. would involve a greater risk of harm
f. may be others as list is non-exclusive
W. B. Newberry Jr. Fall 1999 - 25
Res Ipsa Loquitur:
The act speaks for itself…
Purpose and Characteristics
Procedural Effect
Restatement
Control Rules
An alternative way to prove a breached duty
Plaintiff at severe disadvantage because Cause not known
Primary Use is as a “smoking out device”
1. injury does not ordinarily happen absent negligence,
2. instrumentalities under exclusive management and control of (D)
- plaintiff excludes all other possible causes
- evidence > 50:50 chance
- at time of negligence, not necessarily time of injury
3. (D) possesses superior knowledge as to cause
Procedural effect as to Jury Instruction
Inference (majority): (Strange) (Can Find)
- Inference of negligence but not necessarily a finding of negligence
Rebuttable Presumption (minority): (Unusual) (MAY & Should Find)
- Calls for a presumption of negligence by (D)
Burden of Proof (minority): (Extraordinary) (MUST Find)
- BoP shifts to (D) to prove non-negligent by preponderance
Restatement 328:
1. May be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when
a. event which is not ordinarily absent negligence
b. other causes are sufficiently eliminated
c. negligence is within scope of (D)’s duty to (P)
2. Court determine if inference is reasonably drawn or must be
drawn.
3. Jury to determine if inference is drawn where different reasonable
minds may differ
Control rule:
• (D) must be in control of the cause of the harm to be liable
Modified control rule:
1. Is the instrumentality within the defendant’s power or right to control?
2. At time when negligence occurred, not injury
• Run-away car cases: tampering, mechanical failure, failure to lock, or
not putting the car in park and setting the emergency brake. These
cases also are likely to go to the jury on res ipsa.
• In cases wherein there are other agents within control scope of (D),
(D) is still responsible (Doctor in hospital setting)
Torts 5154-002

Cause in Fact (C-N-F)
Causation between Act & Injury
C-N-F standards:
• But-for:
- but for the act, injury would not have occurred
- Not appropriate in Concurrent Cause cases,
• Substantial Factor:
- A legal cause of injury is a cause which
is a substantial factor in bringing about the injury
- For single or Concurrent Cause cases
- Concurrent Causes are sufficient and independent
Proximate Cause (PC)
Public Policy Precept
Liability Limitation to < all harmful consequences of action
Typically Court Decided
Foreseeability (is the cause a foreseeable risk of the duty)
- Should have anticipated danger
- Need not be sole cause
- Must be concurring cause reasonably contemplated
- Defendant failed to guard against foreseeable risks
- If injury is not among foreseeable risks... no liability
Egg Shell Rule- (Exception to Foreseeability)
- (D) liable for natural occurring latent condition of (P)
Intervening Cause
- Do Not always insulate original negligent (D) from liability
- Some, combine or act in concert
Supervening Cause- (Exception to Foreseeability)
1. Independent
2. Adequate to cause injury
3. Not reasonably foreseeable
Examples of Supervening:
- Suicide victim with control/power to control desire
- Acts of God or Force of Nature
- Intentional or Criminal Conduct
NOT Examples of Supervening:
- Suicide victim dilusional having irrestible impulse
- Foreseeabl Acts of God or Force of Nature
- Subsequent negligence involving a rescuer
Rescue Doctrine, primary & subsequent parties are liable
- Rescue doctrine does not apply to dangerous risks
particularly associated with the rescue activity
W. B. Newberry Jr.
Defendant Identification Issues
Enterprise Liability Theory
Alternative Liability Theory
Market Share Liability Theory
Market Share Alternate Liability
Risk Contribution Theory
Joint & Several
Respondeat Superior
Multiple defendants but only one cause-in-fact
- BoP on (D) to prove whom caused injury
- C-N-F Substantial Factors Test
Enterprise Liability Theory (industry-wide liability)
1. Small number of defendants in the industry
2. Joint knowledge of the risks
3. Delegated responsibility for risk to a trade association
- BoP on (D) to prove whom caused injury
- Responsibility by concert of action by their trade associations
Alternative Liability Theory
- Proof (D) produced, manufactured, sold, or responsible
- BoP on (D) to prove whom caused injury
- Problem when not all (D)s are named… could result in
named (D)s being liable for another who is not a party
Market Share Liability Theory (California)
- Overcomes AL failure to identify all possible (D)s
- Liability apportioned among defendants based on market.
- (P) joins mfgs of substantial share & meet all negl. elements
- BoP to (D), failure to meet BoP, each (D) liable for mkt share
Market Share Alternate Liability (Washington)
- Preponderance of evidence that defendant was involved
- BoP on (D) to prove whom caused injury
- (D) may bring in other (D)s
- damages are initially distributed evenly, else
- (D)s proof of market share
- (D)s unable to establish market, share equally
Risk Contribution Theory (Wisconsin)
- Permitted action against only one (D)
- if (D) does not implead other (D)s, damages determined
by jury comparative negligence statute
Joint & Several
• Concert of Action
Concert of Action.. united wrong, intended or performed, active
aid or encouragement, for benefit, whether express or implicit
• Indivisibility of Harm
- Combined concurrent or successive, independent,
negligence or omissions, in combination impossible to
determine proportion of cause producing a single injury
even if there is no common duty, design or concerted act
Respondeat Superior (a form of Joint & Several)
• ingaged in performance of service for Master
• acting within the scope of employment
Independent Contractors
• Subject to employer’s control as to result, not as to means used
• Employee if Right to Control, need not actually control, or
Authority to Discharge, control wages & payment
• NOT liable for Independent Contractor, unless
- negligent in hiring or supervising
- hiring for nondelegable duty or performance of illegal act
- Inherently or Intrinsically dangerous activity
Fall 1999 - 26 Torts 5154-002

Doctrine of Limited Duty
(Public Policy Doctrine)
Failure to Assist
Failure to Assist
• Common Duty to avoid any affirmative act to make a situation worse
• Good Samaritan (to encourage rendering of aid)
- Good faith emergency care (Duty to exercise due care)
• Special Relationships requiring Duty of Care
- Common Carrier to Passenger Contractual
- Innkeepers to Guests Relationships
- Possessors of public land and Invitees
- Requirement by Law or Voluntarily takes Custody that
deprive other of normal opportunities of protection
• No Duty to Aid
- A person who has not imperiled another is not liable for failure
to render aid, unless there is a relationship giving rise to a duty
• Duty to Exercise Reasonable Care in Voluntary Relationship
- can arise from an induced reliance due to an express of implied
- gratuitous promise, an undertaking, or holding-out
• Breach of Duty
- an expressed or implied induced reliance,
- affirmative act places person in peril or incr risk of harm,
- and an omission or failure to act,
• Public Duty Doctrine
- if breach of “Public Duty”, amenable to the public and
punishable by indictment only
• Duty to Control... must also have ability to control
- Special Relationship between controller & controlled
- foreseeability of harm
• Foreseeable Criminal Activity
- (D) can not claim supervening cause if harm is anticipated
W. B. Newberry Jr. Fall 1999 - 27
Doctrine of Limited Duty
(Public Policy Doctrine)
Negligent Infliction of Emotional Distress (ED)
Injury to Fetus and Wrongful Life
Negligent Infliction of Emotional Distress (ED)
• If actor should have realized risk of causing Fright or ED
• Impact doctrine is dead, but replaced by Physical manifestation
• No liability for unusual sensitivities, unless known by actor
• Eggshell rule does not apply
• Exceptions to physical manifestation...
- Death-Telegram & Interferences w/ dead bodies (Lost)
• 3rd Party may never recover, unless Physical, Temporal
and Relational Proximity of Victim is 1) seen of harm / accident
2) Direct impact from sight , 3) Relationship of (P) and victim
• Zone of Danger
- Is a 1st Person action, not a 3rd party action
Injury to Fetus and Wrongful Life
• Viable but Unborn- Wrongful Death is actionable
- problem is difficulty with causation
• Not yet Conceived- Negligence of mother before conception
- child has action for injuries against tortfeasors
• Prenatal Injuries- Caused by mother is not actionable
- Caused by other is actionable
• Wrongful Birth- Parental action
- Preventing parents from avoiding conception or abortion
• Wrongful Life- Child action... not actionable
- But for Negligence, parents could have terminated pregnancy
- no way to measure nonexistence to an impaired existence
Torts 5154-002
 Doctrine of Limited Duty
(Public Policy Doctrine)
Owners and Occupiers of Land Duty of Care
Invitees, Licensees, Trespassers,
Lessees & Guests,
Person outside premises
Owners and Occupiers of Land Duty of Care
• Invitee (Express/implied invitation/consent for mutual benefit)
1. maintain premises in reasonably safe condition
2. warn of dangers discoverable with reasonable inspection
3. not liable for known or open and obvious dangers
unless invitee’s attention may be distracted or invitee
will proceed to encounter risk
-. Not insurer of safety from unforeseeable criminal actions
• Scope of Invitation
- If exceeds purpose, area or time, Invitee status changes to
Licensee or Trespasser depending on circumstance
• Licensee (Express/implied permission/consent & for own purposes)
- liable if knows or should have known of unreasonable risk
that would not be discovered or realized &
- fails reasonable care to make safe or to warn of the risk &
- licensee does not know or have reason to know of risk.
- duty is lower than to invitees
- not liable for natural conditions as they should be apparent
- not liable for assumed/anticipated conditions of emergency aid
- social guests
• Trespasser (Enters/remains w/o privilege of consent)
- no duty other than not to injure willfully or wantonly
- reasonable care to not injure after presence is known
- Licensee if you know trespasser constantly intrudes small
portion of land, must take reasonable care for their safety
- Attractive Nuisance/Turntable Doctrine
(Artificial Conditions Highly Dangerous to Trespassing Children)
- natural or artificial body of water excluded
• Lessees & Guests (no liability to lessee or guest unless)
1. Undisclosed Dangerous Conditions Known to Lessor
2. Condition Dangerous to Person Outside Premises
- Dangerous condition existed when leased
3. Lease for Purposes Involving Admission of Public
- Dangerous condition when lessee takes possession
4. Part of Land retained in Lessor’s Control
- Lessor could made the condition safe
5. Lessor Contracts Repair
6. Negligence by Lessor in Making Repair
• Person outside premises (be aware of encroachment issues)
- (Passive Use) Natural Condition
- Rural... Not liable
- Urban... Liable for trees near highway
- Duty of Care includes inspection
- (Active Use) Structural Condition (Liable)
- realizes or should realize unreasonable risk
W. B. Newberry Jr. Fall 1999 - 28
Damages
General Principles of Recovery
• Fundamental principal is compensation of wrongfully injured
• Purpose to return injured to original status,
- as well as money might restore injury
Intentional Invasion
• Nominal Damages w/o proof of Actual Damages
- Mathematical exactitude not required
- need only reasonable certainty from evidence submitted
- Can not recover Compensatory plus Nominal Damages
Negligence Action
• Compensatory Damages (Actual)
- General Damages presumed accrued need not be pled
- Special Damages not necessary consequences must be pled
• Remote or Speculative Damages... Not in tort actions
• Nominal Damages... NOT recoverable in negligence
• Punitive Damages... Not for ordinary breach, contract or simple tort
- Malice or gross disregard
- Not allowed without Actual Damages
- Punishment, deterrence, financial worth of defendant
public service for bringing (D) to justice
Measure of Damages in General
• Real Property- several measures
- Permanently Injured ... Difference in market value
- Special Damages proximately & naturally from injury
- Small portion, Repairable or Temporary
- Cost of restoration, plus - Loss of use
• Personal Property
- Permanent... Difference in market value before & after
- Repairable...Restoration, depreciation, & expenses
Jury Discretion as to Amount
• Subject to correction for clear abuse or arbitrary exercise
• If it verdict shock conscious, or contrary to evidence
• Judge may order new trial conditioned on nonacceptance of a
- Remittitur or Additur
- Plaintiff has right to retrial as to damages only
Wrongful Death
• Only actionable where decedent could have maintained action
• Personal Injury of Decedent Prior to Death Damages to Next of Kin
• Medical expenses, Funeral expenses, Pain & Suffering, Loss of
companionship, society, support, & Services
Personal Injury
1. Medical, Hospital & Nursing & Related- Reasonable & Necessary
2. Nature, Extent & Permanence of Injury- Quality of Life
3. Loss of Earnings- Past, Present & Future (must be pled)
4. Impairment of Earning Capacity
5. Physical Pain & Suffering- Past, Present & Future
6. Mental Pain, Anguish & Suffering- Past, Present & Future
7. Disfigurement or Deformity
• Per Diem Rule, Maximum Recovery Rule, Permanent Damage
Awards (Discount to NPV) Actuary Tables (permanent injury)
• Mitigation of Damages...Duty to exercise reasonable care
• Collateral Source Rule Earnings not to be mitigated or reduced
Torts 5154-002
 Comparative Comparative / Contributory Contributory Assumption Last Clear Mitigation Statutes of Immunities
of Risk Chance of Damages Limitations

Fault (D) ≥1% (D) < 100% (D) any% Sovereign,

(P) any % 1. When
Affirmative Threshold (D) ≥ 50% (D) ≥ 51%
(P) Express
(D) any % (D) any %
Breached
Charital,
Spousal
(D) Gross 2. Aware of
Defenses (D)’s
Avoidance
Imlied
Primarily
Harm Judges
(P) ≤ 99% (P) any % (P) any % 3. Aware of Politicians
Voluntary
Encounter (P) had last Injury Officers
(P)’s (P) ≤ 50% (P) had 4. Discover
(P) ≤ 49% Unreasonable clear chance Duty of Care Officials
Recovery (P) Slight (P) > 0% Encountering Misconduct IntraFam
Pure Not Greater Not As Great Slight / If Facts Overlap, Defence to Defence to Fairness to
Than As Gross Use Contributory Contributory Contributory Defendant

Assumption of the Risk
• Express assumption of the Risk
- Invalid when Public Service, decisive advantage, Absent
provision to purchase protection, under control & risk of seller
carelessness, and contract does not include injury suffered
• Implied Assumption of the Risk (IAoR)
- (P) knows, appreciates, voluntary or remains in are of risk
knows, understands or appreciates
Statute of Limitation
• Shillady Rule (Malpractice)...
- Patient learns or should have learned of presence of
foreign object in body or Effect of Pharmaceuticals
• Accrues when Duty Breached, (P) suffers harm, becomes aware
of Injury, orDiscovery of Causal relationship
• Primary Consideration is Fairness to Defendant
- Loss of Evidence, memories, witnesses...
• Statutory in nature... Can not be altered by contract
Immunities (basis was King can do no Wrong)
• Sovereign Immunity abolished
• Common Law Immunity exists for legislatures, judges,
government Officers & Officials
• Charital, Spousal Immunity abolished, Intrafamily (chilrden
suing parents) not abolished
• United States (See Note 3 Pg 367 & 368)

Substantative Torts
Products Liability Continued

Negl UCC Misrepresentation 402B Strict Liability 402A

Anyone Consumer Consumer, User,

Plaintiff or User Consumer or Foreseeable
Owed a Duty
“Innocent Bystanders”
Any New or Used
Manufacturer or Seller
Anyone Who Any Seller Any Seller
Defendant Breaches a Duty
NOT Public Services Entity
NOT Charitable Entities
NOT Doctors or Dentists
Economic, Economic,
Any Property, Property, TBA???
Damages Proximately Caused Personal Injury, Personal Injury, Personal Property
Consequential Consequential
Contributory, Superior,
Comparative, Last Clear Disclaimers, Misuse
Disclaimers,
Defences Assumption of Chance, Conditioned Proceedings Conditioned Proceedings Not Foreseeable Bystander
Risk, Mitigation of Open & Obvious
Respondeat Damages

MM MD FW Elements
X X X 1. Product was Defective
x x x a. Consumer Contemplation
x x x b. Risk/Utility
Products Liability x x
x
x
x
c. Risk/Utility & knowledge of defect
d. Stream of Commerce
x e. Failure to Worn
X X X 2. At time left Defendant
X X X 3. Injury to Foreseeable User/Bystander
X 4. Failure to Warn

W. B. Newberry Jr. Fall 1999 - 29 Torts 5154-002