Torts Outline Mk. II


Table of Contents


Writs and the common law.. 3

Intentional torts. 3

Intent 3

Transferred intent 3

Mistake. 4

Insanity. 4

Torts to the person. 4

Assault 4

Battery. 5

False imprisonment 5

Intentional infliction of mental distress. 6

Torts to property. 7

Trespass to land. 7

Trespass to chattels. 7

Conversion. 7

Defenses to intentional torts. 8

Consent 8

Self-defense. 9

Defense of others. 9

Defense of property. 9

Recovery of property. 10

Detention for investigation. 10

Public necessity. 11

Private necessity. 11

Discipline. 11

Justification. 11

Punitive damages. 12

Negligence. 13

The Hand formula. 13

The reasonable person. 14

Custom.. 14

Physical impairments. 14

Children. 15

Insanity. 15

Professional standards of care. 15

Medical malpractice. 16

Informed consent 16

Automobile guest statutes. 17

Rules of law.. 17

Negligence per se. 17

Res ipsa loquitur. 19

Burden of proof in res ipsa loquitur. 19

Causation. 19

Actual causation. 19

Loss of chance. 20

Scientific testimony. 21

Concurrent causes. 21

Substantial factor test 21

Proximate causation. 22

Direct causation. 23

Foreseeable consequences. 23

Intervening and superceding causes. 24

Rescuers. 25

Social host liability. 25

Failure to act 26

Contributory negligence. 26

Last clear chance. 27

Comparative negligence. 27

Assumption of the risk. 27

Express assumption of risk. 28

Implied assumption of risk. 28

Primary versus secondary assumption of risk. 28

Joint tortfeasors. 28

Joint and several liability. 28

Contribution. 29

Liability for subsequent injuries. 29

Statute of limitations. 29

Landowner liability. 30

Outside the premises. 30

Artificial versus natural conditions. 30

Categories of entrants onto land. 30

Trespassers. 31

Licensees. 31

Invitees. 31

Child trespassers. 32

Strict liability. 32

Animals. 32

Abnormally dangerous activities. 32

Vicarious liability. 33

Respondeat superior. 33

Coming and going. 34

Independent contractors. 34

Nondelegable duties. 35




A tort is a civil wrong or injury caused by a breach of duty that arises by operation of law rather than agreement.  What is a civil wrong?  A wrong that courts or legislatures have determined are actionable.  What is a breach of duty?  When someone has a legal duty towards you (other than in a contract) that they breach.


Writs and the common law


Initially, you had to have a writ from the King in order to have a claim in court.  There were two writs – trespass and case.  Trespass was actionable due to direct harm; a preview of intentional torts.  Case lets you recover on something that isn’t immediate; sort of the precursor to modern negligence.


Now we have a fault view of the law.  The law of intentional torts doesn’t change over time as much.  Reasons for the fault concept: (1) We want to protect the growth of industry.  (2) We want to be fair to defendants – we no longer think it’s fair to hold people liable in the absence of fault.  (3) We also want to be fair to plaintiffs – they don’t need to depend on selecting the correct writ or that their harm is direct to be able to recover.  (4) We want to promote economic efficiency – this comes up again and again and again.  We want to create incentives for companies to invest in the optimal amount of safety.  For example, most prescription drugs help people while a few drugs harm people.  We don’t want to let harmful drugs on the market, but then again, we don’t want to keep all drugs off the market.


Intentional torts


Prima Facie Case – proving “the face of it”…the burden of proof in almost all tort cases is “the preponderance of the evidence”…that is, greater than 50%.  The jury will be told that “the plaintiff has to prove that it’s more likely than not the thing happened rather than didn’t”.  To prove a prima facie case, the plaintiff must prove that: (1) an act occurred, (2) the defendant intended to do the act, and (3) the act caused damages.  We protect against dignitary harms in intentional torts.


Tips from Mr. Gilbert: (1) Identify all the possible intentional torts.  (2) Consider the prima facie case of each tort and see if all the elements are present.  (3) If a defendant has committed a particular tort, consider whether the defendant has some privilege or defense that might limit or eliminate their liability.  (If they don’t have any possible defense or privilege, they’ve been a bad person!)




We don’t hold people liable for intentional torts when they don’t have intent.  A person acts with the intent to produce a consequence if: (1) The person has the purpose of producing that consequence, or (2) the person knows to a substantial certainty that the consequence will ensue from the person’s conduct.  The defendant’s motive is immaterial.


The test of whether a defendant had a certain purpose or knew the likelihood of a result to a substantial certainty is a subjective test.  The question isn’t what a reasonable person would have desired or believed, but what this particular defendant desired or believed.


“Egg shell” or “thin skull” rule – if you intend to cause harm to somebody, and the harm is greater than you expected it to be, you’re responsible for the full consequences of your actions.  How do we justify this rule?  It’s easy to administer and helps ensure full compensation for accident victims.  Finally, the law places a high value on human life.


Transferred intent


Intent can be transferred among the five torts that derive from the original writ of trespass: battery, assault, false imprisonment, trespass to land and trespass to chattels.  If the tort that was intended or the one that was accomplished is not one of the five, transferred intent does not apply.  The court finds that the intent of assault transfers to the battery that actually occurs.


Transferred intent can only be transferred among a certain group of torts: assault, battery, false imprisonment, trespass to land and trespass to chattels.  Neither conversion nor intentional infliction of emotional distress is covered.


What if the defendant had accidentally hit someone on the plaintiff’s land while firing at ducks?  The defendant would be liable for battery.  The plaintiff gets to the defendant by using the doctrine of transferred intent.  If the defendant intended to trespass on the plaintiff’s land, but ended up committing battery, then the intent properly transfers between the two torts.




Ranson v. KitnerAre the defendants liable for trespass to chattels if they intended to harm a fox and not a dog?  A person is liable for damages caused by a mistake, even if it is made in good faith.  The defense is that they did not intent to harm a dog, they intended to harm a wolf.  The court says the defendants are liable because even though it was in good faith, you’re still liable.


Why would we have a rule like this?  We might fear fraudulent claims of mistake.  We also want to see the harmed person recover.  If you have intent to harm, but harm someone or something else, you’re still liable.  We want defendants to bear the risks of their own mistakes.  Therefore, mistake does not negate intent.




Are insane people liable for their torts?  Yes, because you do the tort, you do the time.  We favor the injured person over the injurer.  What other justifications exist for holding an insane person liable?  If you’re capable of forming the intent to cause harm, even if the intent is totally divorced from the reality of the situation, you’ll be liable.


But why hold someone who has been committed to a mental institution liable?  The intentional tort issue exists apart from negligence.  Are relatives going to try to restraint the insane person?  The court suggests we want the relatives to be responsible for keeping the person from hurting others.


This is a practical, utilitarian compensation rule.  We don’t want to get into fault here, and we don’t want courts to get too deep into the question of insanity.  As long as you have the intent to do harm, even if you think you’re Napoleon harming an enemy, you’ll be liable.  The law doesn’t care what delusion the insane person is under when he commits the battery.


Torts to the person




Assault is an act (volitional movement) intended to cause apprehension of an imminent harmful or offensive contact, which directly or indirectly causes reasonable apprehension of such contact.


You can’t create an assault with just words.  However, if you say “look out, there’s a rattlesnake behind you!” and there’s no rattlesnake behind you and your intent is being mean, many jurisdictions and the Restatement would find that it’s an assault because the impact of the words may create a sufficient apprehension of contact as to constitute assault.  Some jurisdictions might find that it isn’t the threat of imminent harmful or offensive touching because no touching is actually going to take place.


Apprehension – the sense that a harmful or offensive touching is about to happen.  The plaintiff must be aware of the threat at the time it was made.  That’s different than the rule for battery.  Why does it matter if your apprehension is reasonable or not?  You might be an extra super sensitive plaintiff.  It depends on the jurisdiction.  Apprehension doesn’t mean fear…it means the sense of about to be touched.  Most of the time, the damages for assault will involve offense rather than harm.  Apprehension is necessary for assault.  Contact is not.  Once you get contact, you move to battery.  But not all batteries include assault.


Intent – the defendant must have the intent to cause apprehension of harmful or offensive contact or actually cause that contact (although that’s more a transferred intent issue).  Intent is broader than “I want to do this”; it could also be “I’m doing something that’s likely to create a certain harm.”


Why is there an assault tort?  Courts have decided that psychological injury without any accompanying physical injury is compensable.  We also want the legal system to protect “mental tranquility”.  We do not want actors to use threats of force to get economic gain.  Finally, the assault tort must be applied in order to be consistent with the battery tort.




Defendant must intend to cause harmful or offensive contact with the person of another which actually does cause harmful or offensive contact.  It’s battery to touch someone who doesn’t want to be touched, once you know they don’t want to be touched, even if you’re trying to help.  We make an exception for doctors treating unconscious people.


The touching has to be things connected to you.  This is called the extended personality doctrine.  We’re looking for an intimate association with your body to find liability.


Fisher v. Carrousel Motor Hotel, Inc. – Can a plaintiff have a cause of action for battery if he or she was neither touched nor in apprehension of physical injury?  How far does your “person” extend?  The basis of an action for battery is the “unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body”.


Why do we have a battery tort?  We want to protect people’s dignity.  We also believe that a person’s body deserves protection from invasion.  We want to deter socially undesirable conduct.


False imprisonment


The elements of false imprisonment are (1) intent to confine, (2) bounded area, and (3) awareness of confinement by the plaintiff.


Confinement – There must be a specific area in which the plaintiff is completely confined without a reasonable means of escape.  You must be actually confined; moral persuasion is insufficient for false imprisonment.


Force – Only force or threats of force constitute false imprisonment.  The possible methods of confinement include threats of physical force, actual force, duress of goods, and threats to your family members.  The law values your property very highly.  It’s more important than we might have imagined before.  This comes from common law notions about how important land and possessions are to people.  This is called duress of goods.


Awareness – Do you have to be aware of your confinement at the time of trial in order to collect damages?  No, but you must have been aware of the confinement at the time it happened.  The Restatement of Torts says that to recover for false imprisonment, you must be aware of the imprisonment, or you must be harmed by it.


Damages – What kinds of injuries must you suffer to be able to recover for false imprisonment?  You need to have physical, mental, or economic damages.  You could even make a claim for nominal damages, but you probably wouldn’t want to bother.


We have false imprisonment claims because we want to ensure personal freedom and dignity, and we want to deter abuse by authority figures.  We put limitations on the tort because we want to protect property rights and allow public officers to make appropriate decisions.


Enright v. Groves “False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority.”  Courts rarely reach verdicts of false imprisonment against police officers.  There is a pretty heavy presumption that police officers have legal justification to make arrests.


Intentional infliction of mental distress


It must be intentional or reckless.  There must be severe emotional distress.  The defendant’s conduct must be extreme and outrageous.  The plaintiff must suffer actual damages.  There is no transferred intent with intentional infliction of mental distress.  Intentional infliction of mental distress has a higher standard of proof than other intentional torts.


Extreme and outrageous – To determine whether conduct is really beyond the pale, courts will look at the “totality of the circumstances” rather than a single incident in isolation.  Insult by itself is not a tort because it is not entirely beyond the pale of acceptability.


Severe emotional distress One way to prove severe emotional distress is to show physical signs of emotional harm.  You can also show emotional harm that was treated by a psychiatrist or psychologist.  You must prove, for example, that you were unable to work due to significant stress stemming from the claimed injury.

Things that make intentional infliction of mental distress more likely to lie: (1) Repetitive, continued conduct, (2) unequal power or abuse thereof, (3) exploitation of known sensitivities or picking on immutable characteristics, (4) use of a racial epithet, (5) the defendant is a common carrier, or (6) the plaintiff is a woman, especially a pregnant woman.


Why is it a good idea to have an intentional infliction of mental distress claim?  (1) We want people to be free of severe emotional distress.  (2) A mental or emotional injury is a real injury.  (3) The defendant’s behavior has no social utility and thus there is no reason to protect it.  (4) We award damages for mental suffering in other torts.


On the other hand, why do others think it’s a bad idea to recognize this tort?  (1) It’s hard to quantify damages.  (2) It’s hard to prove damages.  (3) Juries aren’t qualified to assess the damages from mental and emotional suffering.  (4) You may open the floodgates to many potentially fraudulent or weak claims.  (5) There is no basis in the common law for intentional infliction of mental distress.  It wasn’t recognized under the trespass writ.


Liability to bystanders and the “presence” rule – Is the presence of a bystander necessary for intentional infliction of mental distress to lie with respect to that bystander?  The benefit of the “presence” rule is that it gives you a bright line; it’s predictable.  The presence requirement is proof that you intended to cause emotional distress.  The Restatement requires presence, but not all jurisdictions require it.  The “presence” rule cuts off certain people we might be better off covering.  If a member of your family is present at the time you are harmed, and the defendant knows that some third party is there, the third party need not show physical harm to show damages.  If it’s a friend instead, they would have to show physical consequences.  We figure if you intend to inflict emotional distress on someone, they have to be here.


Torts to property


Trespass to land


This is trespass with the intent to enter the property of another.  It’s not an intent to cause harm or anything else.  Every authorized entry onto the land of another is trespass.  When we say “land of another”, we mean land which the plaintiff possesses or to which the plaintiff is entitled to immediate possession.


What if the defendant tripped and fell onto the plaintiff’s property?  Mistake does not negate intent, except when you can’t stop yourself from doing something because you’re tripping.  It’s a “technical trespass”.  It’s of such minor importance that we won’t allow a suit.  Tripping counts as a voluntary act.  The only thing that doesn’t count as a voluntary act is when somebody pushes you onto someone else’s property.


Bradley v. American Smelting and Refining Co. Can trespass lie when it does not involve anything visible to the naked eye? Even the slightest bit of harm, including “by the vibration of the soil or by the concussion of the air” constitutes trespass.


Herrin v. Sutherland If you physically invade the air above someone’s land, is it trespass?  The air space near the ground over your land is as much your property as the land itself.  Everything that’s directly under my place is also part of my place.  You own a “reasonable space” above and below your property.


Trespass to chattels


Chattels are personal property.  Trespass to chattels is the “intermeddling” with your stuff.  With trespass to chattels, you must show actual damages.  We care more about you being hurt than your stuff being hurt.  As far as damages go, you look at the amount of damages to the good.


Glidden v. Szybiak Someone cannot be held liable for trespass to chattels unless some harm comes to the chattel.  There must be actual damages, which are construed to include taking stuff away if you put it back later.


CompuServe Inc. v. Cyber Promotions, Inc. – Trespass to chattels occurs when the defendant intrudes upon the plaintiff’s chattel such that damage results.  The standard set down in this case is that trespass to chattels may lie for sending unwanted e-mails if the value of the computer equipment involved is diminished and the plaintiff can show actual damages.  In this case, the plaintiff shows that they have lost business because of the spam.  Note that trespass to chattels typically involved tangible property.  This is a clever use of the tort to apply to intangible property.




In order for conversion to occur, some property must be interfered with in a “complete or very substantial” way.  The difference between conversion and trespass to chattels is that conversion means you recover the market price of the item converted, but you don’t get the item itself back.  So if you use a chattel in a way you weren’t authorized to and you mess it up badly, you could be liable for the entire replacement cost of that chattel.  So watch out!


Conversion of a chattel is the forced sale of that chattel.  It gets sold, and then you get the proceeds from the sale.  When a piece of property gets converted, you get damages, but you don’t get the thing back.  If you want to keep the chattel, you must go for an action of trespass to chattels. 


Conversion is an inefficient way to get your goods back because you force the sale of the goods.  Generally, the further away goods move, the more likely a jury will call it conversion.  The question is: at what point is it so inconvenient that the plaintiff can sue for conversion?  An alternative action to conversion is to replevin the goods, which means to get the stuff back rather than forcing it resold.  If somebody took a lottery ticket or a special pet, the situation would suggest using an action for replevin instead of an action for conversion.


Defenses to intentional torts


How does the defense part of a torts case work?  The plaintiff has the burden to establish the prima facie case.  If the plaintiff fails to do so, the defendant can file a motion for a directed verdict.  If this motion fails, then the defendant has the burden to prove one of the defenses or disprove an element of the prima facie case.  Then it’s up to the jury to make factual determinations.




Consent is a defendant to intentional torts based on the plaintiff’s conduct.  The defendant will argue (and has the burden of proof to show) that a reasonable person would have taken the plaintiff’s actions as consent to the defendant’s act.  Consent can be determined from: (1) The circumstances of the act, (2) implied acts or words, (3) a prior course of conduct between the parties, (4) custom, (5) whether a reasonable person would believe that the plaintiff consented, and (6) whether the defendant exceeded the scope of the consent given.


When there are words that indicate consent or lack thereof, you have an easier case to decide than if you consider the circumstances in general.  An unlawful or unreasonable demand that is made of a plaintiff will not lead us to conclude that their silent constitutes consent.


O’Brien v. Cunard S.S. Co. If the plaintiff’s behavior indicated that she consented, then the physician’s act was justified.  How would a reasonable person view what the plaintiff did?  She mentioned in passing that she had already been vaccinated, and did not protest when he said that he didn’t see a mark.


Custom and circumstances weigh heavily in determining whether someone has consented to a particular action.  If the circumstances indicate implied consent, the plaintiff needs to explicitly withdraw consent.  Otherwise, the plaintiff is responsible for her own protection, for example, through insurance.  You can infer consent from the existence of a relationship through action or words.  You can also imply consent from a course of dealing that the parties have had in the past.  Finally, conduct that is normally accepted in society will not be called battery.


Hackbart v. Cincinnati Bengals, Inc. Can there be a tort action for an injury from an intentional blow in a pro football game?  If there are rules in the game to prevent the infliction of serious injuries, then the plaintiff cannot be construed to have given up his rights by playing.  If the injury happened outside the course of playing the game itself, it’s not governed by the rules of the game and you can be held liable for battery.  It’s presumed that players consent to conduct that’s within the rules, but not conduct that’s outside the rules of play.  In football, you may have an intentional tort in conduct that is outside the rules or normal customs of the game.


Mohr v. Williams – In medicine, you consent to the procedure you consented to when you were capable of doing so.  In other words, you have to wake a patient up and make sure that they’re okay with the new, different thing you’re planning to do.  If you don’t, you may be found liable for “technical battery”.  Consent may be implied if a procedure is necessary to preserve life or limb and the person is unable to give express intent.


De May v. Roberts – Is the plaintiff’s consent valid if she was misled about one of the defendants being a doctor?  The plaintiff had a legal right to privacy.  Consent which is obtained through fraud is not valid consent.


Hart v. Geysel – Can an action for wrongful death be brought when both parties consented to the fight even though it was unlawful?  There are two views.  The majority view says that both parties are liable to each other, while the minority view says neither can collect because they were both engaged in an illegal act.  A plaintiff’s consent to an illegal act is not valid if the statute against the act exists to protect him.


The minority rule tends to discourage illegal activity more.  However, the majority rule might create an incentive for the winning fighter to pull back instead of risking a lawsuit for beating his opponent up too much.  The incentives are not a whole lot different between the two rules under consideration in Hart.  At best, we can say there are two principles: (1) We discourage illegal activity.  (2) We do not reward wrongdoers for their wrong conduct.


If the person participating in the unlawful behavior is a person who is protected by statute, we won’t hold consent against them if they engaged in that behavior.  License requirements for boxers are meant to protect the boxers.  If they participate in illegal boxing, they can still sue because the statute was written to protect them.




You can use reasonable force in amount and duration based on the circumstances to protect your person.  The force you use must be proportional in some sense.  There must be an immediate threat of harm to trigger the self-defense privilege.  Transferred intent does not hold in self-defense situations.  You must have a reasonable belief that force is necessary, but you can be mistaken.  Words are insufficient provocation to trigger the privilege of self-defense because language doesn’t constitute assault.


Self-defense rules: (1) You can only use deadly force to counter deadly force.  Circumstances will vary: “Detached reflection cannot be demanded in the presence of an uplifted knife.”  Juries will take into account that your behavior came about during an emergency and will judge you accordingly.  (2) If you are in your own home, you have no obligation to retreat from deadly force in any jurisdiction.  In some jurisdictions, there are so-called “make my day” laws that let you use deadly force against burglars and other trespassers.  (3) There is no obligation to retreat if there is non-deadly force; you may use non-deadly force in response.  (4) There is an obligation to retreat if you’re confronted with deadly force outside your home, but the circumstances may vary.


Defense of others


In a defense of others situation, there are two different standards.  One approach is that you stand in the shoes of the person who is attacked, and thus you will be treated like that person insofar as you have exactly the same privilege as that person.  If you defend someone under attack, you have privilege, while if you defend the aggressor, you have no privilege.  Some jurisdictions will allow a reasonable mistake under the circumstances.  If you tried to help the aggressor thinking that he was under attack, you may maintain the privilege.


Which rule is better?  Is it a good policy to encourage people to get involved and stop a fight?  You may not want to encourage vigilantism, and you want people to call the police.  We generally want to discourage violence, especially against an adversary who is behaving peacefully.


Defense of property


When you defend property, what methods may you use?  (1) You may use reasonable force under the circumstances.  (2) You cannot use a spring gun unless that is reasonable force.  This is legally risky in a non-dwelling house.  (3) A balance must be maintained between protecting innocent persons and minimizing harm from dangerous interactions.


Katko v. Briney – You do not have the privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury.  So mistake does negate the privilege of defense of property.  The force involved is limited in particular by the requirement that the peaceful trespasser first be asked to depart, except when the intruder is acting in such a way that a reasonable person would find that such a request is useless or can’t be made in time.  Most states have outlawed the use of spring guns and the like.

What if you give fair warning of the spring gun?  Does that make it more legal?  No, the warning that there is deadly force on the premises is not sufficient if the deadly force is unreasonable.  It may help you legally to give notice if you have a vicious dog.  What about barbed wire or spiked railings?  They may be considered fair warning in and of itself.


When can deadly or serious force be used to defend property?  Such force can be used when your personal safety or that of your family is threatened.  Such force can be used to prevent a crime.  The more serious the crime, the greater the force that may be used.


You can’t eject a trespasser if doing so would put that person in unreasonable physical danger.  This might apply to making a drunken guest get in their car if the person is too drunk to resist.  If personal safety is at risk, ejection is a more absolute right.  There may be policy problems, however, if you apply this to a case where someone is ill with a contagious disease.


People can’t do indirectly what they’re not allowed to do directly.  Thus, spring guns and the like are illegal, or more properly, if someone is hurt by one you will be liable.  The problem is that machines do not have discretion like people do.  The goal is to have safe ways to protect your property that provide notice of their danger, for example, barbed wire.


If you’re privileged to use deadly force in your home, reasonable mistake is a defense to shooting the wrong person.


Recovery of property


One who is wrongfully dispossessed of a chattel by force or fraud has the privilege to repossess that chattel with reasonable force through fresh or hot pursuit.  This is a circumstantial decision made case-by-case by a defendant and judged case-by-case by a jury.  Deadly force will probably never be justified to recover property.


If you wait an hour or a couple of days before pursuing someone, it’s no longer hot pursuit and you must resort to the legal system to regain your property instead.  If you voluntarily relinquished your goods to someone else, you have no right to take them back by force.


Can a repo man use force to take back your stuff?  We want to discourage them from being violent and instead have them go to court.  In general, we don’t want to increase the number of violent interactions that take place in society.  We want to generally discourage “self-help”.  Repo men must be peaceable.


Detention for investigation


A shopkeeper can reasonably detain someone who they reasonably believe stole an item from the shopkeeper.  What’s reasonable is by and large a question for the jury.  But what constitutes reasonable detention?  The place where you are arrested should matter.  The farther away from the store you are, the less likely we are to view the detention as reasonable.  The amount of force used would also affect the reasonableness of the detention.  We also consider what the plaintiff said, the value of the item, whether an alarm went off, whether the person started running, and other relevant facts.  We have the shopkeepers’ privilege because of the problem of shoplifting.  If you find out someone took something several days later, you can’t go after them yourself.  You must use the legal system.


Public necessity


Public necessity kicks in when there exists a great danger that affects a whole community.  The action taken in public necessity must be reasonable and done to protect the public.  If the government takes your stuff, you must be compensated, unless you were the one doing the wrong that caused the “taking”.


A private citizen will be put into this position very rarely.  Public necessity is not a privilege only for public officials.  Public necessity justifies any act that is necessary for the public good whether performed by a public or private official.  Private citizens may not be so quick to act because they insure.


Surocco v. Geary If you destroy someone’s house in good faith and out of necessity, can you be held liable for damages?  The common law says that when it is necessary to give up one house in the interests of society (public necessity), the person whose house is sacrificed can’t sue.  Government officials often have immunity.  Why do we hold private citizens to a higher standard of liability?  We generally don’t want citizens to take the law into their own hands.  We also don’t want to punish public officials for doing their job.


Private necessity


This is a complete defense to trespass.  The rule is that you pay for the harm you cause.  You can take advantage of someone else’s property to protect your own property, but you must pay for the harm caused.  This rule forces people to make an economically efficient decision.  Actors will balance the value of their own property that they are protecting with the harm that will be caused to another person’s private property.  The rule is that you mustn’t harm someone else’s property just to gain for yourself.  If a public highway is blocked, you can cut through adjacent land to get around the obstruction.


Vincent v. Lake Eric Transp. Co. – Does the defendant have the privilege by necessity to moor the ship such that the defendant is not liable?  The defendant has a partial privilege to protect its private property from serious harm.  The defendant will be subject to liability to anyone who is injured.




What kind of force can you use in an educational setting?  You must use reasonable force.  In the old days, the teacher would stand in loco parentis (in place of the parents), and thus you could use the same force parents can use.  Nowadays, we look at teachers as agents of the state who must do what is educationally reasonable.  Also, in the old days, there was parent-child immunity, whereas nowadays children can sue their parents.  Most people today believe that teachers have less of a privilege to discipline children than parents do.




Don’t use this as a defense unless you’re really sure it fits the parameters of the case.  This defense pops up when no other defense to the tort will work but for some reason we don’t think it would be fair to hold the defendant liable.  If there is no serious harm to the public, the defendant is not justified.


Sindle v. New York City Transit Authority The plaintiff was trying to crawl out the window of the bus to escape when the bus driver was taking the bus to the police station because the passengers were vandalizing the bus.  The bus driver is protecting public property.  The court seems to be interested in the fact that the bus driver does not have a private interest at stake except for the safety of his person.  You can’t protect the bus at the expense of the children.  However, you can reasonably weigh harm to public property with inconvenience to persons.


What factors are relevant in determining whether the bus driver was justified in his actions?  (1) What is the manner and place of occurrence?  (2) Are other courses of action feasible?  Intentional torts should be your last resort.  (3) Was the defendant acting in the public interest, protecting persons and property?  (4) Did the defendant have the duty to aid in the apprehension of a wrongdoer?  (5) Was the defendant’s conduct acceptable and reasonable under the circumstances?


Punitive damages


These are sums of money that are awarded in addition to any compensatory damages.  These damages are available for intentional torts, but not for negligence.  In order to get punitive damages, you must show intentional or reckless behavior.  The judge decides whether the jury gets to consider punitive damages.


Statutes by state are limiting or eliminating punitive damages.  States also adopt different standards of proof in awarding punitive damages.  Not very many states use the “preponderance of the evidence” standard of proof for punitive damages, but rather use “clear and convincing evidence” which falls between “preponderance” and “beyond a reasonable doubt”.


Purposes for punitive damages: We want to deter morally reprehensible behavior of a particular defendant and discourage others from doing the same in the future.  It’s like a criminal punishment or fine.  It is an incentive for a plaintiff to bring a suit and an incentive for lawyers to take the case.  It can also help finance socially beneficial litigation that a plaintiff might not otherwise be able to afford.  It is alleged that compensatory damages are systematically insufficient.  Money is merely a benchmark for what the harm is.


What’s bad about punitive damages?  We think awards should be proportionate for fairness reasons.  When you punish a wealthy defendant, the plaintiff gets a windfall and the plaintiff gets the benefit of the defendant’s wealth.  This windfall may harm other plaintiffs who have claims against the defendant.  If you’re punishing the company, there are probably better places for the money to go than the plaintiff’s pocket.  We impose what amounts to a criminal sanction without the protections of the criminal law.  The jury has no firm guidance as to the determination of punitive damage awards.  Punitive damages are often so large that while they may not cause a company to go bankrupt, they may discourage companies from acting at all.  There may be a constitutional Due Process problem of notice.


Gryc v. Dayton-Hudson Corp.The plaintiff sued the manufacturer in a product liability suit.  Focus on “the extent to which the defendants are subject to federal safety regulation”.  What were the federal standards at the time?  It turns out that the product met the standards; however, that doesn’t make you immune from suit.  You can’t totally trust the government to tell you what to do.  It’s not sufficient to be in compliance with federal standards.


BMW v. Gore If you can only prove economic harm, you will not get as big of a punitive damage award as if there were other types of harm.


Price v. Hartford Accident and Indemnity Co.Price’s insurance company refused to pay a claim.  Price tried to sue to get them to pay.


Why should punitive damages be excluded from insurance coverage?  The costs of punitive damages should not be passed along to the general public.  The punishment effect of punitive damages should not be diluted by being able to pass them along to your insurer.  Why should we allow punitive damages to be covered by insurance?  We should not impede the right of private individuals to collect the benefit of the bargain from existing contracts with insurance companies.




What is negligence?  (1) A duty to exercise reasonable care under the circumstances, (2) a breach of duty, (3) causation (cause-in-fact/“but for” causation and proximate/legal cause) – evidence that the breach of duty caused damages, and (4) the damages themselves, which must be actual, not presumed from the fact of the tort.


Damages for negligence: (1) Lost wages, (2) medical expenses, (3) pain and suffering (amorphous, the target for tort reform), and (4) future losses (not related to your inability to work or medical expenses).  Pain and suffering are the meat and potatoes of tort practice.


Blyth v. Birmingham Water Works Co. The defendants are negligent only if they fail to do what a reasonable person would have done or do something a reasonable person would not have done.  It’s an amazing frost!  Is there negligence?  The court says no because the frost was not foreseeable.  One may not be found liable for negligence unless you fail to do something a reasonable person would have done, or do something that no reasonable person would have done.  You don’t build water mains to withstand a once in a lifetime event.


Duty is what a reasonable person does under the circumstances.  Reasonableness is based on the circumstances: (1) Foreseeability of harm, (2) feasibility of protecting against harm, (3) costs of precautions, and (4) availability of alternatives.  The Hand formula provides another way to think about reasonableness: is a certain precaution efficient under the circumstances?  If the probability of a certain harm is very low, it may not be economically efficient to take precautions, even if after the fact we know it would have been good to prepare for that harm.


According to Hand, you must consider whether the burden of adequate precaution is less than the expectation value of the loss (probability of the loss times the actual value of the loss).  Scholars say that the only truly quantifiable term in this equation is the cost of the precautions.  The plaintiff must prove that there is a solution that would have prevented the harm.  There are a lot of different ways to prevent harm.  The formula is just guidance to help us decide whether conduct was reasonable under the circumstances.  It’s not a hard and fast rule.


The Hand formula


United States v. Carroll Towing Co. – If no one is working on a barge and the barge causes injuries to others, is the owner of the barge liable?  Learned Hand says that the owner’s duty depends on three variables: (1) How likely is it that the barge will break away from its moorings?  (2) How big an injury did it cause?  (3) How expensive would precautions be?  If the expense of precautions is less the expectation value of the injury, then the court will conclude that the owner had a duty that was breached.


How does foreseeability play into reasonableness?  Reasonable people foresee harm.  Reasonable people only take precautions against harms that are foreseeable.  You can only take precautions against foreseeable harms.  If we know someone is negligent, we hold them responsible for all the foreseeable harms from that negligence.


Davison v. Snohomish County – Was the county negligent in failing to install guardrails that are capable of preventing a car from leaving the road?  As a matter of public policy, we want roads to be built and maintained, and thus we cannot require safety measures that would make roads generally unaffordable.  In this case, you must weigh the cost of making roads 100% safe against the benefit of having any roads at all.


The reasonable person


A reasonable person takes precautions against foreseeable harm.  The first question, therefore, is: ex ante, was there foreseeable harm?  Even if there was foreseeable harm, there still may be a finding of no negligence.  If we feel that it’s not feasible to take the precaution and thus protect against the harm, we may let you off the hook.  This is both a cost question and a technology question.


What a reasonable person does is weigh the costs and benefits of a particular action.  Reasonableness requires preparations for normal circumstances.  The reasonable person considers the alternatives available to prevent harm.  Reasonable people adhere to community norms.   Being reasonable is relative to the community in which you live.  That means that we do not start with a blank slate.  There are matters of common knowledge we expect reasonable people to know and hazards we expect reasonable people to take into account.


The reasonable person standard is an objective rather than a subjective standard.  An objective standard is clearer and better defined.  It creates an incentive for people to discover what the fixed standard of care is.  An objective standard provides precedent for future cases.  On the other hand, an objective standard is more demanding of the defendant.


On the other hand, if the standard is subjective, there’s a problem of notice because it’s impossible to find out just what is expected of you in particular.  If you use a subjective standard, each case is basically a whole new case that can be decided any way you want.




Custom is not dispositive of what reasonable behavior is.  It can be evidence of negligence or the lack thereof, but it’s not the end of the story.  It may be that compliance with custom is sufficient, but if the court thinks the custom itself isn’t reasonable, you can still lose.


Trimarco v. Klein An “accepted practice” can be shown to be a “legal duty”.  Does the custom require the landlord to replace the glass?  The custom seems to be that “when it breaks, you fix it”.  What do we learn about custom from this case?  (1) The custom must show evidence of negligence.  (2) The custom must be directly on point.  (3) Sometimes we may use custom, while other times we will use B < pL.


Custom can cut both ways: the judge will decide whether custom evidence comes in.  If it gets in, it will usually resolve the case against the defendant if it shows that the defendant did not comply with custom.  If the defendant did comply with custom, the defendant may not get off the hook if the custom itself is negligent.  Custom does not set the standard of care.


If there is a custom, we shall assume it is relatively easy and cheap to comply with; that is, we assume that customs don’t arise unless there are substantial dangers to be avoided.


Physical impairments


Physical impairments are treated differently than mental impairments.


Roberts v. State of LouisianaThe blind concessionaire bumps into an old man who sues the state of Louisiana, which employs the blind guy.  Even though a physical impairment may not be observable, we will take it into account.  A blind person must act as a reasonable blind person would do under the circumstances.  Having physical ability that is superior means you must exercise your abilities.


What if the plaintiff is intoxicated and is harmed?  That’s a decision that you make.  You may be negligent if you don’t adhere to the reasonable person standard while drunk.  We don’t want to encourage people to argue intoxication, and some would argue that we think drinking to get drunk is an anti-social behavior.




Generally, children are judged against other children of like age.  The only time we don’t follow that rule is when a child engages in an adult activity.  Some courts will hold children engaged in an adult activity must satisfy the standard of care of a reasonable adult.  Other courts find that children only must satisfy this standard when they participate in an inherently dangerous activity.


Why a different standard than adults?


Robinson v. Lindsay – Billy Anderson was riding a snowmobile and he was pulling a girl on an innertube.  The girl lost her thumb and she sues the owner of the snowmobile.  Should a child be held to an adult standard of care?  The trial court in Robinson said no.  The appeals court says that children must be held to an adult standard when they are doing something inherently dangerous.


When children act like children, they should be judged as children.  But when they act like adults, you should hold them to an adult standard of care.  Or, when they engage in inherently dangerous activities, the court may hold a child to an adult standard of care.


Can I, as an adult, adapt my behavior so that a child doing an adult activity won’t harm me?  In other words, can you tell who is engaged in the activity?


For example, if a nine-year-old drives a car and gets into an accident, to what standard shall we hold him to?  You may argue that driving is an inherently dangerous activity because we can’t tell who is driving the car.  You also may argue that the child should be held to a child’s standard.




What’s the standard for people with mental disabilities?  It’s the reasonable person under the circumstances standard.  We want to compensate plaintiffs.  Also it’s hard to prove whether someone is insane or not.  Also, potential plaintiffs may have trouble telling just who is insane or not insane.  Mental capacities are not treated as exempting circumstances.  You will always be held to the reasonable person standard.  In general, the insane do not get very good treatment if they commit a tort.


There is no jurisdiction that would rule that if you know you’re insane, and you get on the road, you’re not liable.  How is this different from heart attacks, strokes, and so on?  Well, you can’t prove that you had a sudden bout of insanity, and we don’t want to have to sort out the truth of insanity pleas.  We leave that to the criminal courts.  It’s hard to distinguish true incapacity from mere poor judgment.


Is it fair to treat people with mental impairments one way and people with physical impairments differently?  This is a practical decision derived from the fear of false claims.  The court does not want to get into the business of distinguishing real from fake mental impairments.  On the other hand, we will bend over backwards not to interfere with the independence of a person with a physical disability.  We’re not too concerned, however, that someone with a mental disability is liable every time.


Professional standards of care


The objective standard is “the typical reasonable person under the circumstances”.  The professional standard is different than that.  The standard of care used in cases involving professionals is acting with the knowledge, training, and skill of an ordinary member of the profession in good standing.  The standard for doctors is not what a “reasonable doctor” would do.  Professionals get a different standard of care: it’s what an ordinary member of the profession in good standing would do.


Heath v. Swift Wings, Inc. – The issue was whether the jury instruction was correct in this negligence case.  The controversy was whether the pilot, Heath, should have been held to the standard of a reasonable pilot in general or a reasonable pilot similar to Heath.


Hodges v. Carter – Attorney malpractice claims have been more successful than teacher malpractice claims, but they are still tough.  We don’t want to tie the hands of attorneys against making any decisions.  But what are the requirements?  (1) You must act with the knowledge and skill of an ordinary person in your profession.  (2) You mustn’t fail to use reasonable care and diligence.  (3) You mustn’t fail to exercise your best judgment in attending to your work.


Medical malpractice


Boyce v. Brown – Basically, this is a case where it appears the cure was worse than the sickness.  But is it negligence?  Custom is important to the determination of a medical malpractice case.  It’s almost dispositive in such cases.  In most areas, custom alone is not evidence, but in medical malpractice, it is feared that juries don’t know enough to decide if malpractice happened.  We’re not sure if this is a fair result.  Outside of the medical profession, custom is not controlling or necessarily even admissible.


Is it logical to think that doctors get a slightly better standard for themselves because they have professional obligations that prevent them from setting a lower standard to serve other interests?  Do doctors have an incentive to collectively lower their standards to keep from being liable?  In other professions, we do not allow their own custom to state the standard.  Why don’t we do that with doctors?  Should doctors be given more freedom?


Morrison v. MacNamara Should the defendant be subject to the local standard of care or the national standard of care?  The defendant must exercise the “degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances”.  The locality rule says that doctors should only be measured against other doctors in their community.  This court abandons the locality rule for the first time in this jurisdiction.  The court rules that nationally certified medical professionals should be held to the national standard of care.


Informed consent


Informed consent has three different standards: (1) The reasonable doctor standard (the majority standard), (2) the reasonable patient standard, and (3) the subjective patient standard (small minority).


In a “reasonable doctor” jurisdiction, a doctor testifies as to what doctors would do.  In a “reasonable patient” jurisdiction, it’s a little trickier because it’s hard to contemplate such a thing as a “patient expert”.  In this case, you use a “reasonable man” or “reasonable person” standard.  The so-called “subjective patient standard” says that the patient can say what they would have said and it’s up to the jury to consider the credibility of the plaintiff.


Only material risks must be divulged.  But how can you judge this?  Do you judge material risks by the subjective view of the patient?  The patient might say that “this would have been a material risk to me”.  Or, on the other hand, we may set an objective standard and ask what would constitute a material risk for a reasonable patient or doctor.  So the questions are: (1) Is this a material risk?  (2) Would the patient have agreed to go through with the procedure if this risk had been disclosed?  The material risk must be something that really matters to the health of the patient.  Can we quantify “material risks”?  In determining materiality, it matters both the probability of the risk and the gravity of the possible harm (think of pL in the Hand formula).  The doctor must provide information about alternative treatments as well as the risks of non-treatment.


The strict locality rule has been largely abandoned.  Some jurisdictions use a rule that says doctors can be judged against doctors in a similar community under similar circumstances.  Other jurisdictions use a national standard of care, especially when the doctor in question is nationally certified.


Exceptions to informed consent: (1) You don’t need to tell the patient anything the patient knows or should know.  (2) You don’t need to disclose information that would be detrimental to the overall best interests of the patient.  (3)  You don’t need to disclose in an emergency situation where consent is impossible to obtain.


Moore v. The Regents of the University of California – Does a physician have a duty to inform the patient of his economic interest in a particular course of treatment?  A physician must tell the patient if he has personal interests that may affect his professional judgment.  If he fails to do so, he may be liable for malpractice based on breach of informed consent.


Automobile guest statutes


There used to be legislation that prevented private passengers (i.e. not cab fares) from suing drivers in an accident.  The theory was that this was necessary to prevent insurance fraud.  Ultimately, these statutes were found unconstitutional because they treated some people differently than others.  The importance of these statutes is a demonstration of “negligence plus”, “aggravated negligence” or “gross negligence”.


If you drive negligently and you get into an accident, no punitive damages will be allowed.  However, if you drive negligently and are drunk, this could be “negligence plus”, and you could be subject to punitive damages.


Automobile guest statutes – Guest statutes are where legislation prohibited passengers from suing drivers of the vehicles in which they were guests.  The thinking was that guests and drivers would likely conspire to bilk insurance companies for money.  Guests couldn’t sue drivers for negligence, but could sue for negligence plus.  These statutes are unconstitutional, but these statutes helped define extreme negligence or willful or wanton misconduct, which could get you punitive damages.


A classic example is where you’re driving carelessly and you’re drunk.  That would be an example of “negligence plus” and could amount to “wanton or willful misconduct”.


Rules of law


Pokora v. Wasbash Ry. Co.Did the plaintiff meet the legal standard of duty when he approached the railroad crossing?  The existing rule was that a driver must stop, look, and listen, as well as get out of his car and look around if necessary.  This Court limits the rule by saying that this plaintiff had no such duty unless he could have safely stopped such that he could have gotten out and looked around.  The Supreme Court suggests that questions like this should go to the jury.  The Court is willing to hear evidence of what is customary, and that’s good information, but it is not dispositive to the case.  The jury will hear evidence in cases like this of whether the rule was right in a given case or if it doesn’t really apply correctly.


Negligence per se


Negligence per se sets up two elements of the negligence cause of action: duty, and breach of duty.  The judge makes the determination of whether a particular statute applies based on what harm the statute was designed to prevent and who it was designed to protect.


Negligence per se satisfies the “negligence” part of the negligence formula.  You still need to prove causation and damages in order to win.  To test for negligence per se, you must find out what injury a criminal statute is intended to prevent and who you’re trying to protect from that injury.  If the plaintiff is actually the person you were protecting and suffered the injury you were trying to prevent by the statute, then you’ll have negligence per se.  On an exam, make sure to put these questions down and answer them.


You must convince the judge to adopt the statute to set the standard of care.  The judge must consider whether the statute describes behavior that is what a reasonable person would do under the circumstances.  Then you just have to show causation and damages.  If the statute applies, you may consider as the defendant whether there are any excuses from the Restatement you can use.  If the statute doesn’t apply, that doesn’t mean the claim will automatically be dismissed.


The majority rule is that an unexcused violation of statute is negligence per se.  This is the majority rule.  Other jurisdictions may argue that an unexcused violation of statute is a rebuttable presumption of negligence.  This is the minority rule.  This will likely include the Restatement excuses.  Very few jurisdictions merely accept violation of statute as evidence of negligence.  Evidence of negligence means that it is evidence; it is some information to the jury that the defendant was negligent.  But it is not the whole story; rather, it is just evidence for the jury to weigh.


Factors to consider for negligence per se: (1) Does a common law duty prohibit this conduct?  (2) Does a statute clearly define the prohibited conduct?  (3) Does application of negligence per se yield strict liability?  (4) Will liability result in financial ruin that is disproportionate to the seriousness of the defendant’s conduct?  (5) Did the injury result directly or indirectly from violation of the statute?


The Restatement excuses: (1) The violation is reasonable because of the actor’s incapacity.  (2) The actor neither knows nor should know of the occasion for compliance.  (3) The actor is unable to comply after reasonable diligence (impossibility defense).  (4) The actor is confronted by an emergency not due to his own misconduct.  (5) If the actor complied, greater risk of harm would result.


Is it negligence per se when a child violates a statute?  Say the child jaywalks.  Should the child be judged as an adult?  The child may be able to make the argument that the child doesn’t have the capacity to know.  The child would also be judged on a child’s standard rather than an adult standard.  The child’s standard would be lower than the adult standard.


Why have negligence per se?  (1) It would be weird for a court to approve conduct as reasonable if it violates a criminal statute.  (2) If the legislature sets the standard of care, you don’t need the jury to say what behavior is reasonable.  In other words, there is better evidence of society’s views on what behavior is reasonable and unreasonable.  (3) Negligence per se also deals well with cases of recurring conduct.  If certain statutes will be treated as the standard of care, society will be on notice of how they have to act in order to be considered reasonable.


Should the absence of a required license, by way of negligence per se, automatically make you liable for any harm you cause?  Courts won’t accept the absence of a license as negligence per se, but it can be used as evidence.  It’s dangerous to say that the licensing statute sets the standard of care, because the license may not have anything to do with how good the person is at their profession.  Legislatures can circumvent this presumption.


Ney v. Yellow Cab Co.What was the intent of the statute?  Did the violation of the statute cause the injury, or did the act of the thief intervene such that the violation was not the proximate cause?  A standard of conduct established by statute will be adopted when, among other things, it is designed to protect against the harm that actually resulted.  Note that you won’t be held responsible for a tort if an intervening criminal act actually causes the harm except when the criminal act is foreseeable.


Perry v. S.N. and S.N. The absence of an equivalent common law duty should be considered when decided whether negligence per se applies to the statute in question.  Beyond this, there are a variety of factors a court may consider in deciding whether to create a new legal duty.


Res ipsa loquitur


Res ipsa loquitur is a doctrine that applies to cases when there is little doubt that the defendant is at fault.  For example, barrels don’t just fall by themselves in the absence of negligence.  Res ipsa loquitur shifts the burden of proof to the defendant by saying “this doesn’t happen unless there’s negligence”.  Res ipsa loquitur is intended to cure the unfairness of the defendant’s superior knowledge.  However, it’s a double-edged sword and it could result in actually creating unfairness.  Res ipsa loquitur is a last resort claim.  Only rare cases trigger res ipsa loquitur.  If you have direct evidence in regard to the alleged negligence, you don’t need and won’t get res ipsa loquitur.


Three factors for res ipsa loquitur: (1) The accident does not happen in the absence of negligence.  (2) The defendant had exclusive control of the instrumentality that caused the injury.  (3) The plaintiff has done nothing to contribute to his or her injuries.  Note that all three of the elements must be present in order to use a res ipsa loquitur theory at trial.


Ybarra v. Spangard Usually, you can’t do res ipsa loquitur when there are multiple defendants.  However, we are sympathetic to Mr. Ybarra because it seems there is no other way for him to recover and because the defendants have such superior knowledge.  What’s the problem with multiple defendants in a res ipsa loquitur case?  You can’t prove which particular person was negligent.  What other problem do you have?  You can’t prove which instrumentality caused the injury.  The plaintiff has no information at all.


These are the defenses: (1) There are lots of defendants.  (2) There are lots of instrumentalities.  (3) The control of the instrumentality that caused harm is uncertain.  Therefore, as a consequence of having many defendants, it is hard to prove the element of exclusive control.


The real justification is that we feel that the defendants have superior knowledge and we want to use res ipsa loquitur to “smoke out” the defendants and make them testify.


Burden of proof in res ipsa loquitur


Res ipsa loquitur – three views of burden of proof: (1) Res ipsa loquitur creates a permissible inference of negligence: the jury can say “we agree with you and find for you” or “we disagree with you and find against you”.  (2) Res ipsa loquitur creates a rebuttable inference of negligence that the jury can reject: the defendant must affirmatively rebut the inference.  (3) Res ipsa loquitur shifts the burden of proof to the defendant: the defendant has to prove that they didn’t do it.




Actual causation


Actual or but-for causation asks the question: Did the defendant’s negligent conduct cause the plaintiff’s harm?  But for the negligent conduct of the defendant, the plaintiff’s harm would not have occurred.  We don’t want defendants to be negligent; however, we won’t hold them liable if the harm would have happened either way.  If the accident would have happened even in the absence of the defendant’s negligence, then the defendant is off the hook.  In some sense, the defendant caused the accident, but it’s not their negligence that caused the accident.  Just because someone caused something doesn’t mean that it’s their fault.  On the other hand, we may hold some defendants liable if their negligence significantly increases a risk.


Perkins v. Texas and New Orleans Ry. Co. Was the train’s excessive speed the actual cause (cause-in-fact) of the collision?  You can’t sue for negligence unless such negligence was an actual cause of the harm.  Negligence is an actual cause if it was a substantial factor in bringing about the harm.


Gentry v. Douglas Hereford Ranch, Inc. Were the defendants negligent as a matter of law?  There must be proof of causation in order for a negligence action to lie.  Furthermore, mere speculation or suspicion is not enough to “sustain an action or to defeat a motion for summary judgment”.  There may well be faulty stairs in this case, but were they the actual cause of the accident?


Reynolds v. Texas & Pac. Ry. Co. “[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.”  How much is the likelihood of falling increased by no lights and no handrails?  This is the operative question for the jury.  They find that this increase is significant.  The jury finds that, more likely than not, the lack of lights and railing caused the accident rather than the weight of the plaintiff.


Kramer Service, Inc. v. Wilkins Was the hotel’s negligence the actual cause of the skin cancer?  The plaintiff must prove as an element of the negligence cause of action that the defendant’s negligence was the actual cause of the harm done to the plaintiff.  How is this case different than Reynolds (the fat lady falling down the steps)?  It could be argued that not lighting the stairs is far more likely to cause a fall than a cut could cause cancer.  There is an expert testimony issue here: the plaintiff’s expert says that there may be causation, while the defendant’s expert says there is no causation.


Wilder v. Eberhart The plaintiff had her stomach stapled.  Her esophagus was injured.  She sued for medical malpractice.  The plaintiff’s experts said that the injury could have only been caused one way.  The defendant’s experts were going to say that there may be other possible explanations.  The court did not allow the latter testimony, focusing on the idea that the explanations are only possible.  You can’t let the plaintiff control the case by having an expert who is willing to say that “this is the way it happened” and thus short-circuiting the defendant’s opportunity to explain alternative causes.  The explanation does have to add up to a rebuttal of the plaintiff’s case.


Loss of chance


You can recover for increased risk of harm.  If you can establish by expert testimony that your risk of some harm is increased by a certain percentage, you can recover for that.  It’s really hard to prove, though.  You can either show that (1) the harm was more likely than not, or (2) there was a loss of the chance that the harm would be avoided (less than 50%).


Under the traditional rule, you must show at least a 50% loss of likelihood of life.  Under the rule of Herskovits, you can partially recover for a less than 50% loss of likelihood.  In order to sue under the “loss of chance” theory, the “loss of chance” must be substantial: it can’t be 1% and probably can’t be 5%. 


How do you calculate the damages?  You could multiply the “loss of chance” times the full damages.  In some jurisdictions, on the other hand, it’s up to the jury.  Still other jurisdictions say that the chance lost is precisely the loss that should be awarded.


Scientific testimony


Daubert v. Merrell Dow Pharmaceuticals, Inc. This case deals with what expert testimony we will allow in negligence suits.  This case supercedes an older rule that came from Frye: Expert testimony must be based on scientific principles that are generally accepted in the scientific community.  Under the new Daubert rule, the trial judge must be satisfied that the scientific knowledge is (1) helpful to the jury and (2) derived from a decent scientific method (based on “good grounds”).  This is a pretty broad standard.  A trial court judge is the gatekeeper.  If he or she doesn’t let in the scientific evidence that the plaintiff or defendant want to present, it will have an impact on proof of causation.


The Supreme Court also gives some factors to be taken into account: (1) whether the theory or technique is generally accepted, (2) whether the theory has been subject to peer review, (3) whether the theory can be tested, and (4) whether the error rate is acceptable.


Concurrent causes


The biggest problem with but-for causation is having two causes acting at the same time.  When two negligent forces act at the same time, how do you figure out liability?  How do you establish that either one is the but-for cause?  When separate acts of negligence combine to produce a single injury, each tortfeasor is liable even though neither act alone would have caused the injury.


If you have two forces acting at the same time and both forces are the possible cause, you just sue both and sort it out later.  When two separate acts of negligence combine to produce a single injury, each tortfeasor is liable even though neither act alone would have caused the injury.


Substantial factor test


The “but for” test doesn’t work when two actors are negligent and act at the same time.  When you have two negligent actors or one negligent actor and one “innocent force”, you must use the substantial factor test to figure out who is at fault.  In cases like this, the “but for” test fails.  What constitutes a material or substantial factor?  What do we mean by material or substantial?


Anderson v. Minneapolis St. P. & S. St. M. R.R. Co. Say there is a negligent actor and an innocent actor.  A fire that was started negligently by the defendant combined with a fire of unknown origin.  Is the railroad liable?  Is the defendant’s fire a “but for” cause of the plaintiff’s injury?  Clearly no.  We don’t know which fire did it, so how do we decide who to hold responsible?  In this case, the defendant is found 100% responsible.


There are some alternatives to charging the defendant with the full liability.  The Restatement allows apportionment between the defendant and the innocent cause.  The defendant can argue that he should be, at most, 50% liable for example.


Summers v. Tice Can both defendants be held liable when only one was in fact responsible?  Both defendants may be held liable if both were negligent.  This is a very important case that is followed throughout the country.  Summers is a theory of alternative liability.  The burden of proof shifts to the defendant if: (1) Each defendant is shown to be negligent, (2) the actual wrongdoer is one of the defendants, and (3) the nature of the accident makes it impossible to prove negligence either way.  The Summers theory is universally accepted.


How can the plaintiff win in a case like this?  The court decides to shift the burden of proof to the defendants.  How does the court justify this?  If they don’t shift the burden of proof, the plaintiff will be without a remedy.  Compare this situation to the one in Ybarra, where there was asymmetric information between the plaintiff and defendants.  However, you can distinguish this case from Ybarra because the two hunters aren’t working as a team.  There’s more reason to shift the burden when the defendants are acting in concert.


If we force the defendants to fight each other, they might come forward with information they would otherwise be unwilling to provide.  There are several reasons to shift the burden of proof to the defendants.  The view is that, as in res ipsa loquitur, defendants have better access to information and they will be better able to establish, for example, which bullet hurt the plaintiff.  We know these defendants were both negligent.  We know that the defendant who didn’t hit the plaintiff is still culpable in some sense because they were responsible for obscuring the evidence.


Sindell v. Abbott Laboratories The plaintiff alleges that DES caused her to get cancer.  The plaintiff sued five drug companies that represented 90% of the market, but the plaintiff can’t prove which manufacturer made the particular DES that the plaintiff’s mother took.  The trial court dismisses the action and the plaintiff appeals.


There are several possible theories: (1) The Summers theory shifts the burden to the defendants if all the defendants are found to be negligent.  (2) The companies worked together in a conspiracy to sell a dangerous drug.  (3) The theory of enterprise liability says that if the plaintiff can show by the preponderance of the evidence that all the defendants are before the court and that one of the defendants manufactured the DES then the court will shift the burden of proof to the defendants.  (4) The theory of market share liability says that all the manufacturers would be held liable, but only in proportion to their market share in the drug.


In this particular case, not all of the defendants are before the court, so we can’t use enterprise liability.


Why should there be liability in Sindell, according to the court?  (1) We shouldn’t let wrongdoers off the hook and leave the innocent without relief.  (2) The court claims that defendants are better situated to bear the cost or risk of harm.  (Cole thinks this is a little bogus.)  (3) We should deter other companies from selling dangerous drugs by raising the specter of liability down the road.


In DES cases, the theory of market share liability is used.  All the manufacturers of a substantial share of DES are brought before the court.  Each defendant is liable for the portion of the judgment that is proportional to their market share unless the defendant can rebut the connection between their particular drug and the harm done.  How is market share liability different from Summers?  In market share liability, you don’t have all of the defendants in front of you.


Proximate causation


Actual causation is usually very easy to prove, but we’re not going to hold defendants liable solely on this basis.  We only want to hold defendants liable when we think they could have foreseen or prevented the harm they caused in some sense.


The rationale for proximate cause is that we’re trying to change defendants’ behavior.  We should only hold defendants responsible for harm that they could reasonably foresee, with some exceptions and limitations.  What kinds of harm might I reasonably expect to occur if I am negligent in a particular way?  The goal of the law is to keep individuals from acting unreasonably.  However, people can’t change their behavior to avoid freak occurrences.


Ryan v. New York Central R.R. Co. Is the owner of a burning building liable to the owners of adjacent buildings?  Everyone is liable for the proximate (immediate) results of their own acts.


Proximate cause sometimes limits liability basically on the basis that the defendant could not possibly pay for all the damages.  The theory is that it doesn’t really benefit anyone for companies to go bankrupt.  This doctrine is surely open to criticism, but it is one that is applied frequently.


Bartolone v. Jeckovich Can the defendant be held liable for aggravating the plaintiff’s pre-existing psychological condition through his negligence?  A defendant must “take a plaintiff as he finds him” meaning that the defendant is responsible for any harm resulting from the aggravation of a pre-existing illness.  This is similar to the “eggshell skull” or “thin skull” rule of intentional torts.  How do we justify the “eggshell skull” rule?  (1) It’s easier to administer than a foreseeability scheme.  (2) The accident victim can get full compensation.  (3) The law places a very high value on life.


Proximate causation asks whether liability should be limited to foreseeable consequences of negligence.  If a physical injury is foreseeable, the defendant is liable even if the consequences of the physical injury are out of line with one’s expectations.  This is known as the “thin skull” or “eggshell skull” rule.  This gives the defendant extra incentive to act reasonably under the circumstances.


Direct causation


In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. The defendants will only be held responsible for the proximate (i.e. not too remote) results of their negligence.  If the breach of duty and damage to the plaintiff is the direct result of defendant’s negligence, then the defendant will be liable.  It doesn’t matter what is foreseeable as long as something is foreseeable.  If the defendant is negligent, he will be liable for any harm that is directly linked to his negligence.  Under this case, you have liability no matter how remote the consequences of one’s negligence are.  The rule of this case is tough on two actors acting very close in time.


The Polemis test is: (1) Was the defendant negligent?  (2) Was the defendant’s negligence a direct cause of the damages?  This is no longer the current test, but it is important to know.  It is an alternative to the foreseeability analysis of Wagon Mound and Palsgraf.  What can be said for this rule?  It’s easy for a judge to apply and it’s easy to predict what will happen in court.


Foreseeable consequences


Wagon Mound No. 1 – The new rule is that there is no liability for unforeseeable consequences, even if the defendant actually caused them.  The defendant wins!  Note the difference from the old rule: under the direct causation theory, if the plaintiff is not negligent, then the defendant must be liable.


Economic harm is treated differently from ordinary damages.  Sometimes we won’t hold someone liable if it would be impractical.  Generally speaking, we won’t hold a defendant liable for the pure economic harm of their negligence unless that harm is very closely related to the negligence.  Instead, the court adopted a new test: Ex ante, before the accident happens, what would a reasonable person foresee as the kinds of harms that might occur stemming from that negligent conduct?  An explosion due to a negligently carried plank is not foreseeable harm.  Thus, by the rule of Wagon Mound No. 1, Polemis would have gone the other way.


Wagon Mound No. 2 – This case, according to Cole, is driven by what the engineer should have known about the risk of oil on water catching on fire.  What’s different about this case is the lawyering.  The lawyer brings forth evidence that something like this has happened before, and thus the engineer should have been aware that this was a possibility.  Another difference between the cases is that the plaintiffs will not be barred from recovery by their own negligence.  This case makes it very difficult for a defendant to avoid liability.  The defendant loses.  Compare this case to Carroll Towing.


In Wagon Mound No. 1, you can look at the circumstances surrounding the accident to find out if the risk was really foreseeable.  Wagon Mound No. 2 comes out a different way based on different lawyering.


Typically, you would think that the risk of spilling oil would be fouling the dock, but not burning it.  You have to draw the line somewhere.  But if all you have to claim is economic harm, you’re very unlikely to recover under foreseeability analysis.


If you say that one of the foreseeable risks of doing X is Y and Y actually somehow occurs, then you’ll have liability.  It doesn’t matter how it happens as long as we could foresee that it would happen.


Palsgraf v. Long Island R.R. Co. Cardozo finds that the defendant has no duty to the plaintiff related to falling scales.  Cardozo says that she is an “unforeseeable plaintiff”.  Andrews gets more into the causation issue.  This case introduced the concept of the “zone of danger”.  If you’re within the “zone of danger” created by the defendant’s negligent conduct, then the defendant will be liable for your harm.  Andrews would like to see liability for the natural consequences of the defendant’s negligence.  The Andrews view is not the dominant view.  Many people are concerned that there are many potential plaintiffs who are not allowed to recover under the majority rule that ought to be able to recover.


Proper incentives are created if the defendant is found not liable in this case because there’s no way to get the railroad to change their behavior with respect to people they can’t foresee.  Reasonable people will try to foresee the risks of their activities and avoid risks that may harm foreseeable plaintiffs.


Kinsman – A ship was set adrift by a current, which was a foreseeable intervening force.  The ship was carried downstream, where it struck and collapsed a bridge.  The collapse caused the river to flood, damaging the plaintiff’s factory on the riverbank, which was an unforeseeable result.  The foreseeable damage to the plaintiff’s factory was having it get hit by the runaway ship.  It turns out, however, that the defendant was liable for the flooding.  The defendant doesn’t have to pay damages to all of the people who suffered purely economic losses due to the bridge being out.  This is a matter of public policy.


Intervening and superceding causes


Yun v. Ford Motor Co. Did the defendants’ negligence constitute the proximate cause of the harm to Chang?  The defendant shall not be found liable when a superseding cause other than the defendant’s negligence is responsible for the harm.  Chang was negligent in deciding to risk his life to recover a tire.  He had plenty of viable alternatives, such as calling the police to help them retrieve the tire.


Derdiarian v. Felix Contracting Corp. – Was the conduct of the construction company the proximate cause of the plaintiff’s harm?  The defendant will not be held liable if the intervening act of the third party is not a foreseeable consequence of the defendant’s negligence.


Why is Derdiarian suing the contractor?  He wasn’t an employee of the contractor, but rather a subcontractor.  Why doesn’t he sue the subcontractor instead of the general contractor?  You can’t sue the subcontractor because you can’t sue your own employer under worker’s compensation statutes.


What risks are created by the failure to make the workplace safe?  There is no barrier, so there is a risk that a car might come into the workplace.  That in fact happened.  It does not matter that it happened due to an epileptic seizure.  The precise manner in which an event occurs need not be anticipated, so long as the harm is the harm which we expected.


The car entering the work site is a foreseeable intervening cause.  A reasonable person would put a barrier up at the work site to prevent this foreseeable act.


Watson v. Kentucky & Indiana Bridge & R.R. Co. What risks were created by the negligent spilling of the oil?  There might be the risk that someone will slip on oil.  Someone might negligently drop a match on the ground.  However, intervening criminal acts of a third party are seen as unforeseeable.  The exception to the rule is when you foresee that criminal activity might happen.  In that case, the criminal act is not a superseding cause, but a foreseeable intervening act.


Intervening forces are foreseeable by a negligent person.  Superceding forces are not foreseeable by a negligent person.  This is just a matter of labels (like “penalty” versus “liquidated damages”).  If you could have foreseen an intervening force, you’ll be liable for it, even if the manner in which it comes about in an unexpected way.  Sometimes, we’ll cut off liability because the intervening force is so unforeseeable that we actually call it a superceding force.


Fuller v. Preis It is argued that traumatic organic brain damage created the irresistible impulse for Lewis to commit suicide.  Basically, the plaintiff argues that Lewis went insane because of the car accident.  Does suicide break the chain of proximate causation?  In a minority of jurisdictions, it does unless you prove that it was an irresistible impulse.  In other jurisdictions, suicide is always a superceding cause that breaks the chain of causation.




If a defendant owes a duty to someone, they usually also owe a duty to any other person who comes to the rescue of the person in danger.  “Danger invites rescue.”  It’s foreseeable that rescuers will come along when you create a danger.  As a matter of policy, a rescuer can take some risk in conducting a rescue.


McCoy v. American Suzuki Motor Corp. McCoy stopped to help somebody who crashed in a Suzuki.  He got hit by another car.  He sues the manufacturer of the car that crashed.  The allegation is that a defect in the Suzuki Samurai caused it to crash which caused him to stop and rescue the driver which caused him to get hit by a car on the highway.


Rescuers are well-treated by courts because public policy encourages them.  However, rescuers must still prove proximate cause.  Rescue is highly valued by the law.  Courts will work hard to get cases brought by rescuers to a jury.  Even people who rescue people from suicide can bring suit against the person who attempted suicide.  Part of the deal with rescue is public policy.  We want to encourage rescue.  You can rescue property as well as people.


Enright v. Eli Lilly & Co. This is a DES case.  The grandmother took the drug, the mother had reproductive problems, and the daughter had birth defects.  Is that foreseeable?  What if we know that the daughters of pregnant women who take DES will have reproductive problems?


Is there proximate cause here?  The court decides as a matter of policy not to look at multi-generational effects.  So this question isn’t resolved in the case, but it could be important.  Cole is not convinced that there is necessarily a connection between DES and the granddaughter’s cerebral palsy.


Why does the court cut off liability at the second generation?  The court doesn’t want liability to get out of hand.  The court talks about the FDA as an alternative way to encourage drug safety.  The court seems to say that if the FDA says a drug is OK, the court will not step in as much.  The court is also concerned with over-­­deterrence.  Drugs have a greater value to society than other goods, but they also inherently carry risks.  We want to favor the development of new drugs, even though this creates risks for the people that take them.


Social host liability


What are the arguments in favor of social host liability?  It forces social hosts to be responsible when they’re serving guests in their own homes.  It may prevent drunk driving.  We want social hosts to recognize when guests are intoxicated and shouldn’t be given any additional alcohol.  We want to make sure that victims are compensated.  A drunk driver might not have enough money to compensate the people they injure.  With social host liability, you have another pocket to pick to get money for the victim.  We want to deter drunk driving.  Also, social hosts are already liable for serving alcohol to minors.  Licensees are also liable under the Dram Shop Act.  The court suggests that they have “surrounded” the social gathering situation with liability, and so it’s not such a big step to, in effect, “fill in the gap”.


What are reasons not to have social host liability?  Well, how can a social host know what a visibly intoxicated person looks like?  It puts a burden on social hosts that they may not be in a position to bear.  On the other hand, a bartender has enough experience to know when to stop giving people drinks.  On the other hand, there’s a possibility that you could serve someone who is drunk more alcohol and become 100% liable for the harm they cause (under joint and several liability) if the drunk person doesn’t have any money.  Some would say that fault should lie with the drunk driver.  Also, sometimes a social host is drinking, unlike a bartender.  A social host also will have difficulty in preventing a guest from departing.  Commercial establishments are more likely to have insurance to cover liability than private people.  In that way, the businesses can spread the costs of potential liability to their customers by raising prices.  We also don’t want to inhibit social gatherings!  The dissent says that those are important!  We say that there is a public policy in favor of gathering together.  It’s hard to know when you’re a social host what lengths you should go to in order to stop a drunken guest.


Failure to act


There is no duty to take affirmative action unless: (1) The actor has, with or without fault, caused the harm or the risk of harm.  (2) The actor took affirmative steps to aid another.  (3) The actor has a special relationship with the other person.


Hegel v. Langsam – Does a university have a duty to keep its students out of trouble?  A university must maintain law and order on campus, and no one may contribute to the delinquency of a child.  Why, on the other hand, was the university held liable for a rape in one of its dorms?  This is sort of like landlord liability.  There is a difference when the university asserts control over an area.  The cases can be reconciled because the students can’t take care of themselves, but the university can take steps to protect them.


L.S. Ayres & Co. v. Hicks – Did the defendant have an obligation to rescue the plaintiff?  When an injury to an invitee results from the use of something under the invitor’s control, the invitor has a duty to assist the invitee, or else the invitor will be liable for any aggravation of the injury resulting from their failure to intervene.


Tarasoff v. Regents of the University of California What did the psychotherapist allegedly fail to do?  The psychotherapist had the duty to warn a third party of a possible harm from another.  After Tarasoff, how would a psychotherapist’s behavior change?  One of the alleged risks of this case is the overprediction of dangerousness in order to avoid liability.  But that might have other consequences.  Therapists said that they didn’t really want to be therapists if they had to tattle all the time instead of help their clients.  They say that confidentiality helps therapists do their job.  The goal is candor.


Contributory negligence


Originally, contributory negligence was a complete defense to negligence.  This is not a defense to intentional torts.  If potential plaintiffs go looking for negligent situations and throw themselves in to try to get money, you need a policy to prevent that from happening.  To prevent this, we’ll adopt the contributory negligence doctrine.  We want to discourage people from being careless.


Butterfield v. Forrester – This is the first appearance of the contributory negligence doctrine.  The jury found for the defendant on a contributory negligence theory.  One judge said that if the plaintiff had used ordinary care, he could have avoided the accident entirely, and therefore, it is argued, the plaintiff is entirely at fault.


Some judges think that if the plaintiff is the last actor and has the last choice, they should be held fully responsible for their own injuries.


Last clear chance


If a helpless plaintiff meets a negligent defendant, and you can show that the defendant had a chance to prevent an accident, then the plaintiff will not be barred from recovery.  This is a limitation on the harsh contributory negligence doctrine.  Contributory negligence will bar the plaintiff’s recovery unless the jurisdiction adopts the doctrine of last clear chance.  This doctrine is kind of like a band-aid on contributory negligence, as opposed to comparative negligence, which is major surgery to contributory negligence.


Davies v. Mann – A “helpless plaintiff” garners a lot more sympathy because you can’t do anything, and you have to depend on other people avoiding an accident.  It’s more likely that the last clear chance will be invoked when the plaintiff has put himself into a hopeless, helpless position.  Then the defendant has the last chance to stop the accident.  This doctrine is a check on contributory negligence.


What’s the role of last clear chance in a comparative negligence jurisdiction?  It doesn’t have any real effect.  However, you would argue to the jury if you were a plaintiff that the plaintiff wasn’t negligent because the defendant had the last clear chance to prevent the accident and that therefore the jury should apportion the damages more heavily to the defendant rather than the plaintiff.  Last clear chance educates you on figuring out apportionment of liability.


If the plaintiff is inattentive, the plaintiff doesn’t recover under last clear chance when the defendant is also inattentive.  If the plaintiff is inattentive and the defendant discovers the plaintiff’s peril, the plaintiff can recover.


Comparative negligence


Under this doctrine, the defendant is only liable for the portion of the harm the defendant actually causes.  Ohio is a comparative negligence jurisdiction.  This supercedes contributory negligence.


There are three kinds of comparative negligence jurisdictions:  (1) Pure comparative negligence: a plaintiff can always recover; they will just have their recovery reduced based on what percentage of the negligence they are responsible for.  (2) Modified, 50% jurisdiction: The plaintiff can recover if the plaintiff was 50% responsible or less for the accident.  In other words, the plaintiff’s negligence must be equal or less than the defendant’s negligence.  (3) Modified, 49% jurisdiction: The plaintiff can recover if the plaintiff was 49% responsible or less.  In other words, the plaintiff’s negligence must be less than the defendant’s negligence.


Assumption of the risk


This doctrine says that if a person is actually aware of a risk and knowingly decides to encounter it, then that person accepts responsibility for taking that risk.  If you’ve ever participated in a dangerous physical activity, you probably signed a release, like if you bungee jumped.  The proprietor of the bungee jump wants you to sign a release so he doesn’t get sued.  “This is a more a contract law thing than a tort thing in a sense.”  The rationale behind this is that people should have the freedom to do dangerous and stupid things if they want to.


In some jurisdictions, assumption of risk has been abandoned, but it can be used as a method of apportionment of damages.  Another way of explain assumption of risk is by saying there was no duty between this defendant and this plaintiff.  We can either say that the plaintiff has assumed the risk of the defendant’s negligence, or else the defendant had no duty to that plaintiff.


Express assumption of risk


Winterstein v. Wilcom Is the agreement by the plaintiff to assume the risk enforceable?  Parties are permitted to contract out of duty of care as long as the bargaining is “free and open” and the agreement doesn’t affect the “public interest”.  Courts don’t like exculpation clauses, but they will enforce them.


There is an exception to express assumption of risk.  If there is no alternative to the plaintiff, or if it’s an essential service, then we’ll grant an exception.  There is a way out of express clauses, but it’s a high obstacle to overcome.


Implied assumption of risk


The defendant has the burden of proof to show that the plaintiff had actual knowledge of a particular risk.  This is a subjective test: did this particular plaintiff know of this particular risk?  The defendant also must prove that the plaintiff appreciated the magnitude of the risk and that the plaintiff voluntarily encountered the risk.  Even when this has been subsumed into comparative negligence, courts will still use this doctrine.


Rush v. Commercial Realty Co. – The rule of this case is that the plaintiff does not voluntarily assume a risk if the defendant is providing a necessary function and there are no reasonable alternatives.


Primary versus secondary assumption of risk


The only true assumption of risk is secondary assumption of risk.  Primary assumption of risk is not a defense.  Primary assumption of risk is a situation where the plaintiff didn’t properly prove duty, but somehow it got to the defendant anyway.  With secondary assumption of risk, the defendant breaches a duty to the plaintiff, but then the plaintiff, perceiving the risk, proceeds anyway.  The key for understanding assumption of risk is understanding the specificity of the risk you’re assuming.  Part of assumption of risk is a cost-benefit analysis.


Joint tortfeasors


Bierczynski v. Rogers The court finds that the drag racers were acting in concert.  What does this mean in terms of who pays?  They will be jointly and severally liable.  If one defendant is insolvent, you can get the whole amount of the judgment from the other defendant.  Once you have concerted action, the parties are both liable.  What is required in order to say that there is concerted action?  You need evidence that the parties are acting in concert.  If X and the defendant are strangers but the defendant was encouraging X, it could go either way.


Joint and several liability


Joint and several liability has historically been the way to hold joint tortfeasors liable.  In general, courts have either kept joint and several liability or abandoned it after adopting comparative negligence.


Why do we have joint and several liability?  We want to plaintiff to be fully compensated.  Also, we think that injuries are indivisible and we don’t know how to apportion liability among the defendants.  We also worry about the financially insolvent defendant.  We also think the defendant is more at fault than the plaintiff.


Why not have joint liability?  Why should we make one defendant be the insurer of another defendant?  Why should one defendant pay just because he’s unlucky that he’s the only solvent defendant?  We also may be over-deterring behavior: we will make defendants take excessive care.  A solvent defendant, having very little responsibility for the harm (like 1% liability) may have to pay the entire judgment.


Joint and several liability is a target for tort reform.  It is claimed that it punishes defendants too heavily for their negligence.  A conservative viewpoint would be to eliminate joint and several liability while personal injury lawyers and trial lawyers want it.  There will continue to be a lot of changes made by legislatures in the future.




No contribution is allowed between intentional wrongdoers.  Contribution exists between defendants who are jointly liable.


Knell v. Feltman There doesn’t need to be a joint judgment against two people who are negligent in order to enforce contribution.


Yellow Cab Co. of D.C., Inc. v. Dreslin May there be joint liability between Mr. Dreslin and the cab company as to Mrs. Dreslin?  Non-immune defendants can’t seek contribution from immune defendants.  Dreslin is found not to have to contribute to Mrs. Dreslin’s judgment because she’s his wife.  Dreslin isn’t liable to his wife because he has spousal immunity.  What is the issue?  Immunities have been abrogated by most jurisdictions.  The case turns on the fact that the Dreslins can’t sue each other.  You can’t recover from your spouse.  There used to be other kinds of immunities too.


What happens if one tortfeasor settles and the other one doesn’t?  Someone who is liable for only a little percentage of the harm could be hit up for a lot more if one of the other defendants settles or is insolvent.  This encourages settlement.  The alternative view is that you just pay for your share.  The risk of a low settlement goes to the plaintiff instead of the non-settling defendant.


Liability for subsequent injuries


Bruckman v. Pena – Defendant #1 is not liable for damages from an accident caused by defendant #2 where defendant #2 is a distinct cause.  If the injury is indivisible, all defendants are liable.  If the plaintiff was already injured, the second defendant is liable for the harm caused (mitigated by the plaintiff’s condition).  The plaintiff’s condition is a jury question.


Michie v. Great Lakes Steel Division, Nat’l Steel Corp. – The jury won’t be able to apportion liability between the three defendants.


Dillon v. Twin State Gas & Electric Co.Everyone agrees that the boy was negligent and that the electric company was also negligent.  But how should we allocate liability?


Damages can be reduced in situations where someone already has some existing condition.  If you kill someone with cancer, they’re already likely to die, and so their damages are likely to be reduced.  The value of someone’s life is to be measured by their anticipated future earnings and other factors.


Statute of limitations


Why have a statute of limitations?  There’s a possibility of lost evidence and witnesses forgetting.  The statute of limitations for intentional torts is typically two years, and for negligence it’s three years.  The idea is that you should know what happened to you and be able to articulate a case for damages shortly thereafter.


But there’s just some point at which you just can’t sue anymore.  It lets defendants get on with their lives.  The statute of limitations doesn’t mean a trial has to start at any particular time.


Teeters v. Currey – The issue is when the statute of limitations clock starts to run.  Usually, the clock starts with the injury.  The old rule was that the clock starts running from the time of the injury.  On the other hand, the new rule is that the clock starts running when you find out about the injury.  Also, the statute of limitations doesn’t start running until you become an adult.  This is part of the discovery rule.


What if you discover an injury but not who caused it?


The test of when the clock starts ticking is when you know or when you should know, but how should we decide when someone should know?


Statutes of repose cut off discovery rule filings beyond a certain point.


Landowner liability


Outside the premises


To what extent are you liable to people off your property for things that happen off your property?  You should check the trees in your yard every once in a while.  There’s a different duty in an urban area than in a rural area. There is no liability for natural conditions, or there is a duty of reasonable care.


Artificial versus natural conditions


The court places a lower duty of reasonable care with respect to static artificial conditions than with respect to moving artificial conditions.


The more active the conduct and the creation of the risk the more likely it is that the court will make you responsible for it.


Generally, people can use property the way they like.


Categories of entrants onto land


There are three categories of entrants onto land that we’ll deal with: (1) trespassers, (2) licensees, and (3) invitees.


We’ve talked about invitees the most.  Trespassers are entrants who have no right to be on property.  Usually, there is little or no duty to them.  Once a trespasser is known, you have a duty to inform them about dangerous conditions on your property that wouldn’t otherwise be obvious.


Licensees are like social guests.  Generally, you only have a duty to warn them of dangerous conditions they are unlikely to discover on their own.


Invitees are people who come into a business or another place that’s open to the public.  The highest duty of a landowner is to an invitee.


The general rule for trespassers is that there’s no duty to an undiscovered trespasser.  Notice how this is reminiscent of the “last clear chance” rule.


This is a “rule-oriented” part of the course.  Your duty to licensees and trespassers is less than the ordinary standard of care.  However, the standard of care that you are due invitees is precisely the ordinary reasonable standard of care.


Why should landowners have to duty to protect wrongdoers who are committing a tort against them?




Sheehan v. St. Paul & Duluth Ry. Co. You mustn’t wantonly and willfully harm a trespasser, even though there is no duty to an undiscovered trespasser.  Trespassers don’t get the benefit of last clear chance because they’re there wrongfully.  You do have a duty to warn known trespassers of artificial conditions that involve a risk of death or serious injury.




A licensee is one who enters land with the landowner’s permission, but for her own purpose or business rather than for the landowner’s benefit.  There is a duty to warn a licensee of dangerous conditions known to the landowner where he knows it creates an unreasonable risk of harm to the licensee, the licensee is unaware of the condition, and the licensee is unlikely to discover it.


The presumption that someone comes to your house for social reasons is a strong presumption.  Though there is a business aspect to this relationship, the social aspect seems to overwhelm the business aspect.  Courts will declare pretty much anything that happens at a house a licensee situation at best.  Homeowners shouldn’t have the burden of preparing for business visitors.




A landowner owes invitees the duty to use due care to inspect and discover the presence of any dangerous natural or artificial conditions as well as warn invitees of those dangers.  If by warning invitees you can make the condition safe, then you’ve fulfilled your duty.  However, if it’s still dangerous, your duty is not merely to warn, but to fix the problem.


You can within someone’s premises change from an invitee to a licensee or a trespasser.  If the plaintiff had just been a licensee instead of an invitee, the defendant may have still been liable.


Whelan v. Van Natta – The plaintiff is an invitee who turns into a licensee.  Your classification may change depending on what you’re doing and whether you’ve exceeded the scope of your invitation.  You might go from invitee to trespasser, even.  Some states reject these classifications.


Wilk v. GeorgesThe defendants knew that the floor was slippery and dangerous and put up signs to warn, but the plaintiff didn’t see the signs and slipped and fell.  The plaintiff is unquestionably an invitee.  The warning says that the floor is slippery.  Why doesn’t the plaintiff just recover, given that she’s an invitee?  It turns out that because there was an unreasonable risk of harm, the signs were not sufficient.


Rowland v. Christian – This case rejects the traditional categories of entrants to land.  Is it better to have clear rules that people are aware of and can condition their behavior on, or shall we determine this on a case-by-case basis?  This court decided to use your basic duty of reasonable care and the Learned Hand formula.  The rule of this case is that the landowner must use reasonable care regardless of the type of person who enters onto their land.


Child trespassers


If you have something on your property that’s dangerous but likely to attract children to come and play, you must make it safe.  It used to be that the child had to be attracted by the thing that hurt him (“attractive nuisance doctrine”).  If it’s foreseeable that children will trespass and encounter a dangerous condition, you must make the condition safe or you’ll be liable.


Firefighter rule


If rescuing is part of your job, the view is that you’re already compensated for the risk you take.  Therefore, you cannot additionally recover from the defendant unless the situation is unusual.  This is the “firefighters’ rule”.


We don’t know exactly what risks firefighters will encounter, so they’re licensees.  It’s too burdensome to have to have a landowner pay for the injuries of emergency folks.  Also, emergency people are, at least in theory, paid extra to compensate them for the extra risk.


Strict liability


With strict liability, all you have to show is causation.  If the defendant caused the plaintiff’s damages, then that’s it.  If the harm is not foreseeable from the defendant’s highly dangerous conduct, then the plaintiff won’t be able to recover.




For animals, there is generally not strict liability for domestic animals but there is for wild animals.  What justifies the different rules?  It’s another cost-benefit analysis situation.  Wild animals are risky to keep around because they may cause harm.  Taking extra precautions doesn’t really make much difference.  They will be dangerous no matter how many precautions you take.


What if a domestic animal shows a dangerous propensity?  Then there may be strict liability if that animal hurts someone.  One you know, you can’t really take precautions to prevent it unless you lock up the animal.  This is a matter of what the owner of the animal knows.  The “one-bite” rule doesn’t exist per se, but basically what it means is that after they bite once, you’ll be liable for any injury that follows.


With strict liability for animals, the whole notion of treating domestic animals differently than wild animals forces the owner to consider whether it is reasonable or smart to keep wild animals at all.


Is this just negligence in disguise?  We have an activity with low value relative to the risk it creates and the harm caused if that risk came to fruition.  Keeping a dangerous domestic animal is not a valuable activity to society, while it is has a high risk of a great harm.  That’s why we’ll just shorthand it in some sense and make it an activity for which we impose strict liability.


Abnormally dangerous activities


Abnormally dangerous activities are unusual and usually involve great danger.  There are three factors that restate the B < pL test.  Is it really dangerous?  It is unjustifiably dangerous?  Is it common to the area?  Is it being done in the wrong place?  Does the activity has value to the community?


Rylands v. Fletcher This is the origin of the “ultrahazardous activities” rule.  A guy built a water reservoir that ended up flooding his neighbor’s coal mine.  Prior to building the reservoir, what did he do?  Did he do anything in preparation?  They’re building a reservoir and fail to notify the defendant that there’s a problem.  They continue to dig the reservoir.  Water leaked slowly into the mine and eventually flooded the mine.  Why does it matter that water seeped into the mine rather than rushing into the mine?  Was this direct harm?


Blackburn says that there is liability for anything brought on land that is likely to do mischief if it escapes.


What does non-natural use mean?  It means something you don’t normally use the property for.  It means some unusual use of the land that society doesn’t find valuable.  Non-natural means “it shouldn’t be happening here”.  It’s a hard activity to do safely.


Bridges v. The Kentucky Stone Co., Inc. – Is storing dynamite so dangerous that the company should be per se liable?  The court says we have to judge on a case-by-case basis.  Does this case look like a strict liability case?  What would the rule be in Indiana after this case?  The court says they will look for negligent behavior.  Use of dynamite is always an ultrahazardous activity.


Some factors that go towards labeling activities abnormally dangerous: There is a high degree of risk of harm.  There is a high likelihood that the resulting harm will be great.  It’s impossible to eliminate the risk by using due care.


Some factors that go towards determining strict liability:  Was it common, customary, or appropriate to engage in this activity at this location?  Was the value of the activity to the community outweighed by its dangerousness?


Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. – American Cyanamid hired a transporter to ship a dangerous chemical through Chicago.  Due to the transporter’s negligence, the chemical leaks.  The question is whether American Cyanamid should be held strictly liable.  What’s the difference between this case and the ballooning case mentioned in the opinion?  In the ballooning case, the question was of the balloonist’s activity.  Posner suggests that the appropriate activity for the railroad yard is switching train cars, but that it’s not appropriate to live there.


Could the courts just say that shipping chemicals through a populated area is negligent?  It would probably result in less shipping of that kind of liquid.  These factors are characterized as a version of cost-benefit analysis.


When you think about strict liability, think about what the risks are that are anticipated.  The result must be within the risk anticipated.  It’s sort of a foreseeability thing.  Strict liability in torts is rather limited.  There are certain activities that will require a factor analysis.


Vicarious liability


Sometimes one person can be held responsible for the activity of another.  Sometimes people are concerted tortfeasors.  Sometimes A creates a risk that B will negligently cause an injury.


Respondeat superior


There are a few factors that may be considered when you’re figuring out whether an employer should be vicariously liable for the employee’s conduct: (1) It is of the kind he is employed to perform.  (2) It occurs substantially within the authorized time and space limits.  (3) It is actuated, at least in part, by a purpose to serve the employer.  (4) If force is intentionally used by the servant, the use of force is not unexpected by the master.  That is, intentional torts are typically not covered.


Why do we have vicarious liability for employers?  Employers might reduce the number of accidents if held liable.  We want to spread the costs of the plaintiff’s harm through the community.  The employer has control of the employee and arguably should be liable for the tort.  Also, the employer has deeper pockets than the employee.  If the employee does not act within the scope of his employment, then the employer can’t be held responsible for the employee’s acts.


Why vicarious liability?  There’s a “deep pocket” rationale: employees don’t have a lot of money, but employers do.  Cole doesn’t like this rationale.  It doesn’t seem fair to go after an entity which didn’t do anything wrong in itself.  Also, the employer is benefiting from the activities of the employee.  Therefore, it is argued, the employer should bear some responsibility for the employee’s actions. The employer can buy insurance and spread the cost by raising prices.  The employer also has control of the employee.  These are some rationales for imposing vicarious liability on the employer.


Coming and going


Lundberg v. State Should an employer be held responsible for its employee’s negligence?  An employer will be liable for the negligence of an employee if the employee was acting under the scope of his employment, that is, when the employee is doing something under the control of the employer and in furtherance of his duties to that employer.  Generally, however, driving one’s car to and from work is not considered under the control of the employer.


The biggest issue is scope of employment.  Sandilands is an employee of the state of New York.  He stays near his job site and goes home to Buffalo on the weekends.  When you go to and from work, generally, the employer is not responsible.  Part of the reason is the risk of excessive liability.  There is an exception, however, which is that if your car is part of your job, you are in the scope of your employee after you leave your last appointment and before you arrive home.


Normally, there is no liability for traveling to and from work.  However, there are exceptions where such travel is within the scope of employment: when they have to go a long distance or when the travel has a dual purpose (like when you stop to eat lunch in a postal vehicle).  If you can come up with a reason that the travel benefits the employer, it is easier to avoid the coming and going rule.


Fruit v. Schreiner What’s within the scope of employment?  If the employer tells the employee to do something safely and fails to do so, but it’s in the scope of employment, the employer may be held liable.  It’s a factual question for a jury.


What about intentional torts on the job?  Unless the intentional tort is within the scope of that individual’s employment (a bouncer or security guard), the employer isn’t responsible.  These torts are not seen as furthering the interests of the employer.


We also won’t impose vicarious liability in the situation where an employee abuses his power as conferred by the employer.  It depends on how far outside the scope of employment the employee goes.  Some courts will say that if the employer created the power that is abused by the employee, the employer may be responsible.  So there’s a split.


Independent contractors


Independent contractors are different from employees.  It is favorable to get your employees described as independent contractors for various reasons.  Vicarious liability only applies to employees and not independent contractors.  How do you know who’s an independent contractor?  It’s a factored test.  You look at the Restatement factors and weigh whether, on balance, the person is more like an independent contractor or more like an employee.  The main factor is control: how much control does the employer have over the person?  The more control they have, the more likely we’ll find that the person is an employee.


Here are the rules: (1) How much control does the employer have over the details of the work?  (2) Is the actor engaged in a distinct occupation or business?  (3) Does the employer have to supervise?  (4) Who supplies the tools and place of work?  (5) How long is the person employed?  (6) Are they paid by the hour or to do a particular job until complete?  (7) How do the parties understand the relationship?


Murrell v. Goertz Goertz was making collections for newspaper delivery and had an altercation with the plaintiff, eventually hitting her.  She sued him as well as the publishing company that published the newspaper.  She won against Goertz, but the trial court gave summary judgment to the publishing company on the basis that Goertz was employed by an independent contractor, and thus the employer wasn’t responsible.


Is the newspaper responsible for the injury caused to Murrell?  What degree of control does the newspaper have over Goertz?  The publishing company doesn’t even know Goertz works for them.  They appear not to have much control over Goertz.


Nondelegable duties


When a duty is imposed by law on the basis of concern for public safety, the defendant cannot avoid liability by delegating duty to an independent contractor.  Some categories of nondelegable duties include: work which involves inherent danger or which requires special precautions, activities that are highly dangerous, and duties established by statute to provide special protection to a particular class of persons.  Examples of nondelegable duties include crop dusting, poisons, explosives, fireworks, and high voltage lines in public areas.  Landowners are liable under the nondelegable duty doctrine for the work of contractors.


Maloney v. Rath – When you take your car to the mechanic and they don’t fix your brakes right, how come you are liable?  The court says that the duty to keep up your car is non-delegable.