Torts Final Outline

- Introduction
- Foundations of the common law
o Torts are against injuries of all sorts (accidental or intentional) and interested in
completed wrongs.
 Tort law is mandatory
o “Common law” means law common to all England, system of law that is
developed case-by-case instead of by statutes, and law of English-speaking world
o Goals of law of torts: (1) prevention of self-help, (3) retribution against
wrongdoers, (3) deterrence of wrongdoers, (4) compensation for victims of
wrongdoers.
o What students remember – tort narratives and tort structure patterns (how people
understand possibility and limits of the law)
o Procedural history is important in torts
o Remedies are compensatory, but can have a punitive element as well.
o Roberson v. Rochester (NY 1902) – Illustration of tort law and arguments to
create or not create a new cause of action based on a right to privacy. Overall, the
majority decides not to because he does not think that judicially made laws should
be created in the right to privacy.
 Statutes created afterwards were limited because they only applied to
living people and allowed a tort for using someone’s voice, but not a
crime.
 In California, statute provides right to commercial exploitation of a
likeness, using name, photo, voice, or likeness for commercial purposes.

- Foundation of “fault”
o Action of trespass – foundation of intentional tort – person alleged injury as
immediate result of some conduct
o Trespass on the case – results are merely consequential
o Squib case example – intro to fault and who is at fault
 A throws squib at B, B kicks it away as a reaction to C, C is injured.
 Is B the way that the item traveled through space? Or is B liable
for strict liability?
o The Case of Thorns (England 1661) – person cut off hedge that fell in neighbor’s
land. ∆ held liable for damage to land
o Weaver v. Ward (England 1616) – Accidental killing/shooting is not a felony, but
it is a tort.
o Brown v. Kendall (Massachusetts 1850) – Dogs were fighting. ∆ attempted to stop
them by hitting them with a stick and π stood where he was and did not move
when dogs came closer. ∆ appealed jury instructions about the act of beating the
dogs rather than both sides reasonable care. Court ruled that π must show either
that intention was unlawful or that ∆ was at fault. Lower court should have given
∆’s jury instructions that the standard should have been ordinary care, meaning
the kind and degree of care that a prudent or cautious man should take. Π cannot
recover without showing the ∆ was wholly responsible for injury.

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  Rule – burden of proof – whether directly proved or inferred from
circumstances, if it appears that ∆ was doing a lawful act and
unintentionally hit the π, then unless the ∆ can be charged with some
fault/negligence/carelessness/want of prudence, π fails to sustain burden of
proof.
- International Torts
- “Intent” and “Reckless”
o Intent
 Restatement (Third) § 1- Person acts with intent to produce consequence
if: (a) person acts with purpose of producing consequence; or (b) person
acts knowing that consequence is substantially certain to result.
 Must act with purpose to produce harm, not just do the activity (i.e.
shoot a gun or swing a golf club)
 Purpose to cause harm makes harm intentional even if it is not
substantially certain the harm will occur
 Knowing that result may occur even if you don’t want it to can
also be an intentional tort. Without knowledge of possible result,
intentional tort cannot happen.
 As possible victims become vaguer, substantial certainty test
becomes less persuasive.
 Deliberate choice is necessary.
 Transferred Intent – if you hurt A when you meant to hurt B, there is still
an intentional tort
 Must intend harmful or offensive contact – Restatement (2nd) § 19 – must
offend “reasonable sense of personal dignity”
 Rule isn’t if ∆ thought contact was offensive, but if ∆ thinks π will
find it offensive. Offensiveness is determined by objective test.
 Those with unusual sensibilities have burden of proving that
touching was a battery if it was normal to expect the touching.
 If person knows that touching will be offensive, he may be found
liable.
 If the touching is a battery, then the ∆ is liable for all injuries that occur
even if intended injuries were only minor.
 Intent ≠ motive – motive can be honorable and intent to touch can still
create a battery.
 Communication shows intent (i.e. Twitter)
 Garret v. Daily (Washington 1956) – 5 year old took away chair from old
person (aunt) to seat himself. Originally, found not liable because court
found that the boy did not know his aunt was sitting down. Second time,
he was found liable because it was found the boy knew his aunt was sitting
down and was substantially certain that aunt would fall.
 Beauchamp v. Dow (Michigan 1986) – Agent Orange case. Adopts
“substantial certainty” test for employers. If employer is substantially
certain that an activity will cause an injury, the employer is deemed to
have intended injuries as well. This is a greater standard than substantial
likelihood.

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  MI legislature responded by narrowing the scope and making a
“deliberate act” necessary.
 Restatement (Third) § 5 – Actor who intentionally causes physical harm is
subject to liability for that harm
o Reckless
 Restatement (Third) § 2- Person acts recklessly in engaging in conduct if:
(a) person knows of the risk of harm created by the conduct or knows facts
that make the risk obvious to another in person’s situation, and (b)
precaution that would eliminate or reduce risk involves burdens that are so
slight relative to the magnitude of the risk as to render the person’s failure
to adopt the precaution a demonstration of the person’s indifference to the
risk.
 “gross negligence” and “willful and wanton misconduct” are
typically used here.
 Person must either have knowledge of the danger or have
knowledge of facts that would make danger obvious to anyone in
actor’s situation.
 The more probable the harm, the greater the overall magnitude of
risk created by actor’s conduct. High probability is not always a
necessary condition, not is it always sufficient
 Torts is about liability, not guilt.
 Jackson v. Brantley (Alabama 1979) – Horses went astray and when
returning the horses, ∆ brought them on the road and a car hit a colt.
Alabama had a statute that did not find person liable unless the person
knowingly or willfully put livestock on public highway. ∆ was found
liable because he intentionally took the horses on the highway to get the
home. Hoping that a car would not hit the colt was not enough to prevent
liability.
 Π’s negligence is not a proper defense for an intentional tort.
o Scope of Liability for Intentional and Reckless Tortfeasors
 Restatement (Third) § 5 – Scope of Liability – limited to physical harm
 (a) actor who intentionally causes harm is subject to liability for
harm even if unlikely to occur
 (b) actor who intentionally or recklessly causes harm is subject to
liability for broader range of harms than harms which actor would
be liable for acting negligently. Degree of appropriate case is
important.
 (c) Notwithstanding (a) and (b), actor who intentionally or
recklessly causes harm is not subject for harm the risk of which
was not increased by actor’s intentional or reckless conduct.
 Expanded scope of liability for unintended harms – this is only for harm
factually caused.
- Quintessential intentional torts
- Battery and Assault
o Battery

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 Restatement (Third) § 13 – Battery: Harmful Contact – Actor is subject to
liability if:
 (a) acts intending to cause harmful or offensive contact with person
or third person, or an imminent apprehension of contact, and
 (b) harmful contact with person of the other directly or indirectly
results
 Restatement (Third) § 16 – basically, only offensive contact needs to be
intended, not the bodily harm that results. Intention to do action alone is
enough.
 Ex. of person who kicks another in the shin and person is greatly
hurt even though normal person wouldn’t.
 Transferred intent is also a part of this.
 Restatement (Third) § 8? – Battery: Offensive Contact
 (1) Actor is subject to liability to another for battery if
o (a) he acts intending to cause harmful or offensive contact
with person or 3rd person, or an imminent apprehension of
such a contact, and
o (b) offensive contact with person of the other directly or
indirectly results
 (2) Act without intention of (1, a) does not make actor liable for
mere offensive contact with other’s person although act involves
unreasonable risk of inflicting it, and would be negligent or
reckless if risk threatened bodily harm.
 Based on intentional invasion of person, not if person knew (ex. of
kissing while asleep or performing examination without
permission).
 Restatement (Third) § 19 – What Constitutes Offensive Contact
 “Bodily contact is offensive it if offends a reasonable sense of
dignity”
o No statement about if reasonable person would not find
contact offensive, but one person knows the other will find
the contact offensive.
 Masters v. Becker (NY S.C. (trial court) 1964) – Trial court erred by
instructing that jury must find that ∆ intended to injure. Only need to
prove intent to perform contact and that bodily contact occurred.
 Single intent jurisdiction – intent to only make contact
 Dual intent jurisdiction – intent to make contact and have it be
harmful/offensive.
 Consent could be an issue in some cases. Implied license on a
playground
o Limits of consent: can child consent?
 Brzoska v. Olson (Delaware S.C. 1995) – AIDS doctor case. Lack of
consent is essential element of battery. Fact that person does not discover
offensive nature of contact after the event does not preclude recovery.
Must be offensive to reasonable person. In this case, πs could not recover
because they could not show alleged offense was reasonable in absence of

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 being actually exposed to disease-causing agent. Without actual exposure
to HIV, risk of transmission is minute. Plaintiff must demonstrate “actual
exposure” to disease causing agent.
 Dissent said that whether contact is offensive is a matter of fact
instead of one of law, which court should not decide.
o Statistical data is not conclusive as a matter of law.
 Singer v. Marx (California 1956) – Little Timmy case. Infants are liable
for torts that they complete if they know that they can inflict injury. The
doctrine of transferred intent applies here because he hit one girl when
indicating that he was throwing something at a different girl on a bike. Not
all inferences have to be against ∆ just a preponderance of evidence.
 Timmy’s mom was also liable because she knew that he had
thrown rocks in the past. Dad was not though because he did not
know about tendencies.
 Not found vicariously liable just because they were his parents.
 Other Notes
 If person is asleep, there can still be a battery because person
would have found contact offensive if awake.
 Some have argued smoking should be a battery, but it has not been
held as one yet. (laser pointers are the same)
 If person knows that offensive touching may occur, but has
nothing against π, it still may be liable (i.e. motel manager renting
room with bedbugs to a person)
 Practical jokes do not get rid of liability
o Assault
 Restatement (Third) § 21- Assault
 (1) Actor is subject to liability for assault if:
o (a) he acts intending to cause a harmful or offensive contact
with person of the other or a third person, or an imminent
apprehension of such contact, and
o (b) other is thereby put in imminent apprehension
 (2) Action is not done with (1, a) intention does not make actor
liable for apprehension caused although act involves an
unreasonable risk of causing it and would be negligent or reckless
if risk threatened bodily harm.
 Only apprehension of harm must be proved. Only is against those
statements, which intend to cause bodily harm.
 Restatement (Third) § 22- Attempt Unknown to Other
 Attempt to inflict harmful/offensive contact or to cause
apprehension of such contact does not make actor liable for assault
if other is not aware of attempt before it is terminated.
 Ex. A stands behind B and points pistol at him. C overpowers A
and then B hears pistol go off for the first time. A is not liable to B.
 Restatement (Third) § 30- Conditional Threat
 If actor intentionally puts another in apprehension of imminent and
harmful/offensive contact, he is subject to liability for assault

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 although he gives the other the option to escape the contact by
obedience to a command given by actor, unless command is one
which actor is privileged to enforce by infliction of threatened
contact or by threat to inflict it.
 Ex. A breaks into B’s house. B is not liable if he says “you have
one minute to get out.
 Ex. A fires B and points a pistol at B saying, “you must get out
right now, or I will shoot you dead.” A will be liable to B.
 Restatement (Third) § 31- Threat by Words
 Words do not make actor liable for assault unless together with
other acts or circumstances, they put other in reasonable
apprehension of imminent harmful/offensive contact.
 Generally, need more than just words in one circumstance are
necessary to prevail on claim. Ex. saying you will shoot someone,
then later reaching for your pocket.
 Dickens v. Puryear (North Carolina S.C. 1981) – To be liable for assault,
an actor must put the other in apprehension of imminent contact. In this
case, the assault and battery claims would have been actionable, but they
were barred by the statute of limitations.
 However, threats can be actionable for intentional infliction of
emotional distress. The threat of harm and offensive contact was
actionable as IIED claim instead of action.
o IIED claims are in the general SoL provision for 3 years in
NC.
 Other Notes
 Tort of assault is not same as criminal assault
 Transferred intent doesn’t apply, but if one is mistaken about
identity and tries to cause apprehension in someone else, that is
still an assault.
 In an assault, ∆ must pay for all damages even if π is
hypersensitive. Must “take the plaintiff as he finds him” and is
liable for all actual damages.
o However, there is probably a limit (i.e. fire causing burns
after someone caused a sprained ankle).
- Insanity
o White v. Muniz (Colorado S.C. 2000) – Battery case. Old woman in elderly home
hit a woman and caused damages. Woman sued. Discussion of single intent
(person only has to intend contact) vs. double intent (intended contact and intent
to cause harm/be offensive). Court finds that Colorado has dual intent standard
and that ∆ is not liable because jury “looked into the mind of Everly”. The rule is
not special to elderly, but to someone with Alzheimers who did not know that her
contact was offensive. Only needs to intend harm, not the harm that resulted.
 This is the minority rule. Many cases have held insane people liable for
their tort under battery theory. See Williams v. Kearby (Kansas 1989).
Argued that insane should have to bear cost instead of injured.

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  Restatement (Second) § 895J states that one who is mentally deficient is
not immune from tort liability solely for that reason.
- Trespass to land or chattels
o Trespass on land
 Restatement (Third) § 158 – Trespass on Land
 One is subject to liability to another for trespass, irrespective of
whether he causes harm to any legally protected interest, if he
intentionally
o (a) enters land in possession of other, or causes thing or
third person to do so, or
o (b) remains on land, or
o (c) fails to remove from land a thing which he is under a
duty to remove.
 Privilege may be established if there is consent from the owner or
there is some other privilege to remain on the land.
 Notes
 Intent to commit trespass is quite minimal. Intent to enter the land
is not necessary.
o Mistakes do not prevent liability because of the high social
value traditionally placed upon private property.
o Accidents may prevent liability
 Privileged Entries Upon Land – consent is often implied.
 Variant Situations – someone might have been allowed on land,
but not to do something that they did (i.e. does not leave in
reasonable time).
 Extent of Interest Protected – airspace is now not part of a person’s
property, but tort of nuisance (interfering with quiet use of
property) may be allowed.
 Pretty common sense in the Restatement examples.
 Prima facie element: (1) intentional (2) entry (3) on land of another
 Difference between trespass and nuisance
o Trespass involves unauthorized direct or immediate
intrusion to owner’s property. Nuisance involves
interference with use and enjoyment over a period of time.
o Trespass involves entry of person or physical object while
nuisance involves more diffuse annoyances.
o Trespass incolves even trivial physical intrustions while
nuisance involves weighing interest of parties.
o Trespass is an intentional tort while nuisance can happen
without intending to affect property.
o Trespass may require injunction while nuisance may not
enjoin conduct.
 People may sue for injunctions only so that they can enjoy their
land
 Someone who causes another to trespass is also liable for trespass
(i.e. saying something to cause someone to go on another’s land).

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  Trespassers that are allowed to enter because of private necessity
still must pay for any damage to property that occurs.
 Trespass on land where another is growing wheat and it is
destroyed may result in trespass claims for farmer and person
growing wheat.
o Trespass to Chattels
 Restatement (Third) § 257 – Ways of Committing Trespass to Chattels
 A trespass to a chattel may be committed by intentionally
o (a) dispossessing another of the chattel, or
o (b) using or intermeddling with a chattel in possession of
another.
 Knowledge that meddling is violation of possessor’s rights is not
necessary. Mistake does not guarantee rights either. Privilege
requires only actor’s reasonable belief that necessary facts exist.
 “Intermeddling” means physical contact with chattel.
 Restatement (Third) § 218 – Liability to Person in Possession
 One who commits a trespass to a chattel is subject to liability to
possessor of chattel if, but only if,
o (a) he dispossess the other of the chattel, or
o (b) chattel is impaired as to condition, quality or value, or
o (c) possessor is deprived of use of chattel for substantial
amount of time, or
o (d) bodily harm is caused to the possessor, or harm is
caused to some person or thing in which the possessor has a
legally protected interest.
 Mistake doesn’t protect here either (ex. of police officer putting
execution on car for only an hour mistakenly is still liable for
nominal damages).
 Notes
 Reasonable belief that chattel is one’s own is not a defense
 Glannon talks about “conversion”, but I don’t think it is important
to us.
- Consent – defense to intentional tort
o Restatement (Third) § 892 – Meaning of Consent
 (1) Consent is willingness in fact for conduct to occur. It may be
manifested by action or inaction and need not be communicated to the
actor.
 (2) If words or conduct are reasonably understood by another to be
intended as consent, they constitute apparent consent and are as effective
as consent in fact.
 Silence or inaction can also constitute consent.
 Reasonable person must be able to understand apparent consent.
 Custom may also play an importance
o Restatement (Third) § 168 – Conditional or Restricted Consent
 A conditional or restricted consent to enter a land create a privilege to do
so only so far as the condition or restriction is complied with.

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  Cannot be on land for any other purpose. It is trespass if person
conducts himself in a different manner.
o Restatement (Third) § 169 –Consent Restricted as to Area
 A consent given by possessor of land to actor’s presence on part of the
land does not create a privilege to enter or remain on any other part.
o Restatement (Third) § 170 – Consent Conditioned or Restricted as to Time
 A consent given by possessor of land to actor’s presence on the land
during a specified period of time does not create privilege to enter or
remain on land at any other time.
o Restatement (Third) § 172 – Consent Obtained by Duress
 Consent obtained by duress upon possessor of land exerted by the actor, or
by third person to the knowledge of the actor, is not effective as consent to
entry.
 Ex. pointing a gun at someone and them consenting.
o Hellreigel v. Tholl (Washington 1966) – Battery case where 16 year old was
seriously injured in horseplay when he said, “Oh, you couldn’t throw me in if you
tried.” Court found that his words were invitation to continue to play and π’s son
never said to stop and only said he tried to get them off of him. Nature of the
setting is important and he consented to rough and tumble horseplay even though
he did not consent to having his neck broken. Further, hurting Dicka’s neck was
incidental, not intentional.
 If this was a negligence case, contributory negligence could bar the claim.
 Failed to establish prima facie case.
 Consent to criminal matters is contentious issue, but it has been
consistently held that consent is no defense for criminal prosecution.
o Mulloy v. Hop Sang (S.C. Alberta, appellate division 1935) – ∆ in motorcycle
accident requested for hand to not be amputated before he could get a second
opinion. Doctor said he would do what was necessary to which π did not respond.
Doctor amputated the hand anyway saying that blood poisoning made it
necessary. Court found doctor liable for battery because he may have been able to
go to another hospital and that π did not consent. (Court also said that it would
have been satisfied to pay the fee, but that he cannot ask ∆ to do the same thing.
This makes it potentially a subjective standard).
o Notes
 Restatement said that consent should operate to bar tort action under these
circumstances, but this is the minority position and there is a distinct split.
 In some cases, consent may not mater (i.e. minor consumption of alcohol,
minors having sexual intercourse, and safety regulations).
 Consent by fraud or duress or nondisclosure will not immunize someone
for liability.
 Liability for STDs is subject of much litigation.
 There is a split over whether actions outside the rules or general customs
of the game can count as intentional torts.
 Consent is assumed in absence of express instructions from patient or in
an emergency.
 Courts are not fond of ambiguous medical consent forms.

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  Most cases turn on adequacy of patient’s consent.
 In Jehovah’s Witness cases, courts have allowed patients to not consent to
blood transfusions. In some circumstances though, they have ordered
transfusions when the patients have young children who they don’t know
how they will be cared for.
 Competent, but terminally ill patients can refuse treatment
 If patient is incompetent, contentious issue is who has right to make
decision. Controlling issue is the wishes of the patient, but sometimes this
is hard to determine.
 NJ courts held more liberal thinking allowing patient to have life
support pulled when they were in a persistent vegetative state.
 Mizzou court was upheld by SCOTUS in judgment to require clear
and convincing evidence that incompetent wished to withdraw
treatment and due process did not allow substituted judgment for
family unless they had clear and convincing evidence that it was
patient’s wish.
 Terry Schiavo case was contentious where husband said that his
wife wished to die and her parents fought him.
 Courts can order essential medical treatment for mental incompetents or
children over the wishes of their parents.
 Some cases treat consent as an affirmative defense and some treat lack of
consent as part of prima facie case.
- Self-defense of person or property
o Person
 Restatement (Third) § 63 – Self-Defense by Force Not Threatening Death
or Serious Bodily Harm
 (1) An actor is privileged to use reasonable force, not intended or
likely to cause death or serious bodily harm, to defend himself
against unprivileged harmful/offensive contact or other bodily
harm which he reasonably believes that another is about to inflict
intentionally upon him.
 (2) Self-defense is privileged under condition stated in (1) although
the actor correctly or reasonably believes that he can avoid the
necessity of defending himself,
o (a) by retreating or otherwise giving up a right or privilege,
or
o (b) by complying with a command with which the actor is
under no duty to comply or which the other is not
privileged to enforce by means threatened.
 Use of self-defense must be reasonable and must not be
disproportionate to harm which actor is seeking to protect himself.
 Actor may stand his ground and repel the attack even if he might
avoid threatened bodily harm by retreating.
 If threatened attack is conditioned upon actor’s non-compliance
with demand made upon him, actor is not privileged to use force to
protect himself against attack so threatened, if demand is one with

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 which the actor knows or should know that he is under no legal
duty to comply and force which other threatens is no greater than
other is privileged to apply
 Restatement (Third) § 65 – Self-Defense by Force Threatening Death or
Serious Bodily Harm
 (1) Subject to subsection (3), actor is privileged to defend himself
against another by force intended or likely to cause death or
serious bodily harm, when he believes that
o (a) other is about to inflict upon him an intentional contact
or other bodily harm, and that
o (b) he is thereby put in peril of death or serious bodily harm
or ravishment, which can safely be prevented only by
immediate use of such force.
 (2) The privilege stated in (1) exists although actor correctly or
reasonably believes that he can safely avoid the necessity of
defending himself by
o (a) retreating if he is attacked within his dwelling place,
which is not also the dwelling place of the other, or
o (b) permitting the other to intrude upon or dispossess him
of his dwelling place, or
o (c) abandoning an attempt to effect a lawful arrest.
 (3) Privilege in (1) does not exist if actor correctly or reasonably
believes that he can with complete safety avoid the necessity of
defending himself by
o (a) retreating if attacked any place other than his dwelling
place or in a place which is also the dwelling of the other,
or
o (b) relinquishing the exercise of any right or privilege other
than his privilege to prevent intrusion upon or
dispossession of his dwelling place or to effect lawful
arrest.
 Reciprocal force is similar here because you can’t act to cause
death or serious bodily harm unless you believe the same could
happen to you.
 Restatement (Third) § 76 – Defense of Third Person
 Actor is privileged to defend a third person from harmful or
offensive contact or other invasion of interests of personality under
the same conditions and by the same means as those under and by
which he is privileged to defend himself if the actor correctly or
reasonably believes that
o (a) circumstances are such as to give third person a
privilege of self-defense
o (b) his intervention is necessary for protection of third
person.
 Lane v. Holloway (Britain CoA 1967) – Old man and young man fighting
case. Old man, Lane, yelled at young man, Holloway’s, wife and then

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 Holloway came down. Lane feared for himself and hit Holloway on the
shoulder and then Holloway caused a severe wound to Lane’s head. Court
ruled that Holloway hit Lane in a way that was out of proportion of the
necessary force and should have instead walked away.
 Silas v. Bowen – (USDC South Carolina 1967) – π came to ∆’s lot to have
his car fixed. Hours later, he came back saying it wasn’t properly fixed
and acted aggressively toward the owner who told him to leave. ∆ grabbed
his gun and π said he wasn’t afraid of guns and grabbed ∆ on the shoulder
and reached in his pocket. ∆ shot π in the foot by accident. The court ruled
that this could constitute as self-defense because ∆ used reasonable force
(which means that there is threat of bodily harm when a deadly weapon is
used), he believed that he or his family could be hurt while he was on his
property, and ∆ did not provoke the difficulty.
 Notes
 Key is reasonable belief that force is necessary.
 Majority of jurisdictions allow person to stand their ground when
subject to deadly force (contrary to Restatement’s view that only
allows it in the home).
 Two approaches to “mistaken defense of others”
o 1. Person has ability to act upon reasonable perception (i.e.
can defend if he thinks it necessary)
o 2. “shoe-stepping” approach – only privileged to help third-
party if the third-party was allowed to defend himself (this
is the minority position).
o Property
 Restatement (Third) § 77 – Defense of Possession by Force Not
Threatening Death or Serious Bodily Harm
 Actor is privileged to use reasonable force not intended or likely to
cause death or serious bodily harm, to prevent or terminate
another’s intrusion upon actor’s land or chattels, if
o (a) intrusion is not privileged or the other intentionally or
negligently causes the actor to believe that it is not
privileged, and
o (b) actor reasonably believes that intrusion can be prevent
or terminated only by force used, and
o (c) actor has first requested the other to desist and other has
disregarded the request, or the actor reasonably believes
that a request will be useless or that substantial harm will
be done before it can be made.
 Intrusion cannot be used as mere pretext to cause harm.
 Person who enters land to preserve chattel is liable for damage
done to land.
 If A harms the dock while his boat is in B’s dock, he is liable for
damages to B.
 Restatement (Third) § 84 – Use of Mechanical Device Not Threatening
Death or Serious Bodily Harm

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  Actor is privileged to employ, for the purpose of protecting his
possession of land or chattels from intrusion, a device not intended
or likely to cause death or serious bodily harm that he is not liable
for bodily harm done thereby to a deliberate intruder, if
o (a) use of such device is reasonably necessary to protect
land or chattels from intrusion, and
o (b) use of particular device is reasonable under the
circumstances, and
o (c) device is customarily used for purpose, or reasonable
care is taken to make its use known to probable intruders.
 Things like barbed wire and spiked fences may be used, but not
something subject to deadly force. Use of device must be
reasonably necessary.
 Use of undiscriminating device is justifiable only in capacity to
prevent intrusions. If used, there is a duty to warn.
 Restatement (Third) § 85 – Use of Mechanical Device Threatening Death
or Serious Bodily Harm
 Actor is so far privileged to use device intended to cause death or
serious bodily harm for purpose of protecting land or chattels from
intrusion that he is not liable for serious bodily harm where
intrusion is, in fact, such that if the actor were present, he would be
privileged to prevent or terminate it by intentional infliction of
such harm
 The privilege only extends to same extent that deadly force could
otherwise be used.
 Brown v. Martinez (New Mexico 1961) – Man shot boy in the leg by
accident (not aiming where he thought people were) when a group of boys
was stealing watermelons. Court used doctrine of transferred intent
because it seems like man is attempting to commit an assault, but instead
commits a battery. Deadly force cannot be used to protect property unless
threat of serious bodily harm is possible. It can be used to prevent felony if
there is no other way to prevent the felony, but court does not believe that
watermelon stealing is a felony or that the threat itself did not prevent the
felony. An actual felony committed and a necessity for killing to prevent
felony is necessary.
 Under no circumstance can deadly force be used to get property
back.
 Katko v. Briney – shotguns cannot be used to protect abandoned
land.
- Necessity, public and private
o Public Necessity
 Restatement (Third) § 196 – Public Necessity
 One is privileged to enter land in possession of another if it is, or if
the actor reasonably believes it to be, necessary for purpose of
averting imminent public disaster

13
  May be able to go on land because of impending disaster and he
may break into a dwelling. Not liable for damages due to
reasonable conduct, but unreasonable conduct once in property
may lead to damages that can be sued upon.
 Army does not need to pay for damages that were under reasonable
force.
 However, burning a building to get felons required compensation
by police unless the State could show “great public necessity”.
o Private Necessity
 Restatement (Third) § 197 – Private Necessity
 (1) One is privileged to enter or remain on land in possession of
another if it is or reasonably appears to be necessary to prevent
harms to:
o (a) actor or his land/chattels
o (b) other or third person, or land/chattels of either; unless
actor knows or has reason to know that one for whose
benefit he enters is unwilling that he shall take such action
 (2) Where entry is for benefit of actor/third party, he is subject to
liability for any harm done in exercise of (1) to any legally
protected interest of possessor of land or connected with it, except
where threat of harm to avert which the entry is made is caused by
the tortious conduct or contributory negligence of the possessor.
 This must be exercised at reasonable time or in reasonable manner.
Actor is liable for harm, but may use reasonable force to get on
land if necessary (i.e. canoe example where person tries to force
him off).
 Ploof v. Putnam (Vermont 1908) – πs tried to enter ∆’s dock during a
storm. ∆ had his servant unmoor the sloop and it was lost in the storm.
Court ruled that ∆ was liable for damages because necessity makes it extra
important during a storm to save human life. ∆ had a duty to allow πs on
the sloop in time of public necessity.
 *Vincent v. Lake Erie Transportation Co. (Minnesota 1910) – ∆’s
steamship was moored to π’s dock and needed to be there because of a
storm. However, damage happened to the dock. Court ruled that ∆ was
liable for damages to π’s property when ∆ protected its property by doing
so. Court said Ploof case would have had πs pay for dock if they had been
moored, but there is no evidence of this in that case.
 *Dissent said there was no fault if ∆ acted with due care and that
much harm takes place in business relationships and these should
absorb the costs. Docks are insurable and maybe the costs should
be through insurance.
 This is a contentious issue. Some courts have ruled that there is no
liability for private necessity. Restatement’s view has little
authority.
 Private necessity is less powerful than public necessity.
- Emotional Distress – Intentional – IIED

14
o Relook at Dickens v. Puryear
o Star v. Rabello (Nevada 1981) – π sued for her daughter saying that daughter
suffered NIED because she saw π assaulted. Court states that recovery on the part
of a third party witness to an outrageous act is permitted if the third party is a
close relative of the person against whom the outrage was directed (Restatement
2nd §46(2)). IIED is also called tort of outrage. Outrage is hard to meet when the
act has been directed against a third party. Further conduct need to be very
egregious (i.e. seeing others die and being forced to watch a suicide). Knowledge
of a witness’s weakened condition tends to increase outrageous nature of an act.
Ruled that in this case, π’s daughter was not entitled to IIED claim because the
assault was not sufficiently outrageous. Bystander claims cannot usually happen
unless targeted at the hurt person. Must be extremely outrageous (i.e. homicide).
o Snyder v. Phelps (SCOTUS 2011) – Westboro Baptist case. Picketed π’s son’s
funeral. Later π saw that funeral was picketed and suffered emotional distress. To
succeed in IIED claim, the ∆ must have intentionally or recklessly engage in
extreme and outrageous conduct that caused π to suffer emotional distress.
Whether ∆ is liable largely depends on whether the speech was public (protected)
or private (not protected). Public speech is on public issues and is more than self-
expression and relates to political, social or other community concerns. Private
speech is not of public importance. Court ruled that Westboro’s speech related to
broad issues and overall thrust is that Westboro’s demonstration is about public
matters. The Government can regulate Westboro’s speech, but in this case, the
church had a right to be where they were. The protest was not unruly. Only
distress was from what Westboro said. Westboro’s speech is immunized under 1st
A special protection. Outrageousness is not enough to impose liability on basis of
jurors’ tastes. Constitution does not permit the government to decide which types
of otherwise protected speech are sufficiently offensive to require protection for
the unwilling listener of viewer. Rather, the burden is upon the viewer to remove
their eyes. Holding is that Westboro’s speech is immunized under 1st A special
protection.
 Dissent – 1st amendment does not protect respondents’ right to brutalize
the plaintiff. IIED can occur if it was a time of intense emotional
sensitivity. This is a narrow tort that a plaintiff must show that harm was
truly severe (which he does). ∆s do not question evidence; they only say
that the 1st Amendment allows them to say what they wish. 1st A does not
preclude IIED claims.
o Restatement (Third) § 45 – Emotional Harm
o Restatement (Third) § 46 – Intentional (or Reckless) Infliction of Emotional
Distress
 An actor who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional harm to another is subject to liability
for that emotional harm and, if the emotional harm causes bodily harm,
also for the bodily harm.
 This is the outrage tort
 Person must act in a way that is extreme and outrageous
 This is a question of fact. Transferred intent applies

15
  Contemporaneous perception is not necessarily needed when child
is sexually abused.
o Notes
 Restatement (Third) § 46 does not have a specific reference to liability to
third persons in the black letter.
- Negligence
- Generally
o Restatement (Third) § 3 – Negligence
 Person acts negligently if person does not exercise reasonable care under
all circumstances. Primary factors to consider in ascertaining whether
person’s conduct lacks reasonable care are foreseeable likelihood that
person’s conduct will result in harm, foreseeable severity of any harm that
may ensue, and burden of precautions to eliminate or reduce the risk of
harm.
 Reasonable precaution may also be necessary (i.e. making sure to
step on brakes properly at stop light).
 Section sets up “risk-benefit” test where risk is foreseeable risk
created by actor’s conduct and benefit is advantages that actor or
others gain from taking precautions.
 Balancing approach rests on whether disadvantage of conduct
outweighs advantages.
o Actor can be negligent if severity of possible harm is great
and burden of precautions is limited.
o If likelihood of harm is high and burden of prevention is
limited, negligence may also occur.
 Ex. Power Company can be found negligent for not raising length
of power lines once boating became common.
 Likelihood must be foreseeable to actor at time of conduct.
 Foreseeability includes what the actor “should have known”
 Π has burden of proof by describing ∆’s conduct and identifying
precautions ∆ should have adopted.
o However, π does not have to proved that precaution would
have entirely eliminated risk of harm. Party can instead
prove that precaution would have reduced the risk and
would have prevented the particular injury of the π.
 Negligence law usually takes into account whatever burdens of
risk prevention are actually experienced by actor and others.
 Overall utility of the factor should be considered.
 Generally, it is assumed that actor is aware of risk and has
tolerated that risk on account of burdens involved by risk-
prevention measures.
 Jury is supposed to consider the particular factual situation.
 Actor can be negligent in not taking necessary precautions to
prevent damage from an Act of God if it is foreseeable (i.e.
earthquake in California or hurricane in Florida).
o Restatement (Third) § 6 – Liability for Negligence Causing Physical Harm

16
  An actor whose negligence is a factual cause of physical harm is subject to
liability for any such harm within the scope of liability, unless the court
determines that the ordinary duty of reasonable care is inapplicable.
 Prima Facie case for negligently caused physical harm
 1. Duty – question of law for court to determine. Actors normally
have to exercise reasonable care.
 2. Failure to exercise reasonable care – question of fact
 3. Factual cause – question of fact
 4. Physical harm – question of fact
 5. Harm within scope of liability – question of fact
 Liability for negligent conduct is corrective justice to remedy an injustice.
Actor bears liability for physical harm caused by actor’s negligence. Actor
does not bear liability caused by actor unless it was caused by actor’s
failure of reasonable care.
 Unavoidable Accident is one that actor could not have avoided by
exercising reasonable care.
o Donghue v. Stevenson (Britain 1932) – Rule to love thy neighbor becomes in law
and you must no injure your neighbor. Reasonable care must be taken so that you
can reasonably foresee what would likely injure your neighbor, a person who is
closely and directly affected by acts.
 Specificity (specific circumstances) v. generality (general rule)
o Notes
 Plaintiff’s Prima Facie Case –
 What is needed to survive motion to dismiss at close of
presentation of evidence. When established, judge may no longer
decide case as a matter of law, but must weigh the evidence and
resolve disputed issues of material fact.
o 1. Damage to π – allegation and proof of actual damages
o 2. Fault on part of ∆ - There must be (1) a duty and (2) a
breach of duty by ∆.
o 3. Causation - ∆’s fault is factual and legal cause of π’s
damages.
 Most jurisdictions (Illinois is one exception) place burden of
proving and pleading contributory negligence on the ∆.
- Reasonable Person Standard
o Restatement (Third) § 10 – Children
 (a) Child’s conduct is negligent if it does not conform to that of reasonably
careful person of same age, intelligence, and experience, except as
provided by (b) and (c)
 (b) Child less than 5 years of age is incapable of negligence
 (c) Special rule in (a) does not apply to children engaged in a dangerous
activity that is characteristically undertaken by adults.
 Children are less able than adults to understand risk and appreciate
alternative choices.

17
  Minority choice is that children above 14 have a rebuttable
presumption in favor of child’s capacity to commit negligence and
between 7-14, rebuttable presumption against capacity.
 Evidence about mental or emotional deficit may be considered.
 In contributory negligence, children under age of 5 cannot have it
counted, but still must prove that motorist was negligent.
 The rules above also are part of contributory negligence analysis
 Dangerous activities include driving cars/motorized vehicles and
adolescents are held to adult standard.
o Restatement (Third) § 11 – Disability
 (a) Conduct of an actor with physical disability is negligent only if
conduct does not conform to that of reasonably careful person with same
disability
 (b) Conduct of an actor during period of sudden incapacitation or loss of
consciousness resulting from physical illness is negligent only if sudden
incapacitation or loss of consciousness was reasonably foreseeable to actor
 (c) Actor’s mental or emotional disability is not considered in determining
whether conduct is negligent, unless actor is a child.
 Old age may be considered in situations (like if 80 year old was
not able to run)
 When there is incapacitation, foreseeability of this incapacitation
must be examined.
 Mental and emotional disability is not considered in whether
reasonable care was exercised. It can only be considered in certain
circumstances (like if emotionally disturbed person attacks a
therapist).
o Restatement (Third) § 12 – Knowledge and Skills
 If actor has skills or knowledge that exceed those possessed by most
others, skills or knowledge are circumstances to be taken into account in
determining whether actor acted as reasonably careful person.
 If person knows about something, this can be used in consideration
of negligence (i.e. if person knows the road has a pothole).
 Substandard judgment does not matter
 If person became intoxicated unknowingly, this will also be taken
into account.
o Vaughn v. Menlove (England Court of Common Pleas 1837) – ∆ owned a rick
(stack of hay) that π aforesaid was likely to ignite and break out into flame and ∆
said he would chance it. One day, rick spontaneously combusted and caused
damage to π’s property. Trial court found in favor of π under reasonable person
standard while ∆ argued that he had no duty since he could use his property how
he pleased and he was not smart enough to be a reasonable person and should
only be charged to the best of his own judgment. Court stated that there is a rule
that you can only enjoy property as not to injure another; if person doesn’t do this,
it is no different than causing the fire himself. Ordinary prudence standard should
be applied.
 Objective standard instead of subjective standard

18
  Did not move past specific categories and merely said that person cannot
enjoy property to injure that of another.
o Delair v. McAdoo (Pennsylvania 1936) – ∆ caused car accident when his tire blew
out, which was worn to the fabric. Court ruled for reasonable care standard and
that person must not subject others to injury through the use of a vehicle. Drivers
must know that their vehicles are safe to drive and this is a rigid rule.
 Case involves a matter of fact because the jury can decide what is
reasonable. Affirmative duty of reasonable care.
 “Standards of law are standards of general applicability. The law takes no
account of the infinite varieties of temperament, intellect, and education
which make the internal character of a given act so different in different
men” – O.W. Holmes
 men are not attempted to be seen as God sees them
o Charbonneu v. MacRury (NH 1931) – 17 year old killed π’s son while driving.
Court ruled that children under 21 (at that time) only have to use standard of
person of same age and experience. They only need to use judgment, as they are
capable. Jury can apply the accepted rule of reasonable conduct for person under
the circumstances and apply the standard to the circumstances of proof (instead of
creating a new standard with different ages as yardsticks). Court rejected rule that
anyone who drives a car must be held to standard of an adult.
o Goss v. Allen (NJ 1976) – Skiing accident case where ∆ is 17-year-old beginning
skier. Court held that child standard applies to either primary negligence or
contributory negligence as opposed to the suggested rule that applies to only
contributory negligence. Similar to Charbonneu, Court held that all skiers should
not be held to adult standard because “it is an adult activity.”
 This is a generally applicable standard as opposed to specific standard.
 Alternatively, it appears this court would have counted driving a motor
vehicle as getting an adult standard because it involved licensing.
 Dissent said that skiing is an adult sport, so it should be given an adult
standard and the adult standard should start at age 16 instead of 18.
o Haley v. London Electricity Board (House of Lords 1964) – π was blind and he
fell over an obstacle placed near a trench that ∆ was working on. Notice boards
were put to prevent vehicles, and normally, they put up fencing, but it had not
arrived yet. Court extended duty to protect all citizens who use city pavement. It
was reasonably foreseeable that a blind person may pass along a particular
pavement on a particular day. Only way for ∆ to win is if it does not have a duty,
but the Court determines there is a duty.
 Fact that ∆ owned fencing and it just hadn’t arrived yet was also evidence
(not proof) that there was a duty/breach of duty.
 Once duty is established toward particular π to foreseeable degree of risk
to that π, question becomes what should ∆, as reasonable person, have
done under the circumstances.
o Notes
 Reasonable care standard is basically the same as standard about
reasonably careful person.

19
  Few jurisdictions that have found that a child under 7 cannot commit a
crime also have held that child under 7 is incapable of negligent conduct.
(Michigan and NC are examples)
 Others say that child between ages of 7 and 14 are incapable of
negligence, but can be shown that they are capable of being held
negligent. (PA)
 No mentally incapacitated person has been found not to be under the
reasonable person standard in a negligence claim.
 However, those with physical disabilities only need to take precautions
necessary for person with disability.
 Purtle v. Shelton held that adult standard did not apply to 17 year old
hunter.
 Dwello v. Pearson (Minnesota 1961) held 12 year old to adult standard.
 Most courts disagree with Goss about a single standard for negligence of
child ∆.?? (143)
 In emergencies, standard takes the fact that there was an emergency into
account.
- Calculating Risk (Calculus of Risk)
o Barker v. City of Philadelphia (EDPA 1955) – Case where garbage truck driver
ran over child who was playing in paper. Proximity to the school made it
foreseeable to a reasonably cautious man that a child could be in the paper.
Negligent ∆ must take circumstance as he finds them and may be liable for
actions even if not reasonably anticipated. Garbage man had special knowledge
about normal trash and he should have known that this was not normal trash. His
careless act resulted in the death of the child.
 Foreseeability as to an injury of what action what magnitude is important.
o United States v. Carroll Towing Co. (2nd Circuit 1947) – Barge sank when bargee
was away from his post. In admiralty cases, liability is apportioned and
contributory negligence is not a complete defense like it was in most things at the
time. Because bargee left his post, Anna C could not recover fully for its loss, but
could recover 2/3 from Grace Line and Carroll Company. Learned Hand
established burden-benefit analysis based on three variables: (1) probability that
barge would break away, (2) gravity of injury, and (3) burden of adequate
precautions. In algebraic terms, this is B < PL.
o Pitre v. Employers Liability Assurance Corp. (1st Circuit CoA of Louisiana 1970)
– Child injured and killed by 17 year old when he rears up to throw a baseball.
Court said that fire department performed its duty to exercise reasonable care of
foreseeable dangers, which the expert said that the fire department needed to do.
Risk must be foreseeable and unreasonable to be negligence. Ordinary care
requires only that precautions be taken against occurrences that can be reasonably
foreseen.
 Evidence after the incident also could not be admitted.
 Court considered custom in its decision.
o Bolton v. Stone (England 1951) – Cricket case where ball went out of stadium
(which was rare) and killed a woman. Court ruled that even though the woman

20
 did no wrong, there was not a standard of care for the cricket players or need to
change the game because only 6 balls had flown out in over 28 years.
o Notes
 In another opinion, Hand stated the degree of care demanded of a person by an occasion
is the resultant of three factors
 1. Likelihood conduct will injure others
 2. Seriousness of injury as it happens
 3. Interest he must sacrifice to avoid risk (1 and 2 are balanced against 3)
 Posner said that Carroll Towing is meant to provide economic meaning to negligence
with whatever side wins.
 Enterprise can be held liable if the preventative measure is not too costly and
can benefit society
 Economic analysis also determines what reasonable person should do.
 Restatement (Second) of Torts gave three sections to apply the Hand/Posner theorem
 § 291 – risk/utility approach to see if risk was unreasonable
 § 292 – Factors that should be considered in determining utility of actor’s
conduct
 § 293 – Social value of all interests are imperiled by the conduct in question are
factors to be considered when determining whether the actor’s conduct was
unreasonable.
- Fundamental questions about institutional competence and design: Jury’s function as trier
of Fact and judicial functions
o Restatement (Third) § 8 – Judge and Jury
 (a) When in light of all the evidence, reasonable minds can differ as to the
facts relating to the actor’s conduct, it is the function of the jury to
determine those facts.
 (b) When, in light of all the facts relating to the actor’s conduct,
reasonable minds can differ as to whether conduct lacks reasonable care, it
is function of the jury to make the determination.
 Jury is given this judgment because many minds are better than
one and to take advantage of insight and values of the community
as embodied by the jury.
 Jury decision on negligence issue is not precedent for later cases
involving different parties.
 Sometimes, it is justified for the Court to determine whether there
was negligence instead of the jury.
o Notes
 Questions of law and fact often get intermixed and question of whether
reasonable jury would make finding is a question of law.
 Roy Stone in a law review article broke down legal universe into three
categories: (1) alpha facts (direct observation/jury questions), (2) aleph
facts (facts determined by reflection and not direct observation/judges can
disregard use of these facts), (3) questions of law (judges alone decide).
 Holmes thought that after a time, the Court may decide questions as
matters of law instead of the jury as judges gained experience. Juries do
not have a right to decide all standards of conduct

21
  Traynor said that standard of conduct should not be decided by jury, but
only facts that fit into the conduct
 In another opinion, Holmes declared that standard of conduct should be
decided by the Courts once for all.
 Goodman – Cardozo case – Advised caution in framing standards of
behavior that amount to rules of law.
- Statutory violations and prescription of standards of care
o Restatement (Third) § 9 – Emergency
 If an actor is confronted with an unexpected emergency requiring rapid
response, this is a circumstance to be taken into account in determining
whether the actor’s resulting conduct is that of the reasonably careful
person.
 Quick response should be taken into consideration if person was
faced with emergency. Reasonable care is the ultimate criteria for
non-negligence
 Jury can conclude person acts reasonably if faced with emergency.
 If emergency was caused by prior negligence, then ∆ can be liable
for π’s harm even if way that he responded to the emergency was
reasonable.
o Restatement (Third) § 14 – Statutory Violations as Negligence Per Se
 Actor is negligent if, without excuse, the actor violates a statute that is
designed to protect against the type of accident the actor’s conduct causes,
and if accident victim is within the class of persons the statute is designed
to protect
 Violation of statute is more than evidence, it is negligence and an
unexcused violation is negligence per se.
 Reasons for this doctrine listed on p. 89 of Restatement
 Negligence per se only applies when accident that injures π is type
of accident that statute seeks to avert.
o Court can rely on text, location within larger statutory
scheme, and more general context of statute.
 Π must show that he was in class of victims meant to be protected
by statute.
 Once ∆’s negligence is established, π must show that ∆’s
negligence was factual cause of harm and harm was within scope
of liability.
 Lack of license may or may not be considered under this rule
depending on the circumstances.
 Violation of statute is also relevant to duty analysis.
o Restatement (Third) § 15 – Excused Violations
 Actor’s violation of statute is excused and not negligent if:
 (a) violation is reasonable in light of actor’s childhood, physical
disability, or physical incapacitation; or
 (b) actor exercises reasonable care in attempting to comply with
statute;

22
  (c) actor neither knows nor should know of factual circumstances
that render statute applicable;
 (d) actor’s violation of statute is due to confusing way in which
requirements of statute are presented to the public; or
 (e) actor’s compliance with statute would involve greater risk of
physical harm to the actor or others than noncompliance.
o Meant to temper effects of negligence per se.
o If statute is not clear, then statute may be excused
o Restatement (Third) § 16 – Statutory Compliance
 (a) actor’s compliance with pertinent statute, while evidence of
nonnegligence, does not preclude finding that actor is negligent for failing
to adopt precaution in addition to those mandated in statute.
 (b) If actor’s adoption of precaution would require actor to violate statute,
actor cannot be found negligent for failing to adopt the precaution.
 Tort law can recognize that legislators only made a minimum
standard.
o Martin v. Herzog (CoA NY, 1920) – Cardozo case – π and husband (killed) were
hit by a driver when they were riding their buggy at night with no lights on their
buggy. ∆ charged contributory negligence because statute required light on buggy
at night. Trial judge said statute was only for consideration (evidence), not prima
facie evidence and ∆ was found negligent and π was found blameless. Court
reversed and held that breaking a statute was prima facie evidence of negligence
and that it was a matter of law whether the breaking the statute was negligent and
could not be given to the jury.
 Law can deter unsafe behavior
o Brown v. Shyne (CoA NY, 1926) – Chiropractor case, practicing without a
license. Plaintiff said that this should have been per se negligence. Court ruled
that π had to show that violation of statute requiring license led to the injury
(causation case). Unless π’s injury was caused by carelessness or lack of skill, ∆’s
failure to obtain license was not connected to injury. Π must prove negligence,
and the lack of the license does not necessarily strengthen the inference of
negligence. The neglect of statutory duty and alleged negligence must be logically
connected.
 Dissent – The purpose of the statute was to protect the public from the act
that happened because the ∆ was too harsh.
 Negligence per se is harsh doctrine because…?
o Tedla v. Ellman (CoA NY, 1939) – π and brother did not properly observe a
statute of where people needed to walk on the side of the road when they were hit
by the ∆. However, the pedestrians in this case would have been placed in greater
danger if following the statute. Standard of care is what statutes say over
reasonable person when there is a statute. The Court ruled that the statute was
meant to protect pedestrians and that they could not be held to be contributorily
negligent if following the statute would have led to greater danger. Also, the
Court notes that cars are more dangerous than pedestrians and have greater
standard placed on them. Question of negligence and proximate cause were ones
of fact that the jury could decide.

23
 o Barnum v. Williams (Oregon, 1972) – Reinforces that violation of a law is
negligence or contributory negligence per se, but exception is whether one acted
as a reasonably prudent person. Most of the time, this is when there is an
emergency and person has to go to other side of the road for a certain reason.
Violation of statute creates presumption of negligence as matter of law and
violating party must give reason why negligence should be excused.
 Dissent – Negligence per se (stricter doctrine) should be the rule instead of
presumption of negligence.
o Notes
 Statute itself does not normally address civil liability and judges do not
always have to engage statutes because of the common law.
 Most courts say that violation of criminal statute is negligence in itself.
 Two types of cases give rise to doubts as to whether courts should be as
free in allowing a civil action for a violation of a statute as they are:
 1. Issue arises that violation of the statute was an “excused
violation” (in criminal law, violation is not excused, but could be
in a civil context)
 2. The propriety of courts unreflectively implying a civil cause of
action for strict liability.
 Not having a license to drive a motor vehicle is often prima facie evidence
in negligent driving cases.
 NY made statute to make lack of license prima facie evidence
 Section 286 of the Restatement of the Law of Torts: “Many statutes and ordinances are
so worded as apparently to express a universally obligatory rule of conduct. Such
enactments, however, may in view of their purpose and spirit be properly construed as
intended to apply only to ordinary situations and to be subject to the qualification that the
conduct prohibited thereby is not wrongful if, because of an emergency or the like, the
circumstances justify an apparent disobedience to the letter of the enactment. * * * The
provisions of statutes, intended to codify and supplement the rules of conduct which are
established by a course of judicial decision or by custom, are often construed as subject to
the same limitations and exceptions as the rules which they supersede. Thus, a statute or
ordinance requiring all persons to drive on the right side of the road may be construed as
subject to an exception permitting travellers to drive upon the other side, if so doing is
likely to prevent rather than cause the accidents which it is the purpose of the statute or
ordinance to prevent.”
 § 15 of Restatement Third tries to make sense of excused violations.
 Difference between per se and prima facie evidence
- Proving Negligence
o Restatement (Third) § 13 – Custom
 (a) Actor’s compliance with custom of community, or of others in like
circumstances is evidence that actor’s conduct is not negligent, but does
not preclude finding of negligence
 (b) Actor’s departure from custom of community or others in like
circumstances, in a way that increases risk is evidence of actor’s
negligence but does not require finding of negligence

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  Used to determine ordinary care.
 Departing from custom can be clear proof of negligence
 Standards or public-agency recommendations are similar to
custom.
 Departure from own standard – if stricter than normal standards,
the evidence may not be admissible showing standard. Decided on
case-by-case basis.
o Restatement (Third) § 18 – Negligent Failure to Warn
 (a) ∆ whose conduct creates a risk of physical or emotional harm can fail
to exercise reasonable care by failing to warn of danger if:
 (1) ∆ knows or has reason to know: (a) of that risk; and (b) that
those encountering the risk will be unaware of it; and
 (2) warning might be effective in reducing risk of harm
 (b) Even if ∆ adequately warns of risk that ∆’s conduct creates, the ∆ can
fail to exercise reasonable care by failing to adopt further precautions to
protect against risk if it is foreseeable that despite the warning some risk
of harm remains.
 This is applied in a very wide range of circumstances
o If appropriate, warning should be used.
 To justify liability for failure to warn, finding that warning was
great and π would have needed to modify conduct only slightly to
avoid danger.
 ∆ can still be negligent if warning was not adequate and did not
contain all relevant information.
 ∆ can be negligent only if ∆ knows or can foresee that potential
victims will be unaware of the hazard.
 Warnings may not be adequate to avoid liability if other
precautions should have been taken.
o Dempsey v. Addison Crane Co. (D.D.C. 1965) – Construction workers were killed
because a certain jib was used for the crane, which was not as safe as another
model, but was what was used the most across the industry. Court reinforces
Hand heuristic by weighing benefits of safety vs. cost of the product. ∆ argued
that because the industry custom was to use this job, the ∆ fulfilled its standard of
care. Court rules that industry standard is admissible in evidence, but it is not
conclusive that standard of care was fulfilled. Court made ultimate finding of fact
that means were unsafe and that this constituted negligence that caused π’s
injuries.
 Also, it talks about another case reaching a different conclusion, but this
more had to do with evidence presented in the two cases. Evidence in
second case showed that there was an alternative device.
o Shilkret v. Annapolis Emergency Hospital Association (CoA Maryland, 1975) – π
was injured and ∆ said that standard of care was “strict locality” rule or what was
customary in the locality. Expert said that the practice done was below the
national standard of care. Court ruled that information was available to medical
providers and that strict locality rule (or similar locality rule) would not give
patients proper medical care. Doctors must be certified by national standards and

25
 the law should follow suit. Additionally, hospitals are to be upheld to standard of
what reasonably competent hospital should be able to do.
 Similar locality rule was the one most widely applied at the time.
o Helling v. Carey (Washington 1974) – Person got glaucoma which was unusual
for someone of the π’s age (32) to get. ∆ doctors did not ever test for glaucoma
even though she had problems. 1 out of 25000 could have glaucoma before the
age of 40. Court ruled that timely giving of pressure test to π was required to be
reasonably prudent. Therefore, the reasonable standard was that the simple,
harmless pressure test should have been required, and in failing to do so, the ∆s
were negligent and proximately caused the blindness sustained by the π.
 Concurrence – This approach is close to strict liability where more
financially responsible person has liability.
 Case is unique because it allowed the jury to say that the prevailing
standard of care was inadequate (since both sides’ experts said that ∆s did
follow prevailing standard of care).
o Miller v. Kennedy (CoA Washington 1974) – π consented to biopsy, but did not
know the risk involved. Acknowledges that relationship is one with fiduciary
duty. Doctors may not withhold information from the patient. Jury had freedom to
accept or reject if nondisclosure impeded on patient’s right. Jury should be
instructed that patient must prove by preponderance of the evidence that (1)
physician failed to inform patient about material risk in proposed treatment, (2)
patient consented to proposed treatment without being aware of risk, (3)
reasonable/prudent patient would not have consented to treatment and (4)
treatment chosen caused injury to π. Failing to inform of all material (reasonably
foreseeable) risk is negligence.
o Notes
 Custom can be relevant to content of duty and whether particular actor
departed from duty.
 Ex. Pietre – expert saying what was normally done at fairs.
 Looks at generally prevailing practices.
 Experts can even give input into ultimate issues as cases have
become more complex.
 Not following custom, protocol, or licensing practices can be very good
evidence, but it is not negligence per se.
 Hospitals owe duty of care because its employees provide services to
patients (doctors are usually not employees of the hospital). Fault of
hospital must be identified and fault of physician is not the hospital’s fault.
 Hospitals used to not have a duty, but today, courts give them a
duty with a burden relative to foreseeability.
 Helling has been criticized. Statute was created to make ∆ liable only by
skill, care and learning of other doctors in the same position.
 Canterbury (DC Cir. 1972) says that there are 2 exceptions to general rule
of disclosure. (1) patient is unconscious and incapable of consenting and
(2) person is conscious, but decision is very important and patient may not
be mentally capable of making decision.

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  Inadequate consent is usually brought under negligence theory
instead of battery theory.
 Significant differences between physician and attorney malpractice. Ex.
legal malpractice relates mainly to economic loss while physician
malpractice relates to injury.
- Res ipsa Loquitur
o Restatement (Third) § 17 – Res Ipsa Loquitur
 Fact finder may infer that ∆ has been negligent when accident causing π’s
harm is type of accident that normally happens as result of negligence of
class of actors of which ∆ is a relevant member.
 Doctrine implies that court does not know and cannot find out if ∆
was negligent, but can infer from the facts.
 Other methods for using res ipsa
o 1. Two-step inquiry – (1) is accident one that usually
happens because of negligence and (2) is the
instrumentality inflicting harm under exclusive control of
∆.
 Unsatisfactory because it can be indeterminate and
exclusive control may be a poor proxy for who was
negligent
o 2. Res ipsa can apply if type of accident usually happens
because of negligence and negligence is usually that of the
∆.
 Res ipsa cases should be invited to compare all causes of the type
of accident, not just the negligence of ∆.
o Usually need an expert to establish how negligence will
work.
o It will be offered if it can negate the presence of other
causes
 Evidence of nonnegligence accepted by the jury can defeat a res
ipsa claim.
 Traditional rule is that π must eliminate his own fault, but with
contributory negligence no longer the standard, many courts say
this no longer applies.
 ∆’s superior knowledge is not considered.
 Court finds if res ipsa is appropriate, then question goes to jury.
o Byrne v. Boadle (Court of Exchequer 1863) – Flour barrel hit π on the head while
he was walking by a place that barreled flour. No one saw the flour barrel thrown,
but circumstantial evidence was that ∆ did it. Court said that there must have been
negligence or the accident would not have happened. Res ipsa loquitur raises
presumption of negligence. Court stated that the barrel rolling out of the
warehouse was prima facie evidence of negligence.
 Charles Russell – an effective attorney was counsel for the ∆.
o George Foltis, Inc. v. City of NY (CoA NY 1941) – π claimed that water main
broke due to ∆’s negligence and damaged his restaurant. Lower court says that ∆
is not negligent, but they cannot find another cause. Break was not due to an

27
 original defect. Inference of negligence could be drawn, but it could be weak.
Court says that res ipsa should be common sense appraised to probability of
evidence. In this case, it is insufficient to sustain finding of negligence. Res ipsa
warrants an inference of negligence, not compels it.
 Preponderance of the evidence is the standard in res ipsa cases.
 Directed verdict was given to π and this was overturned.
o Swiney v. Malone Freight Lines (CoA Tennessee 1976) – Truck was driving and
had two wheels come off; driver avoided the first but was his by the second. Res
ipsa applies unless the ∆ can show that negligence was not the reason for the
accident. To obtain a directed verdict, a ∆ must destroy any reasonable inference
of negligence. ∆s explained why wheels came off, but did not effectively show
that this was not due to negligence. Πs should also not have a directed verdict, but
jury should be able to decide the case under res ipsa.
 Dissent – The ∆s did not know or should have known that the lugs were
loose.
o Ybarra v. Spangard (California 1944) – π had an appendectomy and then woke up
with a pain in his arm leading to a serious degeneration of muscle. Res ipsa has 3
conditions: (1) accident must be one that does not normally occur without
someone’s negligence, (2) must be caused by agency or instrumentality within
exclusive control of ∆, (3) must not have been due to any voluntary action or
contribution on part of the π. Court ruled in favor of π because there was no other
way that π could have developed the injury. ∆ had to explain how negligence did
not occur (shifts burden of proof). It should be enough that π can show injury
resulting from external force applied when he was unconscious. He does not have
to know who caused the negligence (hospital and doctor can be liable). Court
emphasizes that its holding is limited.
o Notes
 Res ipsa loquitur means “thing speaks for itself”
 Very great inference
 Substance of law and evidentiary requirements are linked
 Res ipsa works in drawing inferences from particular facts
 Burdens of proof
 1. Burden of pleading – raising issue
 2. Burden of coming forward – having evidence
 3. Burden of persuasion – (burden of proof)
 In Res ipsa cases, burden of persuasion only means that the ∆’s version of
the facts is at least as likely as the π’s.
 NJ holds that doctrine shifts burden of proof to ∆ so at least one must be
found negligent
 General requirements
 1. Accident which injured π is kind that normally does not occur in
absence of someone’s negligence
 2. ∆ had sufficiently close connection with instrumentality that
caused injury that it is more likely than not that he is negligent to
someone.

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  Difference about res ipsa is that jury is specifically instructed that proof of
accident may infer from ∆ and that negligence caused π’s injuries.
- Duty and Breach of Duty in Negligence
- Basics of Duty
o Restatement (Third) § 7 – Duty
 (a) Actor ordinarily has duty to exercise reasonable care when actor’s
conduct creates risk of physical harm.
 (b) In exceptional case, when an articulated countervailing principle or
policy warrant denying or limiting liability, a court may decide that ∆ has
no duty or that ordinary duty of reasonable care requires modification.
 Ex. social host liability – question is addressed but not resolved.
 Two legal doctrines to withhold liability
 1. No-duty rules – matter of law (for cases about categories of
actors)
o Courts determine legislative facts to determine if one is
appropriate
o Alternative jury instructions may be necessary (i.e. if you
find π was hit with a tree branch while on her land, you
must find in favor of π, but if you find that π was
trespassing on ∆’s land when hit, you must find in favor of
∆).
o General social rules are often relied upon.
o No duty rules are also used to bridge other areas of law
with law of torts.
o These should not be used to substitute fact-finder’s
judgment.
o Restatement disapproves using foreseeability as part of a
duty determination.
o In the absence of creating harm to others, there is ordinarily
no duty of care.
o Conduct may be improper that exposes another to more risk
than they would normally have absent the conduct (i.e.
flying someone into a thunderstorm).
 2. Scope-of-liability doctrines – matter of fact (for factors specific
to a case)
 Questions in medicine about customary rather than reasonable care may
arise.
o Restatement (Third) § 19 – Conduct is negligent because of prospect of improper
conduct by π or third party
 Conduct of ∆ can lack reasonable care insofar as it foreseeability
combines with or permits the improper conduct of π or third party
 Scope of liability often depends on foreseeable likelihood to other
persons.
 This is a special case to § 3.
 Illustrations seem to make this common sense like the negligent
hiring memo materials and giving easy access to a gun.

29
  Criminal conduct that is slight usually is not under liability (like a
rental car agency not finding a bomb that would not come up under
a normal inspection and never had bomb placed in a rental car
before).
o Thompson v. Kaczinski (Iowa 2009) – Trampoline was owned by ∆s and they
disassembled it. A huge storm came and blew the trampoline in the street and π
ran into it. Three factors for determining if duty exists are: (1) relationship
between parties, (2) reasonable foreseeability of harm to person injured, and (3)
public policy considerations. General duty of reasonable care applies in most
cases. Court adopts Restatement (Third) duty analysis in § 7 and says that the ∆s
did not exercise reasonable care because they waited hours to check on the
trampoline after the storm.
 Concurrence says that the ∆s common-law duty is narrow.
o Brown v. Kerr (KY 2010) – Son of ∆s got really high and shot the π’s son with
∆’s gun. Court examines if injury must be foreseeable. Looks to whether
reasonable person in ∆’s position would recognize undue risk to another, not
whether a reasonable person recognized the specific risk. Court ruled that the
son’s conduct was not foreseeable because the ∆s’ gun was in a gun locker and
the son made his own gun through using soap. He had broke into the cabinet 6
years earlier when he only stole drugs, but ∆s had started wearing the key so he
couldn’t have access. Nothing linked him to stealing a gun and using it to kill
someone even though he had stolen from the cabinet in the past.
 (Opinion is inconsistent and does not give a lot of guidance about
foreseeability of risk).
 ∆ could have been liable if Restatement (Third) § 7 had been applied.
 Ways to judge duty for foreseeable risk
 1. If the case had been under Restatement (Third) § 7, duty could
be imposed if there is any foreseeable risk.
 2. In other jurisdictions, duty extends only to particular injury (not
general foreseeability like Restatement (Third)).
 3. Foreseeability is for a class of risks (minority)
o Notes
 Duty consists of legal obligations, not necessarily moral ones
 Duty inquiry mainly has 5 considerations
 1. Foreseeability
 2. Community notions of obligation
 3. Broad sense of social policy
 4. Commitment to rule of law
 5. Concern for courts’ administrative capability and convenience
 Restatement does not include foreseeability, but many jurisdictions hold
that actor ordinarily has duty to exercise reasonable care when actor’s
conduct create a foreseeable risk of physical harm.
 Some courts limit this to the particular plaintiff.
 There is duty for every ∆ that has custody over π.
 ∆s can assert affirmative defenses
 Risk-creation duty rule is a strong default (duty to not create risk).

30
  3rd Restatement gives foreseeability assessment to fact finder.
 Foreseeability of harm discussions are usually duty rule discussions
 Courts struggle with “enabling torts” when allegations are that ∆ enabled
third-party to cause injury to π.
 Negligent entrustment – negligently entrusted a potentially
dangerous third party with dangerous instrumentality.
- Duty and foreseeable plaintiffs
o Pasgraf v. Long Island Railroad – π was standing on platform when man tried to
jump on train and railroad guard tried to help him get on the train. The man was
holding a package of fireworks that fell and exploded, causing a scale to fall and
injure the π. Cardozo says that there must be a hazard apparent to the eye of
ordinary vigilance. The risk defines the duty to be obeyed and risk imports
relation; it is risk to another or to others within the range of apprehension.
Negligence and duty are interlinked and negligence in the abstract is not a tort.
Negligence is not a tort unless it results in the commission of a wrong and the
commission of a wrong imports the violation of a right. Railroad does not have a
duty because the injury is not foreseeable.
 Andrews Dissent – There is a broader duty to not create risk. Negligence
is act/omission which unreasonably does or may affect the rights of others
or which unreasonably fails to protect one’s self from dangers resulting
from acts. The act itself is the wrong, not whether it causes harm. There
may not be negligence in the abstract, but relationship is between person
who harms and person who suffers that harm. Every one owes duty to
world at large to refrain from acts that may unreasonably threaten safety of
others. Unreasonable risk being taken, consequences are not confined to
those who might probably be hurt, but those who are hurt. Π was injured
and his injury was caused by negligence.
o Notes
 Common understanding of Palsgraf is that the clash is between “Act-
centered” and “relational” conceptions of duty.
 Majority rule is plaintiff-foreseeability (33 courts) and only 4 follow
Andrews conception in holding that π-foreseeability is solely a matter for
proximate cause.
 In a case where π contracted an STD because his wife had sex with ∆,
Court ruled that liability to π depended on whether ∆ could foresee injury
to the π.
 Duty is a question for judges while breach is for the jury.
 Although Cardozo said that some times inference were a possible
question for the jury.
 Andrews’s view is focused on the act and causation sequence.
- Affirmative duties; special relationships
o Restatement (Third) § 37 – No Duty of Care with Respect to Risks Not Created
by Actor
 An actor whose conduct has not created a risk of physical or emotional
harm to another has no duty of care to the other unless a court determines
that one of the affirmative duties provided in §§ 38-44 is applicable

31
  Even highly foreseeable harm does not affect this no duty rule
o Restatement (Third) § 38 – Affirmative Duty Based on Statutory Provisions
Imposing Obligations to Protect Another
 When a statute requires an actor to act for the protection of another, the
court may rely on the statute to decide that an affirmative duty exists and
to determine the scope of the duty
o Restatement (Third) § 39 – Duty Based on Prior Conduct Creating a Risk of Harm
 When an actor’s prior conduct, even though not tortious, creates a
continuing risk of physical harm of a type characteristic of the conduct,
the actor has a duty to exercise reasonable care to prevent or minimize the
harm
o Restatement (Third) § 40 – Duty Based on Special Relationship with Another
 (a) an actor in a special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the
relationship.
 (b) Special relationships giving rise to the duty in (a) include: (1) a
common carrier with its passengers, (2) an innkeeper with its guests, (3) a
business or possessor of land that holds its premises open to the public
with those who are lawfully on the premises, (4) an employer with its
employees who are in imminent danger or are injured/ill and helpless, (5)
school with students, (6) landlord with tenets, (7) custodian with those in
custody (if required to take custody and if custodian has superior ability to
protect the other).
 Applies regardless of source of risk
o Restatement (Third) § 41 – Duty to Third Parties Based on Special Relationship
with Person Posing Risks
 (a) an actor in a special relationship with another owes a duty of
reasonable care to third parties with regard to risks posed by the other that
arise within the scope of the relationship
 (b) Special relationships giving rise to duty provided in (a) include: (1)
parent with dependent child, (2) custodian with those in custody, (3)
employer with employees when the employment facilitates the employee’s
causing harm to third parties, and (4) a mental-health professional with
patients.
o Restatement (Third) § 42 – Duty Based on Undertaking
 An actor who undertakes to render services to another and who knows or
should know that services will reduce the risk of physical harm to the
other has a duty of reasonable care to the other in conducting the
undertaking if: (a) the failure to exercise such care increases the risk of
harm beyond that which existed without the undertaking, or (b) the person
to whom the services are rendered or another relies on the actor’s
exercising reasonable care in the undertaking.
o Restatement (Third) § 43 – Duty to Third Parties Based on Undertaking to
Another
 An actor who undertakes to render services to another and who knows or
should know that services will reduce the risk of physical harm to which a

32
 third person is exposed has a duty of reasonable care to the third person in
conducting the undertaking if: (a) the failure to exercise reasonable care
increases the risk of harm beyond that which existed without the
undertaking, (b) the actor has undertaken to perform ta duty owed by the
other to the third person, or (c) the person to whom the services are
rendered, the third party, or another relies on the actor’s exercising
reasonable care in the undertaking
o § 44 – Duty to Another Based on Taking Charge of Another
 Duty to exercise reasonable care while within the actor’s charge if person
appears to be imperiled or helpless. Must not put person in worse position
than previously existed before taking charge.
o Price v. Dupont (Delaware 2011) – Take home asbestos case where π had
exposure to asbestos because of her husband’s job. Negligent conduct is examined
as either misfeasance (act which actor as reasonable man should recognize as
involving unreasonable risk of causing invasion of an interest of another) or
nonfeasance (failure to do an act which is necessary for protection or assistance of
another and which actor was under duty to do so). Misfeasance has duty and
nonfeasance does not. Majority says that this is nonfeasance and that there is no
general duty unlike if misfeasance was alleged. Dupont failed to prevent asbestos
from being taken home, but his employment does not constitute a special
relationship so there is no duty. Nature of the conduct determines duty.
 Dissent – Majority does not correctly use precedent as this case could be
misfeasance or nonfeasance. Dupont did an affirmative act by releasing
asbestos into the workplace. Dupont created the peril to both Mr. and Mrs.
Price for the disease.
 If misfeasance had been upheld as cause, duty to wife still may have ben
difficult.
o Grimes v. Kennedy Krieger Institute (Maryland 2001) – Misfeasance case where
Johns Hopkins created a program to study effects of lead paint on children and put
those children at risk. KKI knew that lead poisoning was bad and it incentivized
owners to leave lead paint in their house in order to research the effects. Study
may be valuable, but Court ruled that KKI had duty to not increase risk and was
not immunized as an “institutional volunteer;” this is not a basis for a special
relationship. KKI’s duty as a medical researched was to: (1) design a study that
did not put children at unnecessary risk, (2) inform participants in study of results
in timely manner, and (3) completely and accurately inform participants in
research study of all hazards and risks involved in the study. Required protection
from unreasonable harm and requires researchers to completely and promptly
warn of hazards.
o Notes
 General Rule: No duty to warn, protect or rescue – because of personal
freedom.
 However, there is a duty to not make risk worse.
 § 314 of Restatement (Second) – Fact that actor realizes or should realize
that action on his part is necessary for another’s aid or protection does not
of itself impose upon him a duty to take such action.

33
  Some States have passed good Samaritan laws un order to allow people to
try to help unless they commit gross negligence.
 Affirmative duties (exceptions to common law rule):
 1. Where there was pre-existing special relationship between π and
∆
 2. ∆ voluntarily promised aid or did come to aid π
 3. Where ∆ created risk from which π required aid (tortiuously or
not)
 4. Where ∆ had special relationship with third party who caused
harm to π
 5. Where statutory duty is found sufficient to justify imposition of
negligence duty
 Randi W. v. Muroc (Cal 1997) p. 298 – Duty imposed on employer who
did not warn that previous employee was a molester when another school
hired him.
 Look at § 40 of Restatement (Third)
 Relationship is deemed special based on policy.
 Majority approach is to let jury determine if special relationship exists
- Rescuers
o Restatement (Third) § 39 – Duty Based on Prior Conduct Creating a Risk of
Physical Harm
o Restatement (Third) § 42 – Duty Based on Undertaking
o Farwell v. Keaton (Michigan 1976) – Night on the town case. ∆’s son failed to
exercise reasonable care when he took over Farwell after he was injured and this
was the proximate cause of ∆’s death. There is a legal duty to avoid any
affirmative acts which may make a situation worse. He had duty to make sure that
Farwell was safe. Courts find duty where reasonable men will recognize it and
agree that it exists.
 Dissent – said that ∆ did not voluntarily take charge of π’s safety because
he never expressed pain and ∆ could not know that π passing out was
dangerous (since the boy had already been playful after the accident).
Also, close relationship does not have precedent and is only a policy
consideration.
 Case is one about § 7.
o Maldonado v. Southern Pacific Transportation Company (CoA of Arizona 1981)
– Mexican citizen tried to climb on a train and a worker bumped it to keep him
from getting on. He suffered an injury and then the train left and did not help him.
Even if prior conduct was not tortious, there is a continuing duty to minimize
harm. This is a separate duty from the original harm (which may have not had a
duty). Proximate cause issue was not decided.
 Restatement (second) § 322 is where duty to minimize harm after causing
bodily injury is found.
o Notes
 § 44 of Restatement (Third) – when someone undertakes to aid another,
one is under obligation to act reasonably in doing so.

34
  Minority approach – there is a duty to not increase risk during rescue. If he
increases risk, he must not do so unreasonably and to warn, protect, or
rescue the person from increased risk.
 If someone promises rescue, they must do so. Also, person may not
interfere with another person’s attempt to rescue.
 Basic rule is that there is no duty to continue a rescue effort.
 Exception is § 44(b)
 Promise to help may create a duty.
 Good Samaritan statutes were created to give partial or complete
immunity from liability for helping as long as gross negligence or an
intentional tort are not caused by the π.
 WI and CA examples.
 Where risk created is one of continuing nature, duty to protect against risk
continues.
- Special relationships with actors whose pose risks
o Restatement (Third) § 41 – Duty to Third Parties Based on Special Relationship
with Person Posing Risks
o Thompson v. City of Alameda (Cali 1980) – Case where adolescent murdered a
small boy after indicating he would do so, but did not say who. Court ruled that ∆
did not have duty to warn local police or parents or adolescent’s mother that he
had indicated in a generalized threat that he may harm someone. State has duty to
warn when specific person is threatened, but there is not a general duty to warn.
Special relationship must be established to show that entity had duty to warn.
Further disclosure should only happen in a way that preserves the person’s
privacy while preventing threatened danger. In this case, there was no special
relationship and it went against policy for the police to have to warn others of the
generalized threat. Further, the plaintiffs’ sought warning is extremely broad and
warning the police would not prevent the assault, warning parents may thwart
innovative rehabilitative release programs’ objectives, and warning mother would
require her to have an affirmative duty of constant vigilance. Factors to consider
are foreseeability of harm to π, degree of certainty that π suffered injury,
closeness of connection of ∆’s conduct and injury suffered, moral blame for ∆’s
conduct, policy for preventing future harm, extent of burden to ∆ and
consequences to community of imposing duty, and economic considerations.
Other public agency considerations are extent of agency’s power and role
imposed upon it by law.
 Dissent – Duty should be to all people who are foreseeable victims. The
analysis should focus on whether the π is a foreseeable victim.
 County was immune because of California gov’t code.
 Tarasoff, precedent in this case, was about a specific π.
o Notes
 § 41 of Restatement places duty on mental health professionals to warn
foreseeable victims of risk posed by π.
 Actors in special relationships owe duty of reasonable care to third
persons with regard to risks posed by the other that arise within the
scope of the relationship. (these include a parent with child,

35
 custodian with those in custody, employer with employees, mental
health professionals with patients)
 Case decided subsequently to Thompson held that police were not liable
for failing to warn a patron at a Laundromat who was stabbed by someone
they had under surveillance (Davidson v. City of Westminster)
 In Alaska (in 1986), the Court held that the state could be liable for
negligence in failing to adequately structure and supervise parole of a
prisoner and for failing to warn the prisoner’s family and residents of his
isolated community of his dangerous propensities when he consumed
alcohol.
 Many states have required notification to local law enforcement about
where sex offenders live.
- “No duty” determinations
o Strauss v. Belle Realty (NY 1985) – Person fell when power was out and hurt
badly. He was in an apartment common area. ∆ had agreement with the landlord.
Court determined that ∆’s duty could not be separate in this case from the other
agreements Con Edison had. Considered policy that liability could lead to a lot of
litigation and said that customers could sue, but those in π’s position could not.
There is no duty except where there is a contractual relationship.
 Dissent – Disagrees with Court only looking at one side of the equation in
policy consideration. Policy considerations should be extended to
bystanders. Also, seems counterproductive to consider damage to Con
Edison because the more people they damage, the less can be sued.
Rational basis for assumptions should be established.
o Graff v. Beard (Texas 1993) – Social host duty case. Person drank and hit π and π
said host gave too much alcohol. CoA’s standard of duty was twofold (1) prevent
guests who will be driving from becoming intoxicated and (2) host must prevent
intoxicated guest from driving. Court says that this is inaccurate and dram shop
statutes do not apply to social hosts. Statutory duty was strict and told
restaurants/bars to not give drinks to patron when obviously intoxicated. Statutes
become exclusive basis for civil liability if they apply, but they do not apply to
social hosts. Common-law duty should consider social factors that the statute did
not. Problems with creating the duty here is that social guest may not know if
someone is drunk or not and may not be able to keep them from driving. This
would effectively prevent alcohol from being served at parties. One person does
not have to control another. Common law is focused on drinker, not social hosts.
 Dissent – Legislature did not have to create duty to social hosts and
common law duty applies here. Further the majority gives too much
deference to the legislature. Social host has duty to do everything possible
to keep a social guest from driving. Issue should be one for jury instead of
the judge.
o Notes
 All cases that gave common law duty to hosts had statutes enacted against
the decisions.

36
  Cases with frats/sororities have no found duty of care for intoxicated
people unless there was coercion into drinking as part of an initiation
ritual.
 Dram shop acts prevent bars from serving alcohol to patrons to point of
intoxication.
- Harm
o Restatement (Third) § 4 – Physical Harm
 “Physical harm” means physical impairment of human body (“bodily
harm”) or of real property or tangible personal property (“property
damage”). Bodily harm includes physical injury, illness, disease,
impairment of bodily function, and death
 No minimum amount of physical harm is needed
- Causation
- Cause in fact (“but for” or sine qua non causation)
o Restatement Third § 26 – Factual Cause
 Tortious Conduct must be a factual cause of harm for liability to be
imposed. Conduct is a factual cause of harm when harm would not have
occurred absent the conduct. Tortious conduct may also be a factual cause
of harm under § 27.
 Standard for factual cause is “but for” test as well as sine qua non
test. Both express that act is factual cause of an outcome if, in
absence of the act, outcome would not have occurred. Must be
necessary condition for outcome.
 Only needs to be one factual cause of harm – existence of other
causes of harm does not affect whether specified tortious conduct
was necessary condition for harm to occur. Causal elements may
act independently.
 If there is more than one cause for an injury, then factfinder must
decide which is stronger factual cause.
 Must set up counterfactual to determine what would have
happened if actor had not acted the way it did.
 Framework for causal analysis
o 1. Identify relevant, legally cognizable harm for which
recovery is sought (may be difficult, but ex. is court
allowed spoliation of evidence to show factual cause of
negligent conduct)
o 2. Determination of the conduct of the actor alleged to be
tortious, which entails identifying alternate conduct that
would not be tortious.
 If there are multiple acts, factfinder may consider all tortious acts
or omissions in determining if π’s harm would have occurred
(instead of identifying specific instances)
 Restatement (Third) does not adopt substantial factor test, which
suggests jury should find π’s substantial contributory negligence
rather than ∆’s tortious conduct to be cause of harm.

37
  Act cannot be factual cause of outcome that already occurred (i.e.
shooting a dead body).
 Burden of proof – preponderance of the evidence
 Loss of chance – compensated only for lost opportunity under
preponderance of the evidence standard
o Mostly limited to healthcare because: (1) contractual
relationship exists between patient and physician, (2)
reasonably good empirical evidence for outcome is
available, and (3) frequently the consequences of
physician’s negligence will deprive patient of less than
50% chance of recovery
o Restatement Third § 27 – Multiple Sufficient Causes
 If multiple acts occur, each of which under § 26 alone would have been
factual cause of physical harm at same time in absence of the other act(s),
each act is regarded as factual cause of harm
 Applies whenever there are 2+ competing causes, each of which is
sufficient without tortious conduct, harm would have still occurred
because of competing cause.
o Ex. of 2 fire case where either fire could cause damage
 Multiple sufficient causes are factual causes because we recognize
them as such in common understanding of causation.
 Applies to all multiple cause cases even if one act is tortious and
the other innocent. Tortious act can still be held liable
 Restatement does not take position on whether an additional
actor’s contribution can be combined into a sufficient causal set
 Each exposure to a toxic chemical is a factual cause for a disease
(but may not be a legal cause)
 Disease that will cause death that is not a factual cause of
someone’s death can be used for damages.
o Restatement Third § 28 – Burden of Proof
 (a) Subject to subsection (b), the plaintiff has the burden to prove that the
defendant’s tortious conduct was a factual cause of the plaintiff’s harm.
 (b) When plaintiff sues all of multiple actors and proves that each engaged
in tortious conduct that exposed the plaintiff to a risk of harm and that the
tortious conduct of one or more of them caused the plaintiff’s harm but the
plaintiff cannot reasonably be expected to prove which actor or actors
caused the harm, the burden of proof, including both production and
persuasion, on factual cause is shifted to defendants.
 Factual cause is an inference drawn from prior experience and
some understanding of other causal factors that affected the
outcome. Preponderence of the evidence is the standard (not high
degree of certainty).
 Usually (b) is in negligence per se and warning case. Only in other
cases in unusual circumstances

38
  Toxic substances and diseases can pose problems with factual
cause because it is difficult to show that a disease was factually
caused by a certain substance.
o Similarly, if there is more than one substance, then the
court will look at if they worked together to cause the
injury.
o If only one would cause the problem, but it is not sure
which one, then the burden of proof is on the manufacturers
to show that it was the other manufacturer’s product.
 People who aggravate injuries are only liable for aggravation, not
the injury itself
 The reason for (b) is because it is better to put the risk on culpable
∆s than the plaintiff. All persons whose tortious acts exposed π to
risk should be joined (must show that all ∆s acted tortuously).
o Contrast: (1) being hit by a taxicab at night when could not
see name of company (there were 5 companies) where
burden does not switch with (2) being hit by a taxicab in
broad daylight and seeing 5 possible taxicabs on street
where burden does switch when all 5 were acting
tortiously.
o Theory of alternative liability.
o Kingston v. Chicago & Northwest Railway Co. (Wisconsin 1927) – Two fire case
and both were of equal size. One was by the railway company and one was of
unknown origin. Either fire would have caused damage without the other. Π had
to prove absent conduct of RR, fire would not occur. When one of two or more
joint wrongdoers whose concurring acts of negligence result in injury, each is
individually responsible for entire damage resulting from join or concurrent acts.
Whole loss must be treated as an entirety. Both fires were about equal size, so
precedent about a much larger fire swallowing one caused by the ∆ did not apply.
Uses Cook case where two people shot at someone and he died. One was known
and other was unknown, but Court ruled that known person could be responsible.
When two causes, each attributable to negligence of responsible person, concur in
producing injury of another, then both can be held liable.
 If one fire of unknown origin was much larger than one by ∆, ∆ may not
be found liable.
 Must be a completed tort.
o Kramer Service v. Wilkins (Mississippi 1939) – π was hurt by a faulty product at a
hotel, and where he was hurt, a skin cancer developed. Both experts in the case
said that chances of this being true were very rare. Court ruled that jury should
have been instructed to not consider cancer. Post hoc ergo propter hoc is not
sufficient. Possibilities cannot sustain the verdict; there must be a clearer
foundation.
o Daly v. Bergstedt (Minnesota 1964) – Woman fell in a store and was hurt pretty
badly on her leg. She also bruised her breast and where there was a bruise, later
developed cancer. 6 doctors said trauma could not cause cancer, but one said that
cancer could develop. Court says that there needs to be a degree of reasonable

39
 certainty, but says that the question of fact was rightly given to the jury and jury
could give a verdict for π. Medical expert’s opinions do not need to be free of
doubt.
o Summers v. Tice (California 1948) – π was shot at and struck once when his two
hunting companions shot in his direction after π had specifically told them not to
and told them to exercise care when shooting (so he did not assume the risk). Both
shot around the same time, but both claim it was the other person and
individually, evidence cannot sustain that one was the person who shot the π.
Court says that this does not matter because the two are jointly liable since π
would not have been shot but for them shooting at him. Both are liable because it
is unfair to injured person to not have redress for his harm caused by another’s
negligence.
 Uses Restatement (First) 876(b) and (c) – persons acting in concert will be
liable for harm to third person if one knows that the other’s conduct
constitute breach of duty and he gives assistance, or gives substantial
assistance to accomplish tortious result.
o Matsuyama v. Birnbaum (Massachusetts 2008) – Loss of chance case. Doctor did
not order tests for gastric cancer even though he knew π had stomach trouble and
was at risk of gastric cancer. Π developed moles and doctor did not order tests
still. Π’s medical expert testified that development of moles should have signaled
to the doctor that there was a potential problem. Court ruled that π could recover
because of loss of chance even if the survival rate lost was not 51%. “All or
nothing” rule fails to deter medical negligence and does not advance tort law like
intended. New standard is that π must prove by preponderance of the evidence
that physician’s negligence caused π’s likelihood of achieving a more favorable
outcome to be diminished. This is limited to medical practice and is suitable
because (1) reliable expert evidence establishing loss of chance is available in
medical cases, (2) medical negligence contravenes the doctor-patient relationship
that physician will make reasonable measures to help the patient, (3) not
uncommon to have less than even chance of survival and (4) party capable of
preventing harm can bear consequences of capable party’s negligence. Damages
are calculated by (total damages x loss of chance percentage). Loss of change
percentage is (chance pre-malpractice minus chance at time finally discovered).
 Most States have loss of chance today for medical malpractice.
o Notes
 Must prove that “but for” the ∆’s conduct, the injury would not have
happened.
 Can be proven by:
 1. Showing there is a sufficiently high correlation between
occurrence of events of type X and occurrence of events in type Y
 2. In particular case under consideration, there is no other plausible
explanation of occurrence of event Y that does not require
occurrence of X.
 Preponderance of the evidence may be enough to prove factual cause (not
having to show that every other cause is impossible)

40
  In asbestos/mesothelioma cases, court have often made exceptions to
single-judgment rule since meso can be developed.
 One cause in fact problem is if it is unsure whether a safety precaution
would have changed the situation.
 Loss of a chance doctrine allows for someone to recover if ∆’s negligent
conduct (usually a doctor) led to person having less of a chance of
recovery. It is difficult to quantify.
 WHERE ARE MY OCTOBER 3 NOTES?!
- Proximate Cause (Scope of liability)
o Thompson v. Kaczinski – Fact finder could have found trampoline displacement as
cause for π’s injuries and should not have said that ∆s’ conduct was not negligent
as a matter of law.
o In Re Arbitration of Polemis (Court of Appeal 1921) – Plank fell in a ship and
caused the fire. ∆s said this was an unexpected peril even though there was
negligence. When there is evidence of negligence, person guilty of it is equally
liable for its consequences whether they were foreseeable or not. Even though the
spark was not foreseeable, the plank caused the falling of the spark and ∆ should
be liable. Because breach of duty and harm were both present, this leads to
proximate cause. Damage does not have to be natural and probable result. Once
the act is negligent, the fact that its exact operation was not foreseen is
immaterial.
 Test is foreseeability in many jurisdictions, but not in this case.
 Issue was clause 2 of the contract which freed liability from “expected
peril”
o Palsgraf v. Long Island Railroad (NY 1928) – Cardozo says that proximate cause
does not need to be examined for this case because there was no duty, but if there
was a breach, direct cause test from Polemis would have been enough. However,
Andrews dissent basically says to use common sense of where the chain of events
begins (use practical politics). Proximate cause must be something without which
the event would not happen. In this case, direct connection of immediate results is
what person should be responsible for.
o *The Wagon Mound I (Privy Council 1961) – Oil spread over a considerable part
of an Australian bay due to an oil spill. Engineering company manager said not to
do welding or burning until further orders. After consulting others, he decided that
this furnace oil was not likely catch flame. Few days later, oil caught fire due to
some trash that acted like a wick. Trial judge said that ∆ did not know and could
have not known that oil could catch fire when spread on water. Polemis
establishes that if ∆ is guilty of negligence, then he is responsible for all
consequences whether foreseeable or not. Other cases have limited proximate
cause to ordinary consequences (foreseeable consequences). Polemis has often
been rejected because courts see foreseeability as vital and leave what reasonable
person would do to the judge. Court overrules Polemis and states that should only
be responsible for the probable consequences of his acts. Foresight of reasonable
man alone can determine responsibility, not hindsight. There is no such thing as
liability in the air just like there is not negligence in the air. Foreseeability is the
effective test.

41
  Privy Council is a Court for the Commonwealth
 Court uses contract precedent
 Contributory negligence claim must be based on reasonable care
 Engineering company was the one that could not recover
o Hughes v. Lord Advocate (House of Lords 1963) – Post office employees left a
manhole open and did not properly cover it and left lamps burning. Kids played
around it and accidently kicked over a lamp that caused a thirty foot flame that
damaged one of the children. Both sides agreed there was foreseeability, but
solicitor general wanted to limit foreseeability. Court ruled that all details leading
to the accident do not have to be foreseeable, but the accident which occurred
must be of the type which should have been foreseeable to the reasonably careful
person. In this case, ∆ cannot escape foreseeability just because all possibilities of
children playing with lamp were not foreseeable. Accident should have been
reasonably foreseen.
 Allurement language of opinion is important. Children could be allured to
play around the area by the lamps if not dealt with properly.
o Doughty v. Turner Manufacturing (Court of Appeal 1963) –
 1st judge – Asbestos cover got knocked into an electrode bathtub with
liquid cyanide that was very hot. No one knew this was a danger, but it
caused an explosion and injured the π. Court says that ∆ cannot be liable
for negligence because if they had intentionally placed it in the bath
without knowledge of potential problem, there would be no liability so
adding it accidently should not lead to liability. This case also establishes
that foreseeability is necessary.
 2nd judge – Two risks are now known. First was already known that
dropping a large object into molten liquid could cause a splash and
damage. Second is now known that asbestos cover will disintegrate and
cause under-surface explosion. Trial judge’s findings lead to strict
liability. Risk foreseeable to reasonable man should be the standard. Just
like Judge 1, he says fact that it was done inadvertently does not create
liability.
 Harm with risk standard
 No liability for something not reasonably foreseen.
 This would be a workers comp case today.
o Petition on Kinsman Transit Co. (CoA 2nd Cir. 1964) – Buffalo river case. A ship
was not tied on well and anchor was not put down. This hit another ship and then
both ships caused a bridge to collapse (when bridge should have been lifted, but
no one was these) and this caused a dam to be created on the river damaging a lot
of property upstream. Trial judge based on last clear chance rule held City (owner
of bridge) liable for damage to other tortfeasors. Under normal circumstances,
there is no liability to city because no ships were anticipated to come; however, an
NY statute says that draw shall be opened promptly upon reasonable signal at all
times. Court overruled the ships objections to City not being held liable to other
people’s damages because actor who puts force in motion is the one liable. As far
as concerns the City, the danger of bridge falling and flooding would not be
unforeseeable under circumstances of those who gave it thought. This is in no

42
 disagreement with Wagon Mound either because the principle that excludes
liability where injury sprang from a hazard was different from that which was
improperly risked. Certainty of what is cause and what is not is difficult to
determine. Holding is limited to damages that resulted from same physical forces
that required exercise of greater care than was displayed.
 Concur/Dissent – Disagrees with majority as only to language about how
insurance should be assumed to be in effect. Just because flooding
occurred does not mean that it was foreseeable. Majority removes
foreseeability. (Cites Polemis, and Wagon Mound). Flood claimants are
too far on the non-liability side of the line.
 Statutes caused liability
 Uses harm within risk standard
o Wagon Mound II (Privy Council 1966) – Same ∆ but different π from Wagon
Mound I. Foreseeability is necessary to establish fault by knowing what a ∆ ought
to be aware of could cause damage to his neighbor. Just because something is by a
direct result of ∆’s nuisance does not mean there is liability if it was
unforeseeable. First case had πs not say that oil could be set alight because that
would have led to contributory negligence. However, in this case, evidence was
established that oil could be caught alight and that there was no justification for
the discharge of oil. There are degrees of foreseeability, so the question is if the
chief engineer with his knowledge and experience should have foreseen the
possibility that oil could catch fire. Court rules that he should have known that
this oil could be ignited. Therefore, respondents may succeed on the issue.
 Foreseeability changes from being binary to a spectrum.
 Only oil plus wick could lead to fire damage.
 Bolton v. Stone discussion is to show that current case did not have the
burden of that case.
o Restatement Third § 29 – Limitations on Liability for Tortious Conduct
 An actor’s liability is limited to those harms that result from the risks that
made the actor’s conduct tortious.
 Actor can only be held liable among potential harms that made
actor’s conduct. If risks of conduct include the harm that occurred,
then it is within liability.
 Courts typically have adopted a foreseeability test for scope of
liability in negligence cases. This works with the risk standard
adopted by this section, but the risk standard is clearer as to what is
foreseeable.
 Scope of liability is left to the factfinder while duty is left to the
court as a question of law.
 The risk standard is compatible with negligence per se and strict
liability as well.
 Unforeseeable plaintiffs can usually not recover
 If the type of harm that occurs is within the scope of the risk, ∆ is
liable for all such harm caused regardless of the extent. Scope of
liability is a mixed question of law and fact like negligence.
 This standard also applies to contributory/comparative negligence

43
o Restatement Third § 30 – Risk of Harm Not Generally Increased by Tortious
Conduct
 An actor is not liable for harm when the tortious aspect of the actor’s
conduct was of a type that does not generally increase the risk of that
harm.
 An act can be a factual cause without being a proximate cause for
the injury (i.e. a tree hitting a car that was speeding. Injury would
not have happened but for speeding, but it is not within scope of
liability).
o Restatement Third § 31 – Preexisting Conditions and Unforeseeable Harm
 When an actor’s tortious conduct causes harm to a person that, because of
a preexisting physical/mental condition or other characteristics of the
person, is of greater magnitude or different type than might reasonably be
expected, the actor is nevertheless subject to liability for all such harm to
the person.
 “egg-shell skull” rule – all injuries are subject to be paid by
negligent actor if within scope of liability. Similarly, all damages
are within scope of liability.
 Applicable to property as well
o Restatement Third § 32 – Rescuers
 Notwithstanding § 29 or § 34, if an actor’s tortious conduct imperils
another or the property of another, the scope of the actor’s liability
includes any harm to a person resulting from that person’s efforts to aid or
to protect the imperiled person or property, so long as the harm arises from
a risk that inheres in the effort to provide aid.
 Ex. person tries to rescue 2 others because of negligence of
another. That party is liable for rescuer’s damage.
o Restatement Third § 35 – Enhanced Harm Due to Efforts to Render Medical or
Other Aid
 An actor whose tortious conduct is a factual cause of harm to another is
subject to liability for any enhanced harm the other suffers due to efforts
of third persons to render aid reasonably required by the other’s injury, so
long as the enhanced harm arises from a risk that inheres in the effort to
render aid.
 ∆s are not liable for other actor’s enhancement of harm.
o Restatement Third § 36 – Trivial Contributions to Multiple Sufficient Causes
 When an actor’s negligent conduct constitutes only a trivial contribution to
a causal set that is a factual cause of harm under § 27, the harm is not
within the scope of the actor’s liability.
 Ex. breathing in asbestos fibers at one place on one day when a
person spent 40 years in a factory subject to asbestos exposure.
o Notes
 Assumption is that ∆ was negligent and failed to use reasonable care and
harm and cause in fact are assumed.
 Factors
 1) cases are about the limit to ∆s potential liability

44
 
2) focus on the victim

3) if parties have a contract, what is its purpose (????10/6/14)
o If parties do not have a contract, then should the court
address what a contract might look like?
 4) foreseeability – should it be only a foreseeable victim?
 5) Notice of consequence
 Wagon Mound Rule – Liability is only in cases where exact consequence
is foreseeable.
 Polemis not followed because it uses “hindsight of a fool”
 In America, “scope of foreseeable risk” is the criterion for “proximate.”
- Intervening Causes
o Glasgow Realty Co. v. Metcalfe (KY 1972) – Boy wandered into an apartment
owned by ∆ and caused a window to fall and shatter on a crowd below. Unknown
person ran into π and injured her (more than expected). ∆ said that boy was
intermediary actor even though window was defective. Court ruled that under
Restatement (Second) § 439, actor is not relieved of liability for intervening
cause. General foreseeability, not specific circumstance, is the rule here.
o Brauer v. NY Central & Hudson River Railroad (NJ 1918) – ∆’s train crashed. π
says that ∆’s guards did not protect π’s property from thieves. ∆ says that there is
no liability unless property was destroyed. Court rules that theft was same as
destruction and that recovery can occur. Act of thieves did not prevent liability
because act was concurrent with ∆’s negligence.
 Dissent – Says that collision cannot be proximate cause of loss of stolen
property. Criminal intervention cannot be foreseen.
o Restatement Third § 34 – Intervening Acts and Superseding Causes
 When a force of nature or an independent act is also a factual cause of
harm, an actor’s liability is limited to those harms that result from the risks
that made the actor’s conduct tortious
 Foreseeable harms are within the scope of liability of ∆s (like a
hotel where a sexual assault happens).
 Some courts allow there to be a “sole proximate cause” only, but
the Restatement does not accept that.
 Harm must also be within the scope of risk
- nature or an independent act is also a factual cause of harm, an actor's liability is limited to those harms th
- Restatement (Third) of Torts: Phys. & Emot. Harm § 34 (2010)

o Notes
 Where intervening negligence is considered unforeseeable, original
negligent party will usually escape liability.
 The more reckless an intervening act, the more likely it will be considered
unforeseeable and lead to finding original negligence was not proximate
cause of π’s injury.
 People are usually held liable for all injuries even if they were aggravated
by bad medical care
- Special Situations and Associated Duty
- Owners and occupiers of land

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o Restatement (Third) § 49 – Possessor of Land Defined
 Possessor of land is: (a) person who occupies and controls land, (b) person
entitled to immediate occupation or control of land (if no one for (a)), or
(c) person who had occupied the land and controlled it (if no one for (a) or
(b))
o Restatement (Third) § 50 – Trespasser Defined
 Trespasser is person who enters or remains on land in the possession of
another without the possessor’s consent or other legal privilege.
 Consent is a defense. Public and private necessity also apply.
o Restatement (Third) § 51 – General Duty of Land Possessors
 Subject to § 52, land possessor owes duty of reasonable care to entrants
with regard to (a) conduct by the land possessor that creates risks to
entrants on land, (b) artificial conditions on the land that pose risks to
entrants of the land, (c) natural conditions on the land that pose risks to
entrants on the land, and (d) other risks to entrants on the land when any of
the affirmative duties provided in Ch. 7 (physical harm) are inapplicable
 No position for public employees
o Restatement (Third) § 52 – Duty of Land Possessors to Flagrant Trespassers
 (a) The only duty a land possessor owes to flagrant trespassers is the duty
to not act in an intentional, willful, or wanton manner to cause physical
harm
 (b) Notwithstanding (a), a land possessor has a duty to flagrant trespassers
to exercise reasonable care if the trespasser reasonably appears to be
imperiled and helpless or unable to protect himself.
 Flagrant does not have fixed meaning, but is more than regular
trespasser
o Restatement (Third) § 53 – Duty of Lessors
o Restatement (Third) § 54 – Duty of Land Possessors to Those Not on Possessor’s
Land
o Cochran v. BK (Missouri 1996) – π was walking across BK lot to go to Hardees
to get food. Then he decided to dumpster dive and then tried to climb a wall that
fell, which BK’s management already knew it was unstable. BK said it owed no
duty. Trespassers are not owed a duty of care and invitees are owed protection
against known dangers and those that would be revealed by inspection. Π
contends that he is a licensee. Court rules that he was a licensee, but became a
trespasser when he deviated from what he was invited to do. No evidence that
reasonably prudent person would have believed there was an implied permission
to use the dumpster.
 Duty case
o Nelson v. Freeland (NC 1998) – Person left stick on his porch and another person
was picking him up for work and injured by stick. Court rules that reasonable-care
standard is better than common-law trichotomy. Courts have created exceptions
and subclassifications to get around trichotomy rule, but they often led to broad
and strained definitions that were just used to reach a fair result. Outlines how
rule came from feudalistic/land-based origins. CA abolished the rule with
Rowland which served as catalyst to change. Trichotomy was created at time

46
 where negligence law was not existent, and today, reasonable care standard is
more able to handle different degrees of care to people on land. Trichotomy leads
to irrational results and its premises force many courts to make unjust/unfair
results. Adopting true negligence standard eliminates complex, unpredictable state
of premise liability. This only pertains to licensees/invitees, not trespassers. Π will
get trial where jury can decide if reasonable care was provided by ∆.
o Bennett v. Stanley (Ohio 2001) – Case where π’s wife tried to attempt her son
from a pool and both drowned. Pool was not filled and was not well maintained
and did not have a ladder out of the pool or fence surrounding it. Adopted
attractive nuisance doctrine and held that adult who enters property to rescue child
assumes status of child. Attractive nuisance doctrine does not automatically lead
to liability. Restatement (Second) § 339 says that possessor is liable for harm for
artificial condition that is in a place where children are likely to reach it and
realizes that there is a risk and utility of eliminating danger is slight compared
with risk to child and possessor fails to exercise reasonable care to eliminate
danger. Ohio keeps the trichotomy framework. Attractive nuisance doctrine can
be adopted even without foreseeability. Children are entitled to greater protection
than adults. Further, this extends to the child’s mother who was trying to rescue
her child
 Only applies to artificial conditions
 Ohio has licensees owed same duty of care as trespassers.
 List of rule?
o Posecai v. Wal-Mart Stores, Inc. (Louisiana 1999) – Woman was shopping at
Sam’s and robbed. Π claims that she should have been provided adequate
security. Court uses duty-risk analysis where π must prove that conduct in
question was cause-in-fact of harm, ∆ owed duty, duty was breached, and risk of
harm was within scope of protection. Court rules that business owners have duty
to implement reasonable measures to protect patrons from criminal acts that are
foreseeable. Types of analyses are: (1) specific harm rule where landowner only
has to protect against specific, imminent harm, (2) prior similar incidents test,
which bases foreseeability on evidence of previous crimes on or near premises,
(3) totality of circumstances test, which looks at factors like nature, condition and
location as well (most common approach), and (4) balancing test seeks to address
interests of customers and businesses where high degree of foreseeability will
usually not occur unless it is proven that prior similar crimes occurred (used in
CA and TN). Court adopts the balancing test. Under this rule, the court finds ∆
not liable.
o Notes
 Traditionally, 3 types of people who enter on land (descending order in
who is owed most affirmative duty)
 1. Invitees – visitors with permission to enter and who occupier has
material interest in or visitors invited as member of public for
purpose for which land is held open to public.
 2. Licensees – visitors with permission to enter, but landowner has
no material interest (i.e. social guest)

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  3. Trespassers – entrant without permission (intentional tort) – no
duty of care
o Cannot set booby traps for them though – no wanton or
willful infliction of injury
 There is a scope for licensees.
 Distinguishing between licensees and invitees can be difficult (i.e. case
involving slip and fall after Bible study)
 Some jurisdiction treat foreseeable trespassers as trespassers, but most
treat them as implied licensees.
 There is a duty to rescue someone injured on your land.
 Most courts also rule that dangers open and obvious are relevant evidence
for if landowner breached a duty.
 Some jurisdictions hold that businesses owe no duty to try to correct
criminal acts.
 List of ways to determine scope of foreseeable issues on p. 504
- Immunities
o Brunner v. Hutchinson Division, Lear-Siegler, Inc. (USDC SD 1991) – Son was
injured and manufacturer was sued as ∆ and then sued son’s parent as tp∆. Rules
on parental immunity (in Restatement Second 895). History of parental immunity
comes from Mississippi case. Rationale includes disruption of domestic
tranquility, threat to parental discipline and control, proliferation of fraudulent and
collusive suits, and depletion of family resources. Courts have moved away from
this doctrine, but CA made reasonable parent standard. Court does not want to
interfere in family relationship, so it ruled that father was not liable but not
because of immunity. This is parental privilege and applies only to negligence,
not intentional torts.
o Notes
 Demott emphasized this is not thoroughly covered in this class
 Immunities bar suit, not just liability
 Immunities can be common law or statutory/constitutional provisions
 There is no more charitable immunity by common law
 Historically, there was interspousal immunity, but no longer as we have
become less sexist (GA and LA still have it though).
 Gov’t immunity goes back to ideas of sovereigns who could not be sued.
 USA executive given foreign policy power, leading to some not
being able to sue other countries because of it sometimes
 Lawyers must consider gov’tal immunity
 Parental immunity
 Questions raise from child abuse
- Emotional harm – negligent – NIED
o Catsouras v. Department of the CA Highway Patrol (CA CoA 2010) – Duty case.
Plaintiffs’ family member was decapitated in a car accident, and members of the
California highway patrol leaked her picture by sending it to family/friends as a
Halloween “joke”. Eventually, it was leaked to the Internet and appeared all over
the Internet. Further, πs received emails with rude statements from other people.
Filed a claim for NIED. Court states that NIED is negligence, not a separate cause

48
 of action (so it has the same elements). Special relationship does not apply here;
however, Court applies Rowland v. Christian factors. Duty considerations need to
include foreseeability of harm, degree of certainty that π would suffer injury,
closeness of connection between ∆’s conduct and injury suffered, moral blame
attached to ∆’s conduct, policy of preventing future harm, extent of burden to ∆
and consequences to community of imposing a duty to exercise care with
resulting liability for breach. Cite Christensen which involved a case where the
πs’ family members’ bodies were mutilated at a moratorium. Court says that
contractual relation is not necessary to violate public policy; here, the police’s
duty to help citizens and be sensitive to surviving family members is enough.
Holding is narrow to only saying that CHP and its officers must refrain from
exploiting gruesome images by disseminating to friends and family. Also, Court
wonders if police gave email addresses to their friends and family since the family
received egregious emails. Conclusion is that ∆s owed duty of care to not place
decedent’s death images on the Internet for lurid titillation.
o Falzone v. Busch (NJ 1965) – Uses “zone of danger” rule. π was standing in a
field and saw a car about to hit her, putting her in great fear and her husband was
hit by the car. She greatly feared for herself and had bodily injury because of it.
Physical impact rule is that person must sustain physical impact in order to
recover for infliction of emotional distress. 3 reasons for it outlined in Ward: (1)
physical injury is not natural and proximate cause of negligent act (physical
suffering is not caused merely from fright normally), (2) consensus of bar must
have been that no liability exists in absence of impact because it was the first case
of its kind, (3) “public policy” argument (floodgates argument). Court overrules
this case because the reasons are no longer tenable because medical knowledge
shows that physical injury can be caused by emotional distress. Court has allowed
recovery for all physical injuries from emotional distress even when the negligent
injury caused was slight. Recovery was also permitted when physical suffering
resulted from intentional infliction of emotional distress. Further, the second
reason is faulty because tort law can pave new paths even if not previously
recognized. Finally, third reason is wrong because there is still the difficulty of
proof that will prevent frivolous claims. Therefore, Court holds that Ward is no
longer good law and that when negligence causes fright from reasonable fear of
immediate personal injury, the injured person may recover if bodily injury or
sickness would be regarded as proper elements of damage had they occurred as a
consequence of direct physical injury.
o Molien v. Kaiser Foundation Hospitals (CA 1980) – Court decides to allow
recovery even where there is no physical injury. Π’s wife was negligently told
that she had an STD, which led to her separation from the π. Further, doctor had
told π’s wife to talk to her husband (the π, which made it more foreseeable). Court
rules that risk of harm to π was reasonably foreseeable and that π may recover
even where there is no physical injury if he can present sufficient proof of
suffering emotional harm and loss of consortium. NY CoA (high court) held in
Molien that “freedom from mental disturbance is now a protected interest in this
State.” Court agrees that court must guard against fraudulent claims, but says that
the standard should be if the reasonable man, normally constituted, would be

49
 unable to adequately cope with mental stress engendered by circumstances of the
case. Therefore, court holds there is a duty to refrain from NI of serious ED.
General standard of proof to support a claim is some guarantee of genuineness in
circumstances of the case. Holding is that this is a matter of proof for the trier of
fact to see if there was a breach of duty. Modern psychology leads to better proof
than in the past.
 Problems with physical injury standard
 1) classification is overinclusive because it allows recovery when
there is even minor physical distress and it is underinclusive
because it does not allow all proper claims to come before the
Court.
 2) it encourages extravagant pleading and distorted testimony
 Dissent – Uses floodgate argument and says that majority opens door for
frivolous claims. Worries about limiting principle. IIED claims are only
ones where Court should allow recovery for just emotional distress.
o Portee v. Jaffee (NJ 1980) – Issue was whether bystander can recover for NIED in
watching son die after accident caused by ∆’s negligence. Π’s son was killed
when trapped in an elevator while the mother watched. Court rules that law
should find more pity for someone who is stricken by seeing a loved one that has
been critically injured or killed. Three factors for foreseeability from Dillon in
CA: (1) whether π was at the scene of the accident (foreseeable likelihood that π
will suffer emotional distress), (2) whether the shock resulted from direct
emotional impact upon π from sensory or contemporaneous observance of
accident (limitation to rule), and (3) whether π and victim were closely related
(only most profound emotional interests should receive vindication for negligent
injury). Quotes Palsgraf saying that “risk reasonably to be perceived defines duty
to be obeyed.” Observation of death is critical and it can only apply to death or
same type of serious injury to permit recovery. Whether duty exists is question of
fairness and inquiry involves weighing relationship of parties, nature of risk, and
public interest in proposed solution.
 Rule – elements
 1. Death or serious injury of another caused by ∆’s negligence
 2. Marital or intimate, familial relationship between π and injured
person
 3. Observation of death or injury at scene of accident
 4. Resulting severe emotional distress
o McDougall v. Lamm (NJ 2012) – π’s dog was killed by another dog as she looked.
Wanted an NIED claim for recovery. Court ruled that dog relationship is not
enough to be the same as familial relationship (because pets are considered
chattels). ∆ conceded liability and paid for new dog ($5000 which was more than
$1200 that dog was worth). Court ruled that companion animals are more like
works of art to get higher monetary value, but that there was not an NIED claim.
o Boyle v. Kerr (Texas 1993) – Duty case. Suit was for NIED, but court treats it like
IIED claim. Boy had sex with a girl and had friends film it. It was distributed by
showing the film multiple times (it was pre-Internet) and injury was the gossip
and perception of other people. Court ruled that NIED cannot be an independent

50
 cause of action and that mental anguish damages must be in connection with ∆’s
breach of some other duty imposed by law. Court uses physical injury standard.
Court only holds that there is no general duty to negligently inflict emotional
distress. Can still recover for emotional distress after breach of another duty.
Some courts allow independent cause of action for severe emotional distress, but
this does not allow for a general rule. Similarly, special relationship does not
apply here, but only IIED cases.
 Points out that few jurisdictions have general duty related to NIED claims
and states that Molien changed 9 years after it was found because court
declared that “negligent causing of emotional distress is not an
independent tort …”
 Concurrence – Says that this is deep-pocket case and sexist toward women
to assume that they may have emotional distress more than men.
 Demott says that special relationship maybe should have applied because
it was foreseeable that she would feel betrayed and it was her first time.
o Restatement (Third) § 45 – Emotional Harm
 “Emotional harm” means impairment or injury to person’s emotional
tranquility.
 When emotional harm produces bodily harm, bodily harm governs
o Restatement (Third) § 47 – Negligent Conduct Directly Inflicting Emotional
Harm on Another
 An actor whose negligent conduct causes serious emotional harm to
another is subject to liability to the other if the conduct: (a) places the
other in danger of immediate bodily harm and emotional harm results
from danger, or (b) occurs in the course of specified categories of
activities, undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional harm
 “zone of danger” rule applies
 (b) usually applies to dead bodies
 Only applies with serious emotional harm
o Restatement (Third) § 48 – Negligent Infliction of Emotional Harm Resulting
from Bodily Harm to a Third Person
 An actor who negligently causes sudden serious injury to a third person is
subject to liability for serious emotional harm caused thereby to a person
who: (a) perceives the event contemporaneously and (b) is a close family
member of person suffering bodily injury.
o Notes
 Mishandling of corpse cases are usually upheld as a cause of action under
NIED. These are under breach of contract claims most of the time unlike
Catsouras.
 (Restatement (Second) § 868). These actions are ones for “severe
emotional distress”.
 If a party fails to communicate about a death or negligently communicates
that there was a death that did not happen, then there can also be an NIED
claim.
 NIED claims are negligence claims and have the same elements.

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  Court in Falzone held that “zone of danger” rule applied because ∆ was at
risk of injury. Many courts now follow that the physical impact
requirement is not necessary for recovery.
 Sufficient body injury does not include sleep deprivation, loss of
appetite, or dizziness.
 Sometimes, πs can win exposure cases where π was within zone of danger
or subject to physical impact. (i.e. π can win on NIED when fear of
developing asbestosis).
 More likely to win HIV exposure than carcinogen exposure
 Falzone held that there must be reasonable foreseeability, but most courts
invoke the “eggshell psyche” rule, meaning that full extent of damages
may be recovered.
 Typically, cases must be very horrible. Patterns include (1) courts decline
duty if frequency and scope of emotional harm cases and there are
evidentiary concerns, courts will decline to impose duty. (2) foreseeability
and gravity of harm are not normally determinative. (3) horribleness must
be sufficiently extraordinary.
 Molien left CA courts confused of how to apply standard. However, it held
in Burgess (1994) that foreseeability was useless because emotional
distress is always foreseeable. Struggle is over indirect infliction of
distress (to third-party).
 Not all courts require being at scene of the accident (i.e. parents learning
of their child’s molestation).
 Courts have imposed duty where there was a mistaken, but reasonable
belief about serious injury.
 Duty also has been extended to unmarried cohabitants.
- Other Actor’s Conduct
- Contributory Negligence
o Butterfield v. Forrester (England – King’s Bench, 1809) – Contributory
negligence rule: “A party is not to cast himself upon an obstruction which has
been made by the fault of another, and avail himself of it, if he do not himself use
common and ordinary caution to be in the right.” There must not be want of
ordinary care by the plaintiff. “But for” π’s negligence, he would not have been
injured.
o Smithwick v. Hall & Upson Co. (Connecticut 1890) – Proximate cause case. Π
went over to a part of a scaffold he was not supposed to (no reason was given
why). A wall fell and there was no reason to think the wall would fall and hurt π.
Therefore, even though he was negligent because he went where he was told not
to, the cause of his injuries was not due to his negligence, but solely because the
wall was faultily built. Had the injury been due to his misstep or he had somehow
fallen because of his negligence, contributory negligence could apply, but that
was not the case here. Negligence was not cause-in-fact of the injury.
o Notes
 Contributory negligence is treated as an affirmative defense
 It can be used as a defense to an action based on defendant’s violation of a
statutory duty except when a statute imposes absolute liability, statute is

52
 aimed to protect a limited class of persons, or the plaintiff is a workman
injured because of the violation of a factory safety act
 *Contributory negligence is not a defense for intentional torts
 It requires that a π also had a duty and breached that duty.
 It must be specifically pleaded
 Only 5 places is it a complete defense today (VA and NC are two of
them).
- Comparative Negligence
o Hoffman v. Jones (Florida 1973) – Comparative negligence is that π may only
recover the proportion of damages for which he is not responsible. There is no
reason to hold on to contributory negligence (because we favor individuals over
industry). If juries disregard the judge’s instructions, that is also evidence that the
rule is outdated. Florida joins the trend of allowing contributory negligence.
Florida adopts the “pure form” of comparative negligence (meaning there is
liability for whatever part is the fault of the π). The judgment is in favor of
whoever has the larger verdict (plaintiff or cross-plaintiff).
o Bradley v. Appalachian Power Co. (West Virginia 1979) – Courts that adopt pure
comparative negligence rest their holdings on: (1) contributory negligence is
draconian in operation, (2) legislative solution of apportioning π’s fault up to 50%
is an arbitrary line drawing lottery, and (3) pure comparative negligence rule is
fairer. New judicial rule of this court is that a party is not barred from recovering
damages in a tort action as long as negligence does not equal/exceed combined
negligence or fault of other parties. Modification of contributory negligence rule
so that π can recover for amount of injuries diminished by % of contributory
negligence. Does not like pure form because that makes everyone in the action a
potential π.
o Restatement (Third) (apportionment and liability) § 7 – Effect of π’s negligence
when π suffers an indivisible injury
 Π’s negligence (or the negligence of another person whose negligence the
π is responsible) that is a legal cause of an indivisible injury to the π
reduces the π’s recovery to the share of responsibility the factfinder
assigns to the π.
 Basic framework for comparative responsibility.
 Π’s negligence does not affect recovery unless it was a legal cause
to the injury.
 With modified comparative responsibility – π is not barred unless
he is more than 50% at fault for the injury.
o Restatement (Third) (apportionment and liability) § 8 – Factors for Assigning
Shares of Responsibility
 Factors for assigning percentages of responsibility to each person whose
legal responsibility has been established include: (a) the nature of the
person’s risk-creating conduct, including any awareness or indifference
with respect to the risks created by the conduct and any intent with respect
to the harm created by the conduct; and (b) the strength of the causal
connection between the person’s risk-creating conduct and the harm.

53
  Factfinder assigns shares of responsibility, not fault, negligence, or
causation.
 Relevant factors include nature of each person’s risk-creating
conduct ad the comparative strength of the causal connection
between each person’s risk-creating conduct.
o Notes
 Jury determination of how to apportion fault.
 Change from contributory to comparative negligence
 Jurisdictions are split when ∆’s negligence is willful and wanton.
 Pure comparative negligence – equally allocates damages of those at fault
(like admiralty law)
 Modified comparative negligence – helps people with legitimate claims
against those more at fault, but with much more damages (ex. of Ferrari
owner harming a Camry owner)
 WI statute says fault should be “not greater than” other side’s fault.
- Last Clear Chance to Avoid Injury
o Restatement (Second) § 479 – Last Clear Chance: Helpless Plaintiff
 Plaintiff who negligently subjected himself to a risk of harm from ∆’s
subsequent negligence may recover for harm caused thereby if,
immediately preceding the harm, (a) the plaintiff is unable to avoid it by
the exercise of reasonable vigilance and case, and (b) the defendant is
negligent in failing to utilize with reasonable care and competence the
existing opportunity to avoid the harm, when he (i) knows of the
plaintiff’s situation and realizes or has reason to realize the peril involved
in it or (ii) would discover the situation and thus have reason to realize the
peril, if he were to exercise the vigilance which it is then his duty to the π
to exercise.
o Restatement (Second) § 480 – Last Clear Chance: Inattentive Plaintiff
 A plaintiff who by the exercise of reasonable vigilance could discover the
danger created by ∆’s negligence in time to avoid the harm to him, can
recover if, but only if, the ∆ (a) knows of π’s situation and (b) realizes or
has reason to realize that the π is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and (c) thereafter is negligent
in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.
o Notes
 Common justification for last clear chance doctrine is that ∆’s conduct
was proximate cause of the accident.
 Last clear chance is not necessarily inconsistent with comparative fault.
 This can save enormous amounts of damage
 Not likely applicable in pure contributory negligence regimes.
 Kinsmann – bridge case – example of this doctrine
- Assumption of the Risk of Injury
o LaFrenz v. Lake County Fair Board (CoA Indiana, 1977) – π was killed after she
signed a contract that said that she would assume risk at a monster truck rally. The
liability agreement had clear language that this was a waiver of release. Rule for

54
 assumption of the risk is that parties are allowed to agree in advance to enter an
agreement to exculpate a party of liability. Exceptions not allowing the rule: (1)
legislature creates statute (like one not allowing indemnity where sole negligence
is by one party), (2) if bargaining is not open and free, (3) ∆ performs a public or
quasi-public duty. Contracts that let π assume the risk must be done “knowingly
and willingly.” This case had equal bargaining power and the waiver was
sufficient, so the ∆ is free from liability because a reasonable man would
understand that this assumes the risk.
o Herod v. Grant (Mississippi 1972) – π was riding on the back of ∆’s truck so they
could shoot deer. Π fell off. Rule for assumption of the risk: (1) knowledge on the
part of the injured party of a condition inconsistent with his safety, (2)
appreciation by the injured party of the danger in condition, and (3) a deliberate
and voluntary choice on the part of the injured party to expose his person to that
danger in such a manner as to register assent on the continuance of the dangerous
condition. Assumption of the risk is governed by the subjective standard of the
plaintiff himself while contributory negligence is measured by the objective
reasonable man standard. Assumption of the risk is a jury question. Held that trial
court should have sustained the defendant’s motion for directed verdict at the
conclusion of plaintiff’s testimony.
o Jones v. Three Rivers Management Corp. (Pennsylvania 1978) – Person injured at
Pittsburgh Pirates game. Appellees contend that baseballs being batted in a
baseball stadium do not create an unreasonable risk of harm. Appellant says this is
limited to injuries that occur during a game, not that hit a person behind the stands
and they cannot see the source of danger. Rule: Operators are only liable for
injuries that fail to use reasonable care in construction/maintenance/management,
having regard to the character of exhibitions given and the customary conduct of
patrons invited. Exception: π introduces adequate evidence to show that injury
occurred in way different from the inherent risk of going to the game. Here, π was
hit on a walkway where she could not watch the game at the same time, so there
was not assumption of the risk (so there was a duty that was breached). Π was
injured by a risk not inherent to baseball.
 About whether there is a “no duty” rule
o Auckenthaler v. Grundmeyer (Nevada 1994) – Plaintiff was hurt while horseback
riding after another horse (that had recently been castrated) kicked her in the leg
while she was riding her horse. Implied assumption of the risk has 3 categories:
(1) primary implied assumption of the risk when π accepts known risks involved
in a particular situation and ∆ has no duty, (2) π voluntarily encountering a known
risk created by the ∆’s negligence, and (3) π unreasonably accepts a known threat
of danger in pursuing a particular course of conduct. CA adopted pure
comparative negligence, but primary implied assumption of the risk is a complete
defense. However, Nevada does not recognize implied assumption of the risk
because it the comparative negligence statute made that the law instead of implied
assumption of the risk. (Focus is on breach of duty). Court focuses on a lack of
breach of duty in these cases rather than a lack of duty. Negligence standard is
more attractive than assumption of the risk because: (1) it is malleable and jury

55
 looks at if ∆ was unreasonable under circumstances and (2) the floodgates
argument is overstated.
o Restatement (Third) apportionment and liability § 2 – Contractual Limitations on
Liability
 When permitted by contract law, substantive law governing the claim, and
applicable rules of construction, a contract between the π and another
person absolving the person from liability for future harm bars the π’s
recovery from that person for the harm. Unlike a π’s negligence, a valid
contractual limitation on liability does not provide an occasion for the
factfinder to assign a percentage of responsibility to any party or other
person.
o Restatement (Third) apportionment and liability § 3 – Implied Assumption of
Risk and Consent
 A person’s voluntary choice to engage in conduct that reflects a full
preference to accept a risk of harm fully known to the person bars
recovery for that harm.
o Restatement (Third) apportionment and liability § 4 – Proof of π’s negligence and
legal causation
 ∆ has the burden to prove π’s negligence, and may use any of the methods
a π may use to prove ∆’s negligence. The ∆ also has the burden to prove
that the π’s negligence was a legal cause of π’s damages.
o Notes
 Under “express assumption of the risk” rather than implied assumption of
risk.
 Major divide between express and implied assumption of the risk
 Express assumption of the risk is a complete defense
 Implied assumption of the risk will be more like a comparative
responsibility analysis.
 Binding contracts are different than if a truck said “not liable for broken
windshield from product that becomes loose”. Signs in parking lots
similarly do little.
 Consent is focused on specific activities – i.e. Polemus
 Most courts want a clear release.
 Courts generally do not honor release agreements, no matter how clear,
when they involve conduct more blameworthy than negligence.
 Assumption of the risk like in Herod is more likely in comparative
negligence now.
 To have assumption of the risk, person must know that there is a risk to
their safety/appreciate the danger and voluntarily choose to be part of it.
 In intentional torts, even consent often does not free liability.
 Baseball – inherent risk rule – limited to those in stands.
 Most jurisdictions put all assumption of the risk in comparative negligence
except primary implied assumption of the risk. However, some have
included that in comparative negligence too.
 There is a split on how these apply to seatbelts and motorcycle helmets

56
  In terms of religious beliefs, the jury is allowed to consider them when
people refuse medical treatment and the like.
 Risk is assumed when not assuming risk means not participating in
activity.
 Impalement artist example
- Multiple ∆s; Vicarious Liability
o Wong-Leong v. Hawaiian Independent Refinery, Inc. (Hawaii 1994) – Office
party case. Pua hanas happened every Friday and there were multiple other parties
after work. The company knew about the parties, but did not ban alcohol
consumption until after the accident. Rule: under respondeat superior, an
employer may be liable for the negligent acts of its employees that occur within
the scope of employment. Under Restatement (Second) of Agency § 228 – person
can be held responsible when conduct of servant is that which he is employed to
do, it occurs within the authorized time and space limits, and it is actuated by a
purpose to serve the master. Π must establish (1) that a negligent act of employee
is the legal cause of π’s injury and (2) that the negligent act was within the
employee’s scope of employment. The court ruled that the negligent act could be
the cause of the injury (a jury question), and that whether the employee was
acting within the scope of employment was a question of fact (a reasonable trier
of fact could infer that the promotion party was a custom incident to the enterprise
and not just a social function). Therefore, the company could be held vicariously
liable.
o Jones v. HealthSouth Treasure Valley Hospital (Idaho 2009) – π was killed during
a surgery when someone put a cuff around a blood reinfusion bag that was not
supposed to be on there. Issue is apparent agency (worker seems to be working
for the hospital even though employed by contract). Court finds that hospital may
be found liable under apparent agency theory. General rule is that a principal is
immune from liability for the negligence of an independent contractor or that of
its employees in contracted services; however, an exception occurs when an
employer is hired for services and person reasonably believes services are done by
employer or its servants (apparent agency). Elements of apparent agency: (1)
conduct by principal that would lead person to reasonably believe that another
person acts on the principal’s behalf, and (2) acceptance of the agent’s service by
one who reasonably believes it is rendered on behalf of the principal.
o Restatement Third of Agency § 7.05 – Principal’s negligence in conducting
Activity through Agent; Principal’s special relationship with another person
 Liable for agent if because of principal’s negligence in selecting, training,
retaining, supervising, or otherwise controlling agent
o Restatement Third of Agency § 2.04 – Respondeat Superior
 An employer is subject to liability for torts committed by employees while
acting within the scope of employment.
o Restatement Third § 55 – Direct Liability in Negligence to Those Who Hire
Independent Contractors
 Actor who hires an independent contractor to perform an activity that
creates risk of physical harm or who is under any affirmative duty and
hires an independent contractor is subject to liability for physical harm

57
 when actor’s negligence is a factual cause of any harm within the scope of
liability subject to duty limitation in § 56
o Restatement Third § 56 – Duty Limitation as to Work Entrusted to Independent
Contractor
 (a) actor who entrusts work to an independent contractor owes no duty as
to the manner in which the work is performed by the contractor except as
provided by (b)
 (b) when actor entrusts work to independent contractor but retains control
over any part of the work, actor has duty of reasonable care as to exercise
of the retained control
o Restatement § 57 – Usually there is not vicarious liability for independent
contractors except in § 58-65
o Restatement Third Apportionment of Liability § 13 – Vicarious Liability
 Person whose liability is imputed based on the tortious acts of another is
liable for the entire share of comparative responsibility assigned to the
other, regardless of whether joint and several liability or several liability is
the governing rule for independent tortfeasors who cause an indivisible
injury
o Notes
 Vicarious liability is when one ∆ is held for the conduct of another
 Joint tortfeasors are when 2 ∆s have caused the injury together
 When intentional torts happen within the course of employment, courts are
more willing to impose vicarious liability.
 Some jurisdictions look at the “course of employment” instead of the
“scope”.
 Vicarious liability is automatic. It does not require fault of the employer
(like strict liability).
 Focuses on negligence of the employee, not the employer.
 It is a proximate cause issue
 Restatement (Second) and Restatement (Third) of Agency are different
because the third emphasizes that the employee’s conduct must serve the
employer some purpose.
 Other types of vicarious liability
 Parent-child vicarious liability – i.e. Singer v. Marx
 Joint enterprise – when business or firm performs a joint venture
 Automobile owner – Some States allow for vicarious liability for
owners of vehicles
 Hypo: Timmy the financial transaction advisor example
 Apparent authority – third-party believes person is an agent (third-party’s
belief must be reasonable).
 Different State SCs treat this differently
- Strict Liability
- Animals
o Duren v. Kunkel (Missouri 1991) – Person bought bull and it injured a fellow
farmer. Rule: a possessor of a dangerous animal that he knows or has reason to
know has dangerous propensities abnormal to its class is subject to liability for

58
 ham done by the animal to another, although he has exercised the utmost are to
prevent it from doing harm (Restatement 2nd § 509) (Rule for dangerous animals).
Strict liability does not require fault by the owner. Here, there was not strict
liability because there was no evidence that the bull had a vicious propensity
different from other bulls, However, there is a claim for negligence, so it is
remanded.
o Restatement Third § 21 – Intrusion by Livestock and Other Animals
 An owner or possessor of livestock or other animals, except dogs and cats,
that intrude upon the land of another is subject to strict liability for
physical harm caused by intrusion
o Restatement Third § 22 – Wild Animals
 (a) an owner or possessor of a wild animal is subject to strict liability for
physical harm caused by the wild animal.
 (b) A wild animal is an animal that belongs to a category which has been
generally domesticated and which is likely, unless restrained, to cause
personal injury.
o Restatement Third § 23 – Abnormally Dangerous Animals
 An owner or possessor of an animal that the owner or possessor knows or
has reason to know has dangerous tendencies abnormal for the animal’s
category is subject to strict liability for physical harms caused by the
animal which ensue from that dangerous tendency
o Notes
 Strict liability is liability without proof of fault.
 What is considered a wild animal depends on the circumstances
 One bite rule
- Dangerous Activities
o Rylands v. Fletcher (Exchequer Chamber, 1866) – ∆s were free from blame when
they built a pond that ended up going through to an old mineshaft. Question is
whether the duty is to take reasonable precaution or is an absolute duty. Rule is
that a person who brings on his lands and collects/keeps there anything likely to
do mischief if it escapes must keep it in at his peril, and, if he does not do so, is
prima facie answerable for all the damage which is the natural consequence of its
escape. Plaintiff did not take the risk upon himself, so he should not be liable for
∆s actions
o Rylands II (House of Lords, 1868) – If π’s damage occurred because of natural
circumstances, he would not have reason to complain; however, because the
causes were not natural, the ∆s did the activity at their own peril. Previous case
should be affirmed. If person brings something that can cause damage due to
escape, then the person is liable for that damage.
o Losee v. Buchanan (NY 1873) – Steam boiler explosion case. Boiler exploded and
landed on another’s property. Court does not hold ∆ strictly liable because if he
does something on his land and is not at fault for a malfunction, he is not
responsible for damage. (Demott credits this to America being different from
England). Law applied to wild animals should not be applied to inanimate objects.
There must be negligence for there to be fault.
 America is also less densely populated than England

59
 o Notes
 There is a gravitational force towards negligence
 Two theories of liability (from 11/10/14)
 (1)
 Types of strict liability
 Vicarious liability – committed within scope of employment?
 Wild animals – was injury due to wild animal’s characteristic?
 Apparent agency – ?
 There still must be a causal line.
 England had strict liability as an extension of the law of nuisance.
 Losee rejects Rylands because rejecting risk must be allowed with caution
 England moved away from the rule in Rylands, but the US still accepts it
 Limiting principle: what is natural?
 Res ipsa is similar to this doctrine.
 Most American jurisdiction embraced the Rylands strict liability doctrine.
 First Restatement definition is that ultrahazordous activity necessarily
causes risk and is not a matter of common usage.
 Second Restatement (§ 520) has 6 factors deciding whether something is
dangerous: (a) existence of a high degree of risk of some harm to the
person, land or chattels of others; (b) likelihood that the harm that results
from it will be great; (c) inability to eliminate the risk by the exercise of
reasonable care; (d) extent to which the activity is not a matter of common
usage; (e) inappropriateness of the activity to the place where it is carried
on; and (f) extent to which its value to the community is outweighed by its
dangerous attributes.
 “ultrahazordous” became “abnormally dangerous”
 factor-based test instead of rule-based test from first restatement
o weight and sequencing of the factors is unsure
 “non-natural” in Rylands has been construed to mean not natural for where
the activity took place.
- Pyrotechnics; blasting; abnormally sensitive victims
o Klein v. Pyrodyne Corp. (Washington 1991) – Fireworks display case. Court
holds that fireworks are strictly liable because it is an abnormally dangerous
activity. Cites Rylands. Lists § 520 factors and says that multiple are needed for
strict liability. Essential question is whether the risk is so unusual to justify strict
liability. Court finds factors (a)-(c) are present in fireworks. Administrative
regulations show danger. Washington held that there must be (a)-(c) and one of
the (d), (e), or (f) factors. The court finds that fireworks are not a matter of
common usage. Compares fireworks to dynamite. Statute also imposes strict
liability. Concurrence says that statute is decisive and no other court has adopted
common law rule of strict liability against fireworks (does not think (c) and (d)
are present).
 Res ipsa doctrine could also have been used here
 Level of generality of specificity matters (does it matter that spectators
chose to be there

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o Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (7th Cir. 1990) – Court
rules that carrying chemicals through Chicago is not an abnormally dangerous
activity. Most of the § 520 cases involve dynamite or other explosives. The
chemical, acrylonitrile, has 52 things (including gasoline) higher than it on a list
of dangerous materials, which would require finding strict liability for all of those.
The negligence regime is adequate to fit this case, and no case recognizes such
sweeping liability. Further, railroads depend on cities and they are the center of
activity, so going around is not plausible. The relevant activity here is
transportation. Focuses on activities rather than products.
 Posner is saying why res ipsa is a better claim than strict liability here
(because it is not unreasonably dangerous)
o Foster v. Preston Mill Co. (Washington 1954) – Scared mink case. Court rules
that ∆ is not liable for a mother mink getting scared and killing its young because
that is not within the scope of strict liability of how people are usually injured by
blasting activities. There is not strict liability for a π’s extraordinary and unusual
use of land.
o Restatement Third § 20 – Abnormally Dangerous Activities (goes back to rule
approach)
 (a) A ∆ who carries on an abnormally dangerous activity is subject to strict
liability for physical harm resulting from the activity.
 (b) an activity is abnormally dangerous if: (1) the activity creates a
foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and (2) activity is not a matter of
common usage.
 There must be a highly significant risk with the activity even when
reasonable care is used. Must fulfill both (b) criteria to be
abnormally dangerous.
o Restatement Third § 24 – Scope of Strict Liability
 (a) Strict liability under § 20 is limited to physical harms that are
characteristic of the risks posed by the abnormally dangerous activity
o Restatement Third § 25 – Comparative Responsibility
 If π is contributorily negligent in failing to take reasonable precautions,
π’s recovery in strict liability is reduced in accordance with share of
comparative responsibility assigned to π.
o Restatement Third § 29 –
o Notes
 Must have a statutory (or possibly regulatory) presences
 These usually have negligence claims and the question is what should
have strict liability claims as well.
 Deciding if something is abnormally dangerous is a judge question, not a
jury question.
 Strict liability is usually not imposed outside the context of competing
land usage.
 Can’t be abnormally dangerous if a lot of people do it.
 Places where strict liability is used most
 Blasting – quintessential example

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  Transportation and storage of gasoline – used with gas station
locations
 Impoundments – mixed whether strict liability applies to reservoirs
and other bodies of water.
 Application of poisons – some courts say cropdusting is an
abnormally dangerous activity
 Landfills and Toxic Waste – Tricky because previous
organizations may have been properly following regulations at the
time. – statutory considerations are now the focus of toxic waste
liability
 Atomic Energy
 Restatement Second § 524 says that there is not strict liability for harm
caused by an abnormally dangerous activity if the harm would not have
resulted but for the abnormally sensitive character of π’s activity.
 Suits against the U.S. for strict liability are not permitted. The Federal
Torts Claim Act has been held not to include strict liability claims.
 Under the Coase theorem, once liability is assigned between parties
 Interesting economic theory on pp.821-822 (not useful for test)
- Products Liability
- The privity barrier; warranty claims
o Thomas v. Winchester (NY 1852) – Belladonna case. The question is who is
responsible in the chain of custody for the damage. Court differentiates this case
with precedent by saying that the π buying the poison in the bottle is not like a
wagon that was not properly maintained by A that injured D after a chain of
custody. Death or injury from putting a poison in a medicine bottle is the natural
and almost inevitable consequence of the manufacturer’s negligence. The damage
was likely to happen to a remote purchaser. By affixing the label to the jar, ∆ took
the responsibility of what was in the jar. Concurrence says that this was a
violation of a statute already.
 There were 6 steps in the chain of events.
 Husband was an agent because he was getting the medicine for her.
 Limiting to privity would have made the liability be on the doctor instead
of the producer
 People likely to be consumers are the ones who should have the
claim
 There was a duty here because the person worked with poisonous drugs.
 The misrepresentation being “super material” is important to the case. –
justifiable reliance was necessary.
o MacPherson v. Buick Motor Co. (NY 1916) – Cardozo case. Wheel collapsed on
an automobile and no defect could have been noticed upon reasonable inspection.
Early cases narrowly structured products liability cases, but they have become
broader with time (i.e. a case with an exploding coffee urn). Court extends the
rule to not be limited to poisons, explosives and the like, but to things which in
their normal operation are implements of destruction. If the nature of a thing is
such that it is reasonably certain to place life and limb in peril when negligently
made, it is then a thing of danger. Its nature gives warning of the consequences to

62
 be expected. There must be knowledge of probable danger. If negligent and
danger was foreseen, then manufacturer is liable for the damage. A known danger
based upon a known use makes a duty. Court acknowledges that jurisdictions are
split upon this issue. The ∆ is responsible because it was the manufacturer of the
finished product. Dissent says that this case overrules precedent.
o Restatement Second §402B – Misrepresentation by Seller of Chattels to
Consumer
 One engaged in the business of selling chattels who, by advertising, labels
or otherwise, makes to the public a misreprentation of a material fact
concerning the character or quality of a chattel sold by him is subject to
liability for physical charm to a consumer of the chattel caused by
justifiable reliance upon the misrepresentation even though (a) it is not
made fradulantly or negligently, and (b) the consumer has not bought the
chattel from or entered into any contractual relation with the seller.
o Restatement Third § 1 – Liability of Commercial Seller or Distributor for Harm
Caused by defective products
 One engaged in the business of selling or otherwise distributing products
who sells or distributes a defective product is subject to liability for harm
to persons or property caused by the defect.
o Restatement Third § 7
 Duty of prescription-drug manufacturer is to warn doctor, not patient
directly
o Restatement Third § 9 – Liability of commercial product seller or distributor for
harm caused by misrepresentation
 One engaged in the business of selling or otherwise distributing products
who, in connection with the sale of a product, makes a fraudulent,
negligent, or innocent misrepresentation of material fact concerning the
product is subject to liability for harm to persons or property caused by the
misrepresentation.
 Follows §402B for innocent misrepresentation.
o Notes
 Thomas v. Winchester (NY) is first case where the ∆ was liable when there
was not a privity of contract.
 Loop v. Litchfield (NY) was another case where the wheel which caused
the injury was not in itself a dangerous instrument and injury was not a
natural consequence or one to be reasonably anticipated.
 Macpherson shows how the court tries to make cases less controversial by
saying precedent already decided the issue.
 For breach of warranty, courts have typically held that a seller’s warranty
extends to any natural person who may be expected to use the product.
 Warnings – pp.837-39
 UCC § 2-313 – Express warranties – any part of the good that is a
basis for the bargain, any description of the goods that is a basis for
the bargain, and any sample/model which is made part of the basis
of the bargain. Word “warrant” or “guarantee” are not needed

63
  UCC § 2-314 – Implied Warranty; Merchantability; Usage of
Trade
 UCC § 2-315 – Implied Warranty; Fitness for Particular Purpose –
There is an implied warranty if person relies on skill of merchant
 UCC § 2-316 – Exclusion or Modification of Warranties –
Exclusion of warranties can happen with words that call readers’
attention to exceptions to warranty. If person does not examine
product, there is not an implied warranty.
 Some States still do not have products liability under tort theory and there
still needs to be a negligence case (NC is one)
 It is rare to see a products liability claim when the only injury is failure of
the product to perform as expected
 In products liability, duty is focused on the product itself
- Strict liability in tort
o Greenman v. Yuba Power Products, Inc. (CA 1963) – π owned a Shopsmith that
worked well for awhile, but then it injured him. Brought defective design claim
and showed that an alternate design could have prevented injury. Manufacturer
says that it was given insufficient notice of a breach of warranty, but court rejects
this. Π’s claim is not barred. Manufacturers are strictly liable in tort when an
article it places on the market, knowing that it is to be used without inspection for
defects, proves to have a defect that causes injury to a human being. Costs of
injuries by products should be paid by the manufacturers that put the products on
the market rather than the injured persons.
 There is no inquiry into process in this case because it is one of defective
design.
o Restatement Second §402A – Special Liability of Seller of Product for Physical
Harm to User or Consumer
 (1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user or consumer, or to
his property, if (a) the seller is engaged in the business of selling such
product and (b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it was sold.
 (2) The rule in (1) applies although: (a) seller has exercised all possible
care in the preparation and sale of his product, and (b) the user or
consumer has not bought the product from or entered into any contractual
relation with the seller.
 ALI does not express an opinion as to whether rules apply to harm
to persons other than users/consumers, seller of the product
changed the product, or to the seller of a component part of a
product to be assembled.
o Restatement Third § 1 – Liability of Commercial Seller or Distributor for Harm
Caused by Defective Products
 One engaged in the business of selling or distributing products who sells
or distributes a defective product is subject to liability for harm to persons
or property caused by the defect.

64
 o Restatement Third § 2 – Categories of Product Defect
 Product is defective when it contains a manufacturing defect, design
defect, or is defective because of inadequate instructions/warnings. A
product:
 (a) contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised in
preparation and marketing of the product
 (b) is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the seller or other distributor,
or a predecessor in a commercial chain of distribution, and the
omission of the alternative design renders the product not
reasonably safe;
 (c) is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not
reasonably safe.
o Notes
 Escola (CA 1944) held that even though there was no negligence for an
exploding soda bottle, there had to be liability because public policy
demanded it. Close relationship between producer and consumer has been
altered.
 Used res ipsa
 When product self-destroys, res ipsa is often used.
 If defect couldn’t be noticed, then there can’t be negligence.
 Rule does not apply to occasional sellers (i.e. person selling car to his
neighbor), but it does to people in the business of selling.
 Strict liability made everyone in the chain of distribution who sells a
defective product a proper ∆.
 Defining a defect still has a negligence framework because a π still must
show that the ∆ owed a duty and breached that duty.
 Sellers are not liable when they sell the product in a safe condition
 Rule applies only where defective condition makes it unreasonably
dangerous to the user or consumer.
 Case law recognized three types of defects: (1) manufacturing, (2) design,
and (3) warning
 Third Restatement replaced §402A with 21 sections.
 Third Restatement is more reactive while the 402A was pioneering
the field
 Moves more toward alternative design
- Manufacturing defects
o Smoot v. Mazda Motors of America, Inc. (7th Cir. 2006) – π was injured when an
airbag deployed after she hit a large pothole and sued because Mazda had

65
 indicated that there was a problem with her car’s airbag. Other parts of the car
were damaged. Wisconsin law allows res ipsa to apply to products liability, but it
does not apply here because π did not have expert testimony to show that the
airbag would have deployed without her negligence. The expert did not meet the
Fed. R. of Evidence requirements to have testimony based on sufficient facts, be
the product of reliable principles, and that the expert applied the principles and
methods reliably to the facts of the case. Π fixed the car and got rid of it before it
could be inspected.
 Arguing for damage to the car, π would have to argue that airbag
deploying caused her to mess up the front of her car.
 Time makes it harder to win on a manufacturing defect case
 There was spoliation of the evidence.
o Restatement Third: Products Liability § 3 – Circumstantial Evidence Supporting
Inference of Product Defect
 It may be inferred that the harm sustained by the π was caused by a
product defect existing at the time of sale or distribution, without proof of
specific defect, when the incident that harmed the π: (a) was of a kind that
ordinarily occurs as a result of product defect, and (b) was not, in the
particular case, solely the result of causes other than product defect
existing at the time of sale or distribution.
o Notes
 Restatement 2(a) governs this
 Problem with most manufacturing defects is proving that defect existed
when it left manufacturer.
 Res ipsa and circumstantial evidence differ because res ipsa focuses on
negligence doctrine and the second element in each is different. In res
ipsa, the things must be in ∆’s control while in circumstantial evidence
while in circumstantial evidence, the product must have left ∆ in defective
condition.
 Food is defective if reasonable consumer would not expect the food
product to contain the ingredient (like fishbone in chowder).
- Design defects
o Branham v. Ford Motor Co. (South Carolina 2010) – Bronco flipping case. Π was
injured (while not wearing a seatbelt) when a Bronco II flipped. For products
liability claims, π must establish: (1) that he was injured by the product, (2) that
the product was in essentially the same condition as when it left the hands of the
∆, and (3) that the injury occurred because the product was in a defective
condition unreasonably dangerous to the user. Court dismissed negligent seatbelt
sleeve claim; however, the design defect claims should have gone to the jury
because there was sufficient expert evidence (and a helpful fact witness) that
showed that there could be a design defect that Ford knew about at the time and
there was an alternative design that could have been used. There are 2 tests for if a
product was unreasonably dangerous as a result of design defect: (1) consumer
expectations test and (2) risk-utility test. The consumer expectations test is
whether a product is or is not defective depends on whether the product is
unreasonably dangerous given the conditions and circumstances that foreseeably

66
 attend use of the product. The risk-utility test is that numerous factors must be
considered including the usefulness and desirability of the product, the cost
involved by added safety, likelihood and potential seriousness of injury, and
obviousness of danger. Court ruled that either test was ultimately a jury question
and verdict can survive a JMOL, but the court adopts the risk-utility test as the
exclusive test because the legislature prefers strict liability for products liability.
Looks at §2(b) of Restatement 3rd products liability. A product is not in defective
condition just because it can be made safer. Π must present evidence of a
reasonable alternate design in the new retrial under the risk-utility test. 3 reasons
why reverse and remand: (1) whether a product is defective must be measured
against information known at time product was placed in stream of commerce, (2)
evidence of similar incidents is admissible where there is a substantial similarity
between other incidents and the accident in dispute tending to prove or disprove a
fact in the controversy, and (3) Branham’s closing argument was a direct appeal
to the passion and prejudice of the jury. Focus must be on evidence of facts
available at the time of the manufacturer, not facts found later in order to prove
alternate design. Ford had a duty to design and manufacture the Bronco II as
reasonably safe.
 4 states do not accept strict liability (NC, VA, Delaware, and
Massachusetts)
 Fact that closing argument was inflammatory is one reason for retrial.
 The design defect is said to have enhanced the injuries of the π.
 In Restatement 2nd 402A, questions would have been if the product was in
defective condition and unreasonably dangerous.
 Restatement 3rd 2(b) moves toward negligence law
 Reasonable alternative design must be presented
o Riley v. Becton Dickson Vascular Access, Inc. (USDC ED Penn 1995) – Design
defect case about π who was stuck with a needle and contracted HIV. Court uses
the risk-utility approach and looks at (1) usefulness and desirability of the
products (its utility), (2) safety aspects of the product (likelihood of injury), (3)
availability of substitute product, (4) manufacturer’s ability to eliminate the
unsafe character of the product without impairing its usefulness, (5) user’s ability
to avoid danger by exercise of care, (6) user’s anticipated awareness of the
dangers inherent in the product and their avoidability, and (7) the feasibility of
spreading the loss of setting the price of the product or carrying liability
insurance. Each party places different weight on different factors. (1) The product
is essential to modern medicine. (2) The product is safe and only 1-2 workers will
contract HIV each year with a very low risk. (3) An alternative product may be
safer (but it may have not been) and (4) the cost of training everyone and
purchasing the other type of needle is quite high. (5) even using extreme caution
cannot fully enable a healthcare worker to completely avoid danger. (6) π ha
knowledge about danger. (7) Market should not completely change because of 3
accidents in 16 years. Therefore, product is not defective.
 2 injuries: (1) the needle stick, that did not cause a lot of damage, and (2)
the contraction of HIV (big injury but not likely).
 There was a patent for the safer device by another company

67
  Costs are allowed to be on the hospital (from workers’ comp) instead of
on the needle company.
o Grundberg v. Upjohn Co. (Utah 1991) – Court rules that something approved by
the FDA cannot be held defective as a matter of law. Π killed her mother and said
it was because of a drug she took. Claimed inadequate warning and design defect.
Court follows comment k of 402A that sellers are not strictly liable for useful
products when their use produces “unfortunate consequences.” Rule: a product
may be deemed unavoidably unsafe and exempt from strict liability design defect
cause of action only if the court concludes (1) product was intended to provide an
exceptionally important benefit and (2) risk posed was substantial and
unavoidable when distributed. 3 public policies mitigating against imposing strict
liability for prescription drugs: (1) drug manufacturers might stop producing
valuable drugs because of lost profits resulting from lawsuits or the inability to
secure adequate insurance, (2) consumers have a vested interest in prompt
availability of new pharmaceutical products, and (3) added expense of insuring
against strict liability and additional research programs might cause the cost of
medication to increase to the extent that it would no longer be affordable to
customers. The FDA’s regulatory scheme for making a preliminary determination
regarding whether a prescription drug’s benefits outweigh its risk. FDA-approved
drugs get a broad grant of immunity for design defects. The dissent does not think
there should be such broad blanket immunity because profit motivations can lead
to more unnecessarily dangerous drugs. Further, nonuniformity is allowed in
negligence claims.
 Court looks at category as a whole and says that FDA approved drugs
should be allowed
 Opinion has been criticized for reliance on the FDA – should use a
case-by-case basis
o Restatement Third of products liability § 6 – Liability of Commercial Seller or
Distributor for Harm Caused by Prescription Drugs and Medical Devices
 (a) A manufacturer of a prescription drug or medical device who sells or
otherwise distributes a defective drug or medical device is subject to
liability for harm to persons caused by the defect. . .
 (b) For purposes of liability under (a), a prescription drug or medical
device is defective if at the time of sale or other distribution the drug or
medical device: (1) contains a manufacturing defect as described in § 2(a);
or (2) is not reasonable safe due to defective design as described in (c); or
(3) is not reasonably safe due to inadequate instructions or warnings as
defined in (d).
 (c) A prescription drug/medical device is not reasonably safe due to
defective design if the foreseeable risks of harm posed by the drug or
medical device are sufficiently great in relation to its foreseeable
therapeutic benefits that reasonable health providers would not prescribe
the drug or medical device for a class of patients.
 This was formally 402 comment k, but it is more restrictive.
 (d) A prescription drug or medical device is not reasonably safe due to
inadequate instructions or warnings if reasonable instructions or warnings

68
 regarding foreseeable risks of harm are not provided to: (1) prescribing or
other healthcare providers who are in position to reduce the risks of harm
in accordance with the instructions or warnings; or (2) patient when the
manufacturer knows or has reason to know that healthcare providers will
not be in a position to reduce the risks of harm in accordance with
instructions/warnings.
 (e) a retail seller or other distributor of a prescription drug or medical
device is subject to liability for harm caused by drug/device if: (1) at the
time of sale or other distribution the drug or medical device contains a
manufacturing defect as defined in § 2(a); or (2) at or before the time of
sale or other distribution of the drug/medical device the retail seller or
other distributor fails to exercise reasonable care and such failure causes
harm to persons.
o Notes
 7 factor test on p. 874 – alternative to 402A test
 incorporate consumer expectations as part of risk-utility equation
 Risk-utility was not applied some places because the fear was that it
reintroduced negligence concepts into a strict liability area.
 Risk-utility balancing test is like a more detailed version of Hand’s
calculus from Carroll Towing.
 Courts typically do not like negligence and products liability theories to go
to the jury.
 If a product’s defect is obvious, people can often not recover under either
a negligence theory or a strict products liability theory.
 Crashworthiness cases are when the π contends that the defect made the π
have further damage due to a defect.
 Some States have adopted statutes adopting design defects having to be
when product was designed, not known after the fact.
 Most jurisdictions have refused to conclude that all prescription drugs are
unavoidably unsafe.
- Warning Defects
o Johnson v. American Cynamid Co. (Kansas 1986) – π claimed that he got polio
because of ∆’s vaccine (a Sabin vaccine). There was an alternate vaccine, that was
no longer in production at the time, that was weaker and not generally
recommended by the AMA (the Salk vaccine). The Sabin vaccine is
recommended, but people knew that an extremely infrequent, but predictable ratio
of people would contract the disease. There is no manufacturing or design defect,
so the one possible liability is that the manufacturer inadequately warned the
physician. In determining whether a warning is adequate, the test is
reasonableness. The warning here did say that there was a chance of a person
getting the disease, but instances were very rare. Here, the warning was approved
by the FDA and is consistent with the overwhelming bulk of medical opinion.
Therefore, there was no liability and a motion for directed verdict should have
been entered.
 Dissent says π was denied his right to trial by use of directed verdict and
that an adequate warning requires that vaccinees are directly informed by

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 the drug manufacturer: (1) reasonably foreseeable risk inherent in the
product, (2) reasonable available alternative products and the reasonably
foreseeable risks posed by such alternatives; and (3) reasonably
foreseeable results of remaining untreated. Here, the warning was not as
good as in other cases because the warning deemphasizes the potential
effect of the product. This was an issue of fact, not one of law.
 Does not involve a design defect because there was no longer an alternate
design.
 Warning cases assume that there is no safer design
o Restatement Third § 9 – Liability of Commercial Product Seller or Distributor for
Harm Caused by Misrepresentation
 One engaged in business of selling or distributing products who makes a
fraudulent/negligent/innocent misrepresentation of material fact
concerning the product is subject to liability for harm to persons or
property caused by misrepresentation
 No requirement to show product is defective
o Restatement (Third) § 10 – After Sale Responsibilities
 Duty to provide warning if seller knows that product poses substantial
risk, those who can be warned can be identified, warning can be
effectively communicated, and risk of harm is sufficiently great to justify
burden of warning
o Restatement (Third) § 17 – Apportionment of Responsibility Among π, Sellers
and Distributors of Defective Products
 Contributory negligence applies.
o Notes
 Pharmaceutical companies must now warn consumers directly.
 Presumption is that plaintiff read the warning in 2nd Restatement (3rd
Restatement does not)
 There is a rebuttable presumption in these cases that π would have
read it if it had been offered – if ∆ can prove that π does not read or
heed anything.
 Congress eventually passed a statute where it taxed vaccine companies in
order to pay for things like the Sabin vaccine (but limits the amount
recoverable for pain and suffering).
 Adequacy of warnings is also an issue (i.e. saying that an adhesive was
extremely flammable did not warn a worker the worker that near fire
included pilot lights 10 feet away).
 Courts also take into account information costs.
 Learned intermediary rule is an exception to the original rule that
manufacturer must war the user of risks associated with the product. Bulk
supplier is a second exception.
 Liability limited to what is foreseeable
- Economic Injury
- The “economic loss” rule/doctrines and exceptions; breach of fiduciary duty
o Aikens v. Debow (WV 2000) – π owned a lodge that was not easily accessible for
a few weeks because of a crash on the interstate. Court cautions against extending

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 duty too far. Traditionally, there was no recovery for economic loss that was not
related to a physical impact. Courts must not allow the negligence of men to
follow down a chain of results to a final effect. The minority rule (started by NJ)
is to allow a special foreseeability rule where ∆ is liable only for damages
proximately caused and requiring that the ∆ must have “knowledge or special
reason to know” of the consequences of the tortious conduct in terms of the
persons likely to be victimized and the nature of the damages likely to be
suffered. However, this was used in a case limiting it to a particularized group
(poisonous gas released into a building, making it akin to direct physical damage).
Another CA case that illustrates the point was predicated on the existence of a
special relationship. Court rules with majority rule and says that physical harm to
property is necessary to recover for economic damages and the injury must be
clearly foreseeable. However, special and narrowly defined relationships can have
a tortfeasor liable (ex. auditors have been held liable to πs who bought stock upon
a financial statement negligently prepared). Allowing this action would open the
floodgates of future action.
 There is a causation issue over whether the truck wreck was the cause-in-
fact and the proximate cause of the accident.
 Oppen held that physical injury is compensable and oil contacting
property, but economic injury was not.
o Notes
 General rule: one does not owe a duty to not cause solely economic loss to
another. However, there are a few exceptions.
 Introductory points
 (1) Economic tort cases involve parties who are not complete strangers
normally.
 Scope and content of tort liability differs from personal injury. Ask
two questions: (1) what does this theory provide to the π that is
different from the contract remedy? (2) what in theory explains the
existence of this other remedy, given the availability of contract
law?
 Usually only applies in relationships that courts have determined
justify the special protections of a tort remedy for at least one party
to the transaction.
 (2) there are usually multiple theories of liability, some that overlap and
some that do not.
 (3) litigation of economic injury covers a vast variety of commercial
actors and transactions, from writing a will to hundreds of transactions by
multinational corporations
 (4) litigation relating to economic injury involves many common law
theories and concepts, but also frequently relies on statutory theories.
 (5) claims for economic injury involve a much wider range of remedial
and damages theories than personal injury claims.
 A fiduciary is one that another has justifiably placed trust and confidence
to act in the best interest of the other. – can be a question of law or fact
 Fiduciary is tied to agency, but it can arise even when there is not agency.

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  The rule used in Aikens is known as the “economic loss rule” and it is a
“no duty” rule.
 The rule does not mean (1) that all loses that are economic are not
recoverable (i.e. wages and medical expenses) or (2) that tort law
exempts all wrongful conduct that causes only economic loss.
 Most jurisdictions follow some version of this rule though.
 Nonstranger contexts are those when there is a contractual
relationship. Stranger ones are when there is not.
 Oil spill case (Exxon Valdez) only had limited liability. The Act
allowed for some pure economic loss.
 Fiduciary duties involve people who can expect loyalty, not just
reasonable care. (Con-Edison case could be an example).
- Intentional misrepresentation, i.e. fraud
o Follo v. Florindo (Vermont 2009) – ∆s fraudulently stated and created reports that
their bed and breakfast was doing better than it actually was. Π decided to enter
the innkeeping business, and paid a certain amount based upon their reports. He
soon found out that he had been lied to and he gained a jury verdict for a large
amount (however, the court allowed a remittitur and π agreed). The elements of
fraud are: (1) ∆s misrepresented an existing fact which affected the essence of the
transaction with πs or knowingly allowed another to make such a representation
on ∆’s behalf, (2) ∆s did so intentionally, and (3) the misrepresentation was false
when made and known at the time to be false by a ∆ or it was recklessly made
(with indifference to the truth). Fraud exists not only when speakers know their
statements are false, but also when the statements are “made in such a reckless
manger that the law will presume them to be made with knowledge.” Here, there
was sufficient evidence for a reasonable jury to find that ∆s committed fraud
under the actual knowledge and the reckless standard. Even though one ∆ did not
say anything, she committed fraud by messing with the business records; a
reasonable jury could have discredited her testimony as false and inculpatory.
Punitive damages also could have been sent to the jury because fraud is an
intentional act. Remittitur was proper thought and the court did not abuse
discretion
 They were also paying extra income tax to cover up their fraud.
 Fraud requires that person knew statement was made and that other person
justifiably relied on the statement (subjective standard).
o Notes
 Misrepresentations can lead to personal injury or purely economic loss
 Fraudulent misrepresentation is also known as “deceit” or “intentional
misrepresentation.”
 There are different formulations for fraud depending on the State. All
require a particular state of mind and that ∆ meant to induce reliance.
 Most courts allow either “benefit of the bargain” or “out-of-pocket”
damages (but some only allow the out-of-pocket amount). Benefit of the
bargain is how much the person thought they were getting.
 Consequential damages are also an issue and they are amounts that are in
addition to the other ones that are a consequence of misrepresentation.

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  Mental anguish – usually not allowed by the courts.
 Justifiable Reliance – Most courts require that π relied on information and
had reason to. The matter must also be material (a reasonable man would
attach importance to its existence or nonexistence or the maker of
representation knows or has reason to know the other person is relying on
it). If someone has tried out a product themselves, they may not have had
reason to follow the statements of the other person. Opinions are treated
differently than other statements of fact. This is usually a question of fact.
Third parties that have reason to believe a statement may also be able to
sue for fraud.
 Breach of contract claims do not necessarily equal fraudulent
misrepresentation claims.
 Physical injury can happen because of misstatement of material fact (i.e.
Kriger Institute).
 Failure to get consent in medical setting is not fraud.
 Broska was not a fraud because there was not an injury.
 Belladonna case also had negligent misrepresentation because the label
was a misstatement of material fact (it doesn’t matter how the
misstatement was made)
 Fraud is unusually socially wasteful. Reckless statements can also be fraud
(i.e. lawyer not checking a lien and there being one).
 There is a general duty to not commit fraud. But there is no general duty to
not act carelessly in a way that causes economic loss.
- Negligent Misrepresentation
o Ellis v. Grant Thornton LLP (4th Cir. 2008) – π decided to become president of
Keystone bank partially because of an audit done by ∆. Bank collapsed after audit
did not notice that bank did not have $515M in loans that it claimed it did. Π had
willingly left previous job. 4 possible approaches to resolving the question of
what circumstances an accountant can be liable to 3rd parties for negligent
misrepresentation: (1) From Ultramares Corp. (NY), which held negligence
actions were only permitted by parties in privity of contract or in a situation so
close as to approach that of privity, (2) NY approach in 1985 – relaxing strict
doctrine to one that “sufficiently approached privity”, (3) § 552 of Restatement
2nd – Person or limited class of persons who the auditor can foresee as parties who
will rely upon financial statements are allowed to recover, and (4) reasonably
foreseeable approach – all reasonably foreseeable recipients of financial
statements for business purposes to recover as long as they rely on the statements
for those business purposes. WV adopted the 3rd approach. Restatement is
deliberately restrictive to encourage the free flow of commerce. The six elements
used here requires the injured party to prove: (1) inaccurate information, (2)
negligently supplied, (3) in the course of an accountant’s professional endeavors,
(4) to a third person or limited group of third persons for whose benefit and
guidance the accountant actually intends or knows will receive the information,
(5) for a transaction that the accountant intends to influence or knows that the
recipient so intends, and (6) with the result that the third party justifiable relies on
such misinformation to his detriment. Π did not prove (4)-(6); the audit report was

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 not intended to be used by third parties. It was merely for the benefit of
Keystone’s board and not potential employees. For the fifth element, π had to
prove that accountant knew what risks he was undertaking when he delivered the
challenged report and then an objective comparison to see if negligent
misrepresentation extends to all transactions of the type or kind that the maker
intends or has reason to expect. It would essentially have to have been an entirely
different report. Further, Ellis knew he was not supposed to justifiably rely on the
statement.
o Notes
 Many of the same elements as fraudulent misrepresentation – must be
justifiable reliance and suffer harm. However, the person only needs to not
have exercised reasonable care, not have been deceitful.
 Auditors are watchdogs, not bloodhounds and look at reports the company
gives them.
 Only 2 states today retain the foresight rule.
 Contributory negligence is not a defense – either as an absolute bar or in a
comparative way – as to intentional misrepresentation claims. (1) a π’s
negligence might have contributed to the alleged error in the audit in the
first instance, (2) π’s alleged negligence might be in relying on the results
of the audit or the professional advice – a ∆ who loses on the “no
justifiable reliance” point still might try the comparative negligence
argument and seek a comparative reduction in the damages, (3) the π’s
negligence might increase the size of the losses caused by the audit.
 Negligence against lawyers can either be negligent misrepresentation or
professional negligence.
 Not like res ipsa cases because auditors rely on businesses to give accurate
information.
 Jurisdictions look at this issue very differently.
 NJ – this is negligence and should use same elements as other
negligence (generalizable principle)
 Majority follows restatement like the 4th Cir. did.
o Deliberately restrictive standard to protect the economy.
- Exam Specific
o Exam could be based on a State, can pick an admiralty question (2nd Circuit),
could hypothesize a jurisdiction or use one like Ohio or NC (which are lagging).
Could also be in the position of the American Law Institute
o 4 hours – cannot access computer
 No commercial outlines
 Only book, restatement, and print materials
o More than one question – likely 2 or 3
o Evaluate pluses and minuses of different approaches

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