TORTS FINAL OUTLINE – DOLIN – FALL 2011 Introduction A. Definition: A tort is defined as a civil wrong, other than a breach of conduct, for which society is willing to give a remedy. Harm is required. A person who breaches a tort duty (i.e., a duty to act in a manner that will not injure another person) has committed a tort and may be liable in a lawsuit brought by a person injured because of that tort. Tort law is a fault based system. B. Theories in Tort Law: 1. Traditional View - Corrective Justice: The system of thought that the purpose of tort law is to hold D’s liable for harms they wrongfully caused and to enable P’s to recover compensation for the wrongs committed against them. 2. Social Utility or Policy: The system of thought that the purpose of tort law is to encourage socially responsible behavior. The good of society as a whole is viewed as dominant to the justice of an individual. 3. Redistributive Justice – Who is best suited to absorb the costs? C. Tort law is the only branch of law still governed by common law. Intentional Torts 1
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TORTS FINAL OUTLINE – DOLIN – FALL 2011
Introduction
A. Definition: A tort is defined as a civil wrong, other than a breach of conduct, for which
society is willing to give a remedy. Harm is required. A person who breaches a tort duty (i.e.,
a duty to act in a manner that will not injure another person) has committed a tort and may be
liable in a lawsuit brought by a person injured because of that tort. Tort law is a fault based
system.
B. Theories in Tort Law:
1. Traditional View - Corrective Justice: The system of thought that the purpose of tort law
is to hold D’s liable for harms they wrongfully caused and to enable P’s to recover
compensation for the wrongs committed against them.
2. Social Utility or Policy: The system of thought that the purpose of tort law is to
encourage socially responsible behavior. The good of society as a whole is viewed as
dominant to the justice of an individual.
3. Redistributive Justice – Who is best suited to absorb the costs?
C. Tort law is the only branch of law still governed by common law.
Intentional Torts
A. Definition: Intentional torts share the requirement that the defendant intentionally commit the
elements that define the tort. The actor need not intend to commit a harm.
1. ACT + INTENT + CAUSATION
2. ACT
a. Acts are external manifestations of an actor’s will. Uncontrolled movements do not
qualify as acts.
1. Example: A is riding her bike. She is stung by a bee and loses control of her bike.
It crashes into B. There is no intent for battery
2. Example: A has a seizure. During her convulsing, she kicks B, causing injury.
There is no intent for battery.
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3. INTENT
a. Intent can be defined as either specific or general.
1. Specific Intent –Actor intends to bring about the consequences which occur.
2. General Intent – Actor knows with substantial certainty that the consequences are
likely to occur from his actions.
A. Garratt V. Dailey: Boy moved chair as woman was sitting down in it. He
stated he did not know she was sitting down. Trial court found him innocent
because he lacked intent. Holding: He may not have intended to hurt her, but
he acted with substantial certainty that his actions might cause her to fall.
Liability Imposed.
b. Rule of Transferred Intent: Intent can be transferred. If person A has the intent to
injure person B, and his actions result in an injury to person C, person A is liable for
person Cʼs injuries. Intent can also transfer from one intentional tort to another.
1. Only applicable for torts of – assault, battery, false imprisonment, trespasses to
chattels, and trespass to land.
2. Example: A is injured by B while trying to break up a fight. Holding: A suffered
a battery, based on the rule of transferred intent.
3. Example: A intends to scare B with a gun (assault). The gun accidentally fires,
shooting B. A is liable for the battery of B.
c. Extended Liability: People are liable for all wrongdoings that result in an intentional
tort, no matter how extreme.
1. Egg-shell Skull Rule – D is liable for all injuries resulting directly from their
wrongful act whether they could or could not be foreseen by him. (Ex. Vosburg v.
Putney – D loses use of his leg due to pre-existing condition aggravated by light
kick by P – P is liable.)
2. Example: A pushes B in frustration. B stumbles on something as a result, falls,
and breaks his neck. He becomes paralyzed. A is liable for Bʼs medical bills.
d. Insanity and Infancy – Typically, neither insanity nor age is a defense to intentional
torts. However, if the actor is incapable of forming intent (either general or specific)
due to incapacity or age, then it may be a defense.
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e. Rule of Parental Liability: In most cases, parents do not have liability for the torts of
their children (i.e., are not vicariously liable) unless a separate tort of negligence can
be proven against them.
4. CAUSATION
a. The harm resulting must have been caused by D’s act or from something set in
motion by his act.
B. Battery
1. Definition – D intentionally causes an unwanted harmful or offensive contact with V.
a. A and B always fist bump on the way out of class. A goes to fist bump B, but misses
and punches him in the face instead? Battery? No, because it wasn’t an unwanted
touch.
2. Does not require intent, only requires that a touch occur.
3. Contact may be with something attached to one’s person (ex. a purse, clothing, etc…).
4. Contact may be direct or indirect (ex. D digs a hole intending to set a trap that V falls
into).
5. Whether contact is considered harmful or offensive is judged by the standard of a
reasonable person.
6. Actual damage need not occur.
7. V need not be aware of harmful or offensive contact at the time it happens (ex. a patient
who has an unauthorized surgery performed on her while she is unconscious).
C. Offensive Battery
1. Requires intent to cause the offensive touch.
2. Conduct which offends a reasonable sense of personal dignity or which is so outrageous
that it shocks the conscience.
a. Ex. Cohen v. Smith – P was pregnant and having an emergency C-Section. P notified
hospital that it was against her religious belief to be seen by any men. During
procedure, she was seen and touched by a male nurse. She sued for battery.
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D. Assault
1. Assault is either (1) an attempt to cause harmful contact or (2) to cause apprehension of
such contact.
2. Apprehension must be reasonable.
3. Apprehension must be of immediate harmful or offensive contact (ex. NOT threats from a
distance or of future harm).
4. V must be able to perceive the immediate harmful or offensive contact (ex. not asleep or
unconscious at the time of the threat)
5. V must believe that D will carry out their threat
6. Apprehension is not the same as fear (ex. V may know that they can defend themselves).
7. Apprehension is not dependent upon D’s ability to carry through with harmful or
offensive contact (ex. D points unloaded gun at V but V does not know the gun is
unloaded)
8. Words alone are typically not enough to constitute assault, however words with an overt
act are (“give me your money or I’ll kill you” while pointing a gun at V)
E. False Imprisonment
1. In false imprisonment, the defendant unlawfully acts to intentionally cause confinement
or restraint of the victim within a bounded area.
2. Generally, it is not considered unlawful if the restraint or detention is reasonable to the
surrounding circumstances (such as preventing one from inflicting injury to other persons
or property)
3. The confinement may be accomplished by (1) physical barriers; (2) force or threat of
immediate force against the victim, the victim's family or others in her immediate
presence, or the victim's property; (3) omission where the defendant has a legal duty to
act (ex. driving to texas, get to texas and decide to keep driving, don’t stop to let V out
when they ask you to); or (4) improper assertion of legal authority. Moral pressure and
future threats are not sustainable forms of false imprisonment.
4. Accidental confinement is not included.
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5. Bounded area can be small or large (ex. an entire city), but if there is a reasonable avenue
for V to escape (of which they are aware) then the elements have not been satisfied.
a. “three walls do not a prison make”
b. The way out can’t be dangerous, disgusting, hidden, or humiliating
6. V must be conscience of imprisonment.
7. Amount of time V is restrained is not relevant.
8. Special Rules for Shop Owners Restraining Suspected Shoplifters
a. Most states grant stores a privilege to detain either by statute or case law. In order
for the privilege to apply, the following conditions must be satisfied:
1. There must be a reasonable belief that theft has occurred
2. The detention must be conducted in a reasonable matter
3. The detention must be only for a reasonable matter of time
F. Intentional Infliction of Emotional Distress
1. Intentional infliction of mental distress exists when D, by extreme and outrageous
conduct, intentionally or recklessly causes V severe emotional distress.
a. Must be directed towards on specific individual and must be done in front of at least
one witness.
2. It is judged on an objective standard based on ALL of the facts and circumstances.
3. Extreme and outrageous conduct is behavior which is beyond all possible bounds of
decency and is regarded as atrocious, and utterly intolerable in a civilized community.
4. Examples include extreme business practices (such as collections) and misuse of
authority. Obscene and abusive language typically does not constitute outrageous
conduct, but it may if it is directed toward a V who is more sensitive to such language
(ex. pregnant women, the elderly, children, etc…)
5. Third-party victim recovery is available only if, in addition to proving the elements of the
tort, V is (1) a close relative of the primary V; (2) present at the scene of the outrageous
conduct against the primary victim; and (3) D knows the close relative is present.
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G. Trespass to Land
1. Trespass to land is the intentional invasion onto V’s land, remaining on V’s land, or
failing to remove something from V’s land which you are under a duty to remove
2. Intent to trespass is not required, only an intent to “be where you are” (ex. a hiker who
unknowingly wonders onto private property is still trespassing)
3. Accidental trespass is not unlawful
4. Does not require harm as an element of the tort.
5. Land includes those areas above and below the ground surface (ex. low flying aircraft
and tunneling). Land also includes those items on it (trees, flowers, pipes, etc…)
6. Trespass to land does not require D’s physical entry upon it. Trespass could be cause by
ones pond flooding onto V’s land, throwing something on to V’s land, or chasing a third
party onto V’s land.
7. Trespass also applies to objects, thus sounds and odors could be considered a trespass.
H. Trespass to Chattels
1. D acts with the intention of interfering with the property of another OR with knowledge
that such interference is substantially certain to result.
2. P must suffer harm from such interference.
Defenses to Intentional Torts
A. Insanity
1. Insanity is not a defense to intentional torts.
2. POLICY ISSUE: In a case of two innocents, it is only fair that the guiltier of the two
parties pay.
3. POLICY ISSUE: Where an insane person has paid another to encounter a particular
danger associated with their mental illness, the insane person should not have to pay
again if they cause damage to the person they have paid to care for them. This is not an
assumption of risk issue for the caretaker but rather a policy issue in general.
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B. Consent
1. Expressed or Implied Consent negates tortious behavior.
a. Expressed consent is typically given in words.
b. Implied consent occurs when, under the circumstances, V’s actions reasonably
convey consent.
2. Consent can also be implied by law (ex. EMS officials are assumed to have consent to
perform medical procedures in emergency situations on unconscious V’s).
3. Consent achieved by fraud or duress is an invalid defense.
4. General waiver’s are not acceptable, consent must be for a specified act
5. Consent is invalidated if D’s acts go beyond the scope of V’s consent (ex. extending
medical procedures unless the extension of the procedure is warranted by a life
threatening condition and consent cannot be acquired).
C. Necessity
1. A person may interfere with the property of another in so far as the interference is
reasonable and necessary to prevent a threatened injury from natural or other forces and
where the threatened injury in substantially more serious than the trespass undertaken to
avert it.
a. Public Necessity – D acts for the public good (ex. shooting a rabid dog). Public
necessity is a complete defense.
b. Private Necessity – D acts to protect a private interest (ex. tying up a boat to a P’s
dock during a storm w/o P’s permission). Private necessity is an incomplete defense:
D is privileged to interfere with another's property, but is liable for the damage.
1. POLICY ISSUE: Law of Economics – by choosing to protect his private
interests, D is electing to pay resulting damage to P rather than to assume a
greater damage upon his own property.
D. Self-Defense
1. Reasonable force can be used where one reasonably believes that such force is necessary
to protect oneself from immediate harm.
2. Self-defense must be in response to an immediate threat of harm.
3. Amount of force exerted should be the amount reasonably necessary to prevent harm to
oneself.
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4. Retreat is typically not required before use of self-defense, but majority find that retreat
should be attempted, when it can be done safely, before using deadly force.
5. Applies to third parties (ex. In attempting to protect oneself, D accidentally hurts a
bystander. D may assert self-defense claim against bystander for any injuries.)
6. May also claim defense of others if there is a reasonable belief that the person being
aided would have had the right to use self-defense.
E. Defense of Property
1. May use reasonable force to prevent a tort against one’s real or personal property.
2. Use of deadly force to protect ones home is only acceptable when the occupant’s safety is
in immediate danger.
Negligence
A. Definition: To recover for negligence, P must establish each of the following elements by a
preponderance of the evidence (that is, by more than 50%): duty, standard of care, breach of
duty, cause-in-fact, proximate cause and damages.
1. POLICY ISSUE: The fundamental policy of negligence law is to encourage individuals
to change their behavior to conform with that which is expected by society.
DUTY
A. Standard Duty of Care
1. Everyone has a legal duty to act as a reasonably prudent person in the same or similar
circumstances and to take precautions against creating an unreasonable risk of injury to
other persons
2. POLICY ISSUE: while people can engage in whatever legal activities they choose to,
once those activities cause harm to others, they have a duty to stop partaking in those
activities
3. Duty of care is owed only to foreseeable victims
4. Unforeseeable victims – D breaches a duty of care to one P which also causes damage to
an unforeseen victim
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a. Example: Example: An employee of D negligently aided a passenger boarding a train,
causing the passenger to drop a package. The package exploded, causing a scale a
substantial distance away to fall upon a second passenger. Is the second passenger a
foreseeable plaintiff?
1. First view in Palsgraf, P2 may establish the existence of a duty extending from the
D to her by showing that D has breached a duty he owed P1. In short, D owes a
duty of care to anyone who suffers injuries as a proximate result of his breach of
duty to someone.
2. Second view in Palsgraf (majority view), P2 can recover only if she can establish
that a reasonable person would have foreseen a risk of injury to her in the
circumstances, i.e., that she was located in a foreseeable “zone of danger.”
A. Some activities are so dangerous that the zone of duty does not apply (ex.
throwing an explosive device)
B. Special Standards
1. Beginners And Experts – The reasonable person standard establishes the minimum
expectation for duty of care, although those who can perform at a higher level are
expected to do so. Thus, while the law does not ratchet down the standard of care for
beginners (they are still held to the reasonably prudent person standard), it does ratchet
up for experts in that the jury may take D’s expertise into account in determining whether
D behaved as a reasonably careful person with the same experience would have.
2. Mentally Ill – The general rule is that mental disabilities and insanity are not defenses.
However, institutionalized individuals are typically held to an objective standard of care
and are generally not liable to workers paid to care for them.
a. POLICY ISSUE: Reason behind this is that it is better to hold them to the objective
standard of a reasonably prudent person than a subjective standard. It would be
difficult to determine how a reasonable insane person would act or to determine if in
fact a person was suffering from a mental illness or simply lying to outwit the system.
3. Physical Disabilities – A person with a physical disability must act as a reasonably
prudent person would with the same disability (ex. it may be negligent for an epileptic to
drive a car, a blind person must use a walking stick, etc…).
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4. Children – Most jurisdictions ratchet down the standard of care for children to that which
would be expected of ordinary children of the same age, intelligence, and experience.
a. This rule typically does not apply when the child engages in an inherently dangerous
or “adult activity” such as driving.
b. POLICY ISSUE: It would be illogical to ask the public to change their duty of care
to each individual car on the road, so we must hold all drivers to the same standard.
C. Affirmative Duties
1. Duties of Landowners
a. Under the common law approach, the measure of the duty owed depends on the status
of the person entering the land – whether the entrant is a “trespasser,” a “licensee,” or
an “invitee.”
b. Trespassers – are those who enter or remain on the property of another without the
permission (express or implied) of the land owner. The only obligation imposed on
land owners is to refrain from willfully harming the trespasser.
1. If the land owner knows or has reason to know of frequent trespassing, then an
obligation to warn of hidden dangers known to the land owner and risking serious
injury or death may be imposed. No warning of inherent dangers is required.
2. A land owner who knows of a trespasser's presence must use reasonable care for
the protection of the trespasser in carrying on activities.
3. Attractive Nuisance Doctrine – Landowners owe a duty to exercise ordinary care
to avoid reasonably foreseeable risk of harm to children caused by artificial
conditions (not natural ones like cliffs) on their property. To assess D’s liability,
P must show the following (1) the landlord knows about the condition and knows
children are likely to trespass, (2) the condition could cause an unreasonable risk
of harm, (3) the children do not discover or realize the risk, (4) the costs to
maintain/eliminate the danger are slight in comparison to the risk, (5) the landlord
fails to exercise reasonable care to eliminate the risk and protect the children.
c. Licensee - someone who enters the land with the express or implied consent of the
land owner, as is the case with social guests. Owner is required to warn of known
dangers. An owner has no duty to ward of dangers which are not known to him, but
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he cannot be willfully blind to such dangers. Owner is not required to warn of open
and obvious dangers.
d. Invitees - those who enter the land for the benefit of the land owner. Owners must use
reasonable care in maintaining the premises and in their activities for the safety of
invitees. This often entails taking affirmative steps to discover dangers on the
property. The obligation of the land possessor to an invitee is one of reasonable care.
2. Duty of Rescue
a. The general rule remains that a person does not have a duty to aid another, even
where the person could have rendered aid with little risk or effort.
b. The exception to the no-duty-to-rescue rule applies when the need for rescue arises
because of D’s negligence.
c. While people generally have no obligation to intervene, once they do, a duty arises.
There are different views about the extent of the obligation: under the traditional
view, once a person undertakes to rescue, he must not leave the victim in a worse
position; under the more modern view, the rescuer is obligated to act reasonably once
he has begun to act.
d. Standard of care for good Samaritans is typically to the “best of his abilities”
3. Duty to 3rd Person’s
a. Generally a person has no obligation to control another person's conduct to prevent
harm to a third person, exceptions arise where there is a special relationship. For a
duty to exist there must be some sort of relationship involving some degree of control
by D over the perpetrator (ex. ER-EE, doctor-patient, parent-child, landlord-tenant)
combined with knowledge (actual or constructive) of the need for control.
1. Tarasoff v. Regents of University of California, P’s asserted that D, a therapist,
had a duty to warn them or their daughter of threats made by D's patient.
b. Mere knowledge of future harm does not create a special relationship.
c. Even if 3rd party knows of perpetrators violent tendencies, he need not warn the
public at large, only identifiable V’s.
d. Foreseeability of the risk is a primary consideration in establishing the element of
duty towards 3rd persons. (Ex. where radio host spurred on reckless conduct by
listeners it should have been foreseeable that an accident may have ensued.)
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e. D may also be liable for supplying a potentially dangerous instrumentality (such as a
car or gun) to a person that D knows or should know is not fit to handle it.
4. Special Relationships
a. POLICY ISSUE: There seems to be a movement to find a duty to aid or protect in
any relation based on dependence or mutual dependence.
b. A D having a special relationship to P (e.g., parent-child, employer-employee) may
be liable for failure to act if P is in danger.
c. Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit
have a duty to use reasonable care to aid or assist their patrons and to prevent injury
to them from third persons.
d. A landlord/tenant relationship may trigger a duty to protect, provided there is enough
foreseeability of harm and it is supported by public policy.
1. Where a landlord maintains under his own control the common parts of the
building (stairs, halls, etc…), he has a duty to all those on the premises to take
reasonable measures to provide protection against foreseeable harm in those
areas.
5. Vicarious Liability
a. Scope of Employment - Doctrine of Respondeat Superior
1. A master/employer will be vicariously liable for tortious acts committed by her
servant/employee if the tortious acts occur within the scope of the employment
relationship.
2. Employee’s tort needs a causal nexus to their regular work duties. The tort must
be a generally foreseeable consequence of regular work duties.
3. POLICY ISSUE: An employer has direct control over the employee and is
benefiting from the employees actions so employer should be responsible for
employee actions.
4. POLICY ISSUE: Employers are better able to absorb the cost and holding them
liable encourages them to hire non-negligent employees.
5. If an employee on a delivery or on a business trip for his employer commits a tort
while deviating from the employer’s business to run a personal errand, if the
deviation was minor in time and geographic area, the employee will still be
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considered to be acting within the scope of employment and the employer will be
liable. If however, the employee is on a “frolic” of his own, the employer would
not be liable.
6. Intentional tortious conduct by employees is not considered to be within the scope
of employment. In some circumstances, however, courts find intentional tortious
conduct is within the constructs of the ER-EE relationship, such as when (1) force
is authorized in the employment (police officer), (2) friction is generated by the
employment (bill collector), or (3) the employee is furthering the business of the
employer (removing customers from the premises because they are rowdy).
b. Independent Contractors
1. Generally, a principal will not be vicariously liable for tortious acts of her agent if
the latter is an independent contractor.
2. DC v Hampton - Foster parents are not agents; thus the state is not subject to
vicarious liability for incidents involving abuse by foster parents.
3. Pusey v. Bator: Inherently dangerous work has a foreseeable risk of injury. Thus,
employers are held liable for the work even of private contractors (private security
guards) if they are doing inherently dangerous work.
4. An employer may be liable for her own negligence in selecting or supervising the
independent contractor if the contractor is incompetent to do the job he was hired
to do, and harm arose out of the incompetence which the principal knew or should
have known about (e.g., hospital liable for contracting with unqualified and
incompetent physician who negligently treats hospital’s patient).
6. Negligent Infliction of Emotional Distress
1. There is no general duty not to negligently inflict emotional distress (unless
associated with a physical injury).
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2. Restatement (3d) of Torts Sect. 47 – an actor who negligently causes serious bodily
injury to a third person is subject to liability for serious emotional disturbance thereby
caused to a person who: (a) perceives the event contemporaneously and (b) is a close
family member of the person suffering the bodily injury.
BREACH
A. Where D’s conduct falls short of that level required by the applicable standard of care owed
to P, she has breached her duty. Whether the duty of care is breached in an individual case is
a question for the trier of fact.
1. Phrase it as “D breached the duty of care owed to P when he did _____ because
________ is an unreasonable activity which a reasonably prudent person would not
engage in.”
2. POLICY ISSUE: Justifications for placing legal responsibility only on those at fault
include promoting freedom of activity, maximization of innovation and economic
efficiency.
3. POLICY ISSUE: HAND FORMULA: Formula for determining breach of duty and
liability B<PL, where B = An analysis of such things as the costs associated with
avoiding the harm, alternatives and their feasibility, the inconvenience to those involved
and the extent to which society values the relevant activity, P = The likelihood of the
harm-causing occurrence taking place, and L = looks at the likely harm flowing from the
injury-causing event when it occurs.
a. If the cost of protecting an individual from an injury is higher than the probability of
the injury times the severity of the injury – then there is no breach of duty
b. Ex. Eckert v. Long Island RR – The court found that it was not negligent for P to
engage in a dangerous act in an attempt to save the life of another who was in peril,
so long as they believe that they can do so with a reasonable degree of safety – B (he
may be able to save the child w/o dying) <PL (the child will certainly die)
B. Statutes as Standards - Negligence Per Se
1. In certain situations a criminal statute (or administrative regulation or municipal
ordinance) may be used to set the standard of care in a negligence case.
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2. Proof of negligence per se requires that the: (1) statute of duty is clearly defined, (2) the
harm experienced must be of the type the statute attempts to prevent, (3) P must be w/in
the scope of the protected class, and (4) violation of statute of must be the cause of P’s
injury.
3. Acceptable excuses to negligence per se include: sudden emergencies not of the actor's
making; circumstances in which compliance would involve greater danger than violation;
the actor has some incapacity rendering the violation reasonable; or, after reasonable
efforts to comply, the party is unable to do so.
4. Adherence to standards is not a bar to a negligence action. If a reasonably prudent person
would adopt additional precautions above and beyond those created by the statute that
adherence to the statute alone could still result in negligence.
C. Customs as Standards
1. Custom typically refers to a well-defined and consistent way of performing a certain
activity, often among a particular trade or industry. P may try to assert D’s deviation from
custom as evidence of lack of due care. Conversely, D may try to avoid liability by
showing compliance with custom.
2. Customs typically serve as a base for establishing a standard of care.
3. Just because something is normally done doesn’t mean it should be done. The jury is free
to determine whether adherence to the custom was negligent by applying the reasonable
person standard applicable to the totality of the circumstances.
4. Customs do not over-ride statutes.
5. POLICY ISSUE: Allowing adherence to customs to be a complete defense would allow
companies to stay bound to outdated practices and technologies.
D. Calculus of Risk - Negligence liability is imposed where D engages in unreasonable risk
creation, situations where D creates risks that a reasonable person would not. This
determination of unreasonableness considers the risks that should have been foreseen at the
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time of D’s conduct, not through hindsight after the harm occurred. (Pipher v. Parsell – P was
injured when a passenger grabbed the steering wheel of the vehicle driven by D causing the
vehicle to crash. D was found liable because the passenger had previously grabbed the wheel
and D should have foreseen that he would do it again.) (What if a friend is drunk or has had
epileptic seizures and you let them drive?)
E. Res Ipsa Loquitur
1. Like an evidentiary rule, jury may find D liable if (1) the accident causing P’s injuries is a
type of accident which ordinarily does not occur in the absence of someone’s negligence,
(2) it is caused when by an agency or instrumentality within the exclusive control of D,
and (3) it was not caused by any voluntary action or contribution on the part of P.
a. Byrne v. Boadle, in which P was seriously injured when a barrel of flour in D’s
custody fell out of a window and onto him. The court found that the mere fact that
the accident occurred was evidence of negligence.
b. A plane crashes, killing everyone on board and completely destroying the plane. A
plane typically does not fall out of the sky without the presence of some type of
negligence. The airline may be sued under res ipsa.
c. Other examples: folding chair collapses while P is sitting on it, bolted spare tire falls
from V’s car and causes injury
2. The mere fact that P was injured by something that typically would be a result of
negligence is not enough, P must proved that D had exclusive control over the item which
caused the resulting injury.
a. Larson v. St. Francis Hotel – a guest threw chair out of window injuring P. Hotel was
not liable because they did not have exclusive control over the chairs.
b. However, if the hotel was aware that similar activities had previously occurred and
took no action against it, then they would be liable. (Connoly v. Nicollet Hotel)
CAUSATION
A. The breach of duty must be the actual and proximate cause of P’s injury
B. Cause in Fact – D’s activity must be the actual cause of P's injury.
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1. But-For Test - But for D’s conduct or activity P would not have been injured.
a. In cases where e a small number of D’s have engaged in substantially simultaneous
culpable conduct imposing similar risks on V, most courts will shift the burden of
proof by requiring D’s to prove they were not the actual cause. Ex. Summers v. Tice,
where two hunters negligently fired pellets but only one hit the plaintiff's eye. If D’s
are unable to exculpate themselves, as was the case in Summers, both D’s would be
found liable as joint tortfeasors. P still has the obligation to establish that both D’s
breached a duty of care. Only the burden of proof regarding causation is shifted.
Courts have also required that all such wrongdoers be joined as D’s.
b. Defense to but-for should be “even-if.” Ex. P says I would not have broken my leg
but for your speeding. D says you bolted into the road; therefore I would have hit you
even if I wasn’t speeding.
2. Multiple Causation
a. Substantial Factor Test - where multiple occurrences occur to bring about an injury –
and any one alone would have been sufficient to cause the injury – it is sufficient if
D’s conduct was a “substantial factor” (materially connected to) P’s injury.
1. Ex. A starts a fire on the left side of B's house and C starts a fire on the right side,
and both fires merge concurrently and destroy B's house, neither fire is the “but
for” cause of the destruction. In the absence of either fire, B's house would have
been destroyed at the same time by the remaining fire. Since both causes are
redundant, neither is a “but for” cause, a result that potentially precludes P’s
recovery against either D. In order to avoid this inequitable result, the substantial
factor test is allowed as an alternative proof of causation for redundant causes.
b. Alternative causes approach - applied if two or more persons have been negligent and
there is uncertainty over which one caused P’s injury. Under this theory, P must only
prove that harm was done by one of two D’s, burden shifts to D’s to show that their
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negligence was not the actual cause of P’s damage. If they can’t disprove their
negligence then they share the liability.
1. Ex. A and B both negligently fire shotguns in C’s direction. C is hit by one pellet
but can’t tell by which gun. A and B both must prove that the pellet was not
theirs or they will be held jointly liable.
c. Market Share Liability – Used when there are multiple D’s involved. (Ex. suppliers
of defective products caused injury to P and she cannot prove which brand of the
product she used. The court held that once P establishes culpability, D manufacturers
have burden of proving they were not the supplier. If they cannot disprove causation,
then they are liable for paying a share equal to the share of product which they had on
the shelf at the time the injury occurred.)
1. Only appropriate under specific circumstances (ex. not lead based paint
cases).
2. POLICY ISSUE: By holding all companies liable under this theory, it
adjusts behaviors by urging companies to operate more cautiously.
3. POLICY ISSUE: Similar to the “rule of two innocents,” someone must
pay and here it is easier to spread the cost out among all manufacturers.
C. Proximate Cause
1. Proximate cause is concerned with whether and to what extent D’s conduct foreseeably
and substantially caused the specific injury sustained by P.
2. Foreseeability is the measuring stick – we want to make people pay for the foreseeable
consequences of their actions
a. Two Categories of these types of questions:
1. Direct Cause - D commits breach, P suffers an injury – consequences are almost
always foreseeable, and almost always the D’s breach is the cause
2. Indirect Cause Questions – D acts, stuff happens in the middle, and P later gets
injured
3. If the accident is of a different type and kind than that which is foreseeable, then D is not
liable (lid drops in vat and no splash, but then explosion – no liability because splash was
what was expected and explosion was not foreseeable). But, D is liable for an injury
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which is foreseeable but which occurs in an unexpected manner (kid getting burned on
kerosene lamp but not in manner expected).
4. Egg-shell Skull Rule – D is liable for all injuries resulting directly from their wrongful
act whether they could or could not be foreseen by him. (Ex. Vosburg v. Putney – D loses
use of his leg due to pre-existing condition aggravated by light kick by P – P is liable.
5. Intervening Acts - the act of a third person intervening and contributing to the injury of P
caused by D’s original negligence does not excuse D’s negligence if such an act ought to
have been foreseen.
a. Dependent Intervening Acts
1. Normal responses or reactions to the situation created by D’s negligent act. They
are almost always foreseeable.
b. Independent Intervening Acts
1. They are independent actions rather than natural responses or reactions to the
situation. They may be foreseeable where D’s negligence increased the risk that
these forces would cause harm to P.
6. Superseding Acts - intervening forces that produce unforeseeable results (i.e., results that
were not within the increased risk created by defendant’s negligence) will be deemed to
be unforeseeable and superseding.
a. A superseding force breaks the causal connection between D’s initial negligent act
and the ultimate injury, and itself becomes a direct, immediate cause of the injury.
Thus, D will be relieved of liability for the consequences of his antecedent conduct.
b. Example: D negligently blocks a road, forcing P to take an alternate road. Another
driver negligently collides with P on this road, injuring him. Even though D is an
actual (but for) cause of P’s injury, the other driver’s conduct is an unforeseeable
intervening force because D’s negligence did not increase the risk of its occurrence.
Thus, the other driver is a superseding force that cuts off D’s liability for his original
negligent act.
HARM
A. There must be an actual harm caused by D’s breach of duty.
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1. Personal Injury – P will be compensated for all his damages (past, present and
prospective) including medical expenses, lost earnings and noneconomic damages, such
as pain and suffering. P is also entitled to compensation for impaired future earning
capacity. P’s noneconomic damages include damages for any emotional distress suffered
as a result of the physical injury.
2. Property Damages - The measure of damages for property damage is the reasonable cost
of repair, or, if the property has been almost or completely destroyed, its fair market
value at the time of the accident.
3. Punitive Damages - In addition to the various types of compensatory damages discussed
above, P may also be able to recover punitive damages in most jurisdictions if D’s
conduct was “wanton and willful,” reckless, or malicious.
4. Collateral Source Rule - Generally, damages are not reduced or mitigated by reason of
benefits received by P from other sources, e.g., health insurance, sick pay from employer.
5. Medical Uncertainty / Loss of Opportunity to Survive
a. Some courts will allow P to recover for wrongful death from medical malpractice
even if the patient probably would have died anyway, if the doctor's negligence
significantly reduced the patient's chance of beating the odds and surviving.
b. A reduced chance of survival is also considered actual harm. In such cases, P is not
awarded the full value of a wrongful death claim, but only those based on his
premature death (ex. lost wages).
c. If alleging a “but for” claim for future injuries, the injury must be probable (51%) not
just possible
d. Look at the Substantial Factor Test – D must have materially contributed to P's injury.
Defenses to Negligence
A. Emergencies
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1. Nearly all states permit the jury to consider in its determination of D’s reasonableness
evidence that D was acting under emergency conditions not of D's making. The fact that
D was acting in an emergency does not necessarily exculpate D from liability.
2. Emergency cannot be used as a defense if the emergency was caused by D’s own actions.
B. Contributory Negligence
1. “Conduct on the part of P which falls below the standard of conduct to which he should
conform for his own protection, and which is a legally contributing cause . . . in bringing
about P’s harm.” (Restatement §463.]
2. P does not act in a way that a reasonable person would and as a result she is injured.
a. Must prove correlation between P’s conduct and resulting injury. (Ex. Smithwick v.
Hall Upson Co. - The failure to follow a warning does not amount to contributory
negligence if a party suffers injury through an entirely different source of danger that
exists due to the negligence of D, if P did not know and could not have known of that
danger.)
3. P’s negligence is viewed completely independent of D’s negligence.
4. It is a complete defense to negligence. Burden of proof lies with D to show that they
were not negligent.
5. MD, DC, and VA all adhere to the theory of contributory negligence.
6. Some activities are so privileged that we will not assign contributory negligence (ex.
going out at night in a dangerous neighborhood, childbirth, etc…).
7. POLICY ISSUE – Contributory negligence inspires people to look out for themselves
and thus positively changes actor’s activities.
8. Last Clear Chance - If D’s negligence occurred after P’s contributory negligence, then
the court will ignore P’s contributory negligence. Most jurisdictions reject this doctrine
when replacing contributory negligence with comparative negligence.
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a. Example: Bowater negligently parked his car on the railroad tracks. The train
engineer saw him in time to stop but failed to do so. The engineer had the last clear
chance, and thus the railroad will be liable for the accident.
C. Comparative Negligence
1. Comparative negligence reduces P’s recovery by the percentage of responsibility for the
injury attributable to P.
a. Pure comparative negligence - Under pure comparative negligence P can recover
some percentage from liable D regardless of the extent of his own negligence.
1. Ex. A and B are in an auto accident. A’s car is worth $200,000, B’s car is worth
$20,000. A is 90% liable, B is 10% liable. A’s get’s $20,000 (10% of his cars
value) and B gets $18,000 (90% of his cars value). So, less liable party ends up
paying more.
b. Modified comparative negligence – P is allowed a partial recovery just as in pure
comparative negligence until P is more negligent (greater than 50% at fault) than D.
2. Primary assumption of risk still exists. (ex. an ice skater who falls on the ice does not
have a claim against the rink owner for failure to make the ice safe, however the owner
must not increase the risk such as leaving water on the ice)
D. Assumption of Risk
1. There are three basic elements to the assumption of risk. P must (1) know a particular risk
and (2) voluntarily (3) assume it.
2. Assumption of Risk is a complete defense to negligence.
3. May be expressed or implied.
4. Must be completely voluntary (ex. can’t sign universal waiver at an ER, can’t make a
train brakeman sign a waiver). Courts will not enforce if the consent is contrary to public
policy (ex. universal waiver at ski resorts for unforeseen dangers).
5. Only applies to risks which P is aware of or which P should be able to reasonably foresee.
6. Ex. – Being hit by a baseball at a baseball game = inherent risk = assumption of risk,
falling down when a carnival ride (which is meant to make you fall down) that breaks =
no greater risk then already existed = assumption of risk, hitting a metal pole while
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downhill skiing after signing a waiver = risk which should not be incurred by an
individual = no assumption of risk.
7. Fireman’s Rule – some jobs are inherently dangerous and one who opts to partake in such
occupations cannot recover for injuries attained thereof.