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Torts = area of the law that deals with claims for legal relief (almost always monetary compensation)
 Civil case, not an issue of G or NG, involves liability (what is owed to someone when you breach a duty
of care to him)
To bring a case to court, need to establish prima facie case = first appearance of sufficient evidence and facts to
proceed with a case
1. Act by D
2. Intent
3. Causation
Purpose of tort action:
1. Compensation
2. Corrective justice (fault should not go unpunished)
3. Social control or accident reduction  deterrence of negligent behavior
4. Avoidance of fraud
3 Main Theories of TORT LIABILITY:
1. Intentional Torts – fault-based concept
2. Negligence – fault-based concept
3. Strict Liability – liability without fault
Intentional Torts:
 P who brings claim against D for any intentional tort must prove 3 things:
1. Volitional act actually occurred
2. “Intent” – A person acts with the intent to produce a consequence if:
1) the person has the purpose of producing that consequence, or
2) the person knows to a substantial certainty that the consequence will ensue from the person’s
conduct (knowledge)
3. No consent given
Transferred Intent Doctrine: Intent can be transferred between five torts (battery, assault, false imprisonment,
trespass to chattel, and trespass to land) and to different victims w/in these
 Ex: If A intends to assault B, but accidentally commits battery against B or C, A is liable for battery
1) Battery: an intentional touching which is harmful or offensive
a. Intentional
b. Harmful or offensive touching
c. Causation is voluntary – accidental touching does not count
d. Non-consensual
e. (only contact is necessary, not apprehension)
i. If there is apprehension = assault + battery
 Transferred intent (applying to assault and battery) = where actual contact occurs but the defendant
intended only an assault (apprehension of contact or confinement), still a battery
2) Assault
a. Intentional
b. Creation of fear/apprehension
c. of immediate harmful or offensive contact
d. Apparent ability to commit the crime – reasonable apprehension
3) False arrest or imprisonment
a. Intent to confine or restrain P to bounded area
b. Voluntary
c. Means of Confinement or Restraint
i. D is under apparent or physical confinement
ii. Force or threat of immediate force
d. “Three ways do not a prison make” – If there is a reasonable way out, then it is not false
Policy: if person is confined and they do now know where they are, can argue that it does not matter
if they knew or not, because we cannot have people locking others up without their knowledge
Threat to personal property or family which causes someone to stay is false imprisonment (mental,
4) Intentional infliction of emotional distress (IIED)
a. Intent to cause severe mental distress to D
b. Lack of consent
c. Extreme and outrageous conduct (objective standard)
d. D suffers actual emotional harm as result of act
5) Trespass to Land
a. Direct or indirect entry by D onto another’s property
b. Intention to enter (volition to physically commit the action of entering)
c. Without consent of property owner
 NOTE: Actual damage not required, damages calculated by loss of potential use (applies to Trespass
to Chattel as well)
6) Trespass to Chattels
a. Intent to perform act of interference
b. Act that interfere w/ owner’s right of possession
i. Intermeddling
ii. Dispossession
c. No consent from owner
d. Diminution of value, proof of damage required
7) Conversion (taking someone else’s property and treating it as your own)
a. Intent to interfere w/ P’s right to possession
i. Serious enough to warrant D pay full value of the chattel
b. Lack of consent
c. No proof of damage required
General Defenses
1. Self-Defense
a. Actions must be reasonable (deadly force not allowed if safe retreat is available)
2. Defense of others
3. Consent
a. Ex: If one consents to a boxing match, cannot recover for tort of battery
b. Exceptions:
i. Infancy (minor child)
ii. Mental incapacitation
iii. Intoxication
Necessity (privilege)
a. Threatened injury must be substantially more serious than the invasion
b. Person’s life always supersedes property damage
i. Ex: Ploof v. Putnam – docking of ship on private dock during storm (death more serious
than destruction of dock)
c. Public necessity v. Private necessity
i. Public – usually means private property has been destroyed to preserve public interest,
government required to make compensation but amount in controversy
ii. Private – property destroyed to protect private interests, can result in tort action
Defense of property
a. But can never hurt someone in doing so, people > property
Defense of right to recapture chattel
a. Eliminates intent requirement if someone is not in his right mind when he commits the tort
Note: In defense (of self, others, property, right to recapture chattel), there exists liability where excessive
force is used, proportional to amount of force which is considered excessive
 Intent is proven through showing:
o Purpose to bring about result
o Knowledge that result is likely to occur
1. “Negligence” used in two ways:
a. refers to the conclusion that the D failed to exercise reasonable care
b. refers to one element of liability theory
2. Claim of negligence requires proof of:
a. Duty of care - Does it exist?
i. Actor has a duty to exercise reasonable care when the his conduct poses a risk of physical
harm to other people
ii. In most cases, existence of such can be assumed
b. Breach of Duty of Care
i. Must show D did not act to the standard of ordinary care
c. Causation
i. Cause in Fact (Factual)
ii. Proximate Cause (Legal)
d. Damage (Actual harm)
i. Kind of the first sign of negligence, because without it, you have no negligence claim
3. Two approaches to establishing DUTY:
a. Hand formula  break it down into its comparative components, DUTY EXISTS when:
i. B < L P where B = Burden of taking preventative measures against harm
P = Probability of harm
L = Severity or Gravity of the Loss
ii. TJ Hooper: Custom sometimes used as a defense, but burden still rests on D to prevent
harm if it is easy to come by and cheap to do
b. Reasonable person standard - were D’s risks acceptable?
i. Objective standard
ii. Stupidity ≠ excuse
4. Minor D
a. Child under the age of five is incapable of negligence
b. Held to standard of a reasonable person of the same age
i. Unless engaging in an adult activity
c. Other things to take into account:
i. Mental capacity
ii. Intelligence
iii. Experience
Negligence per se
1. Hierarchy:
a. Statutory violation
i. To apply, must show:
1. Protected harm (statute meant to protect against the harm caused)
2. Protected class (P is within the group of people the statute is meant to protect)
3. Prima facie negligence case
ii. Court will adopt the standard of care set about by the statute
b. Local ordinance
c. What about a private corporation’s rules/laws?  custom
i. More like evidence of what the standard of care is
2. Once shown law was violated, do not need to establish any other elements of negligence
Res Ipsa Loquitur – “The thing speaks for itself”
 A way that the P can avoid getting his case dismissed for lack of evidence
 Gets you to the court
 Burden is on the P to prove more likely than not, D is responsible
o P must show:
1. Exclusive control – D is only person who could be responsible
2. Resultant harm does not normally happen without negligence
3. Passive P, P did not cause harm directly (completely innocent, had no way of contributing to
harm caused to him, ex: surgical procedure, was knocked out)
 Special exception to exclusive control requirement: Ybarra v. Spangard (1944)
o P could not show that his injury came at the hands of one specific D
o D uses defense that P cannot show which D had exclusive control
o Court allows res ipsa to apply, holds that Ds cannot get away with negligence b/c all Ds had a duty
of care to P and actual harm resulted
 In group res ipsa case, burden of proof shifts to Ds
NOTE: Most courts allow P to plead both negligence and res ipsa loquitur
* Objection: If you prove negligence, you don’t really need circumstantial evidence to prove your case
Medical Malpractice
1. To bring claim against D, P must show:
a. Professional duty existed
i. “Professional standard of care” is based on industry custom
b. Breach of duty
i. D failed to exercise reasonable care according to custom of the profession
c. Causation
i. Substandard care was factual and legal cause of P’s injuries
d. Harm/Damages
2. Informed consent
a. P can bring a claim against doctor D if nature of contact was very different from what was
consented to
b. Can be used to raise claim for medical malpractice
c. Can also be used as defense by D medical practitioner
3. Lost Opportunity Doctrine (see below in Causation)
4. Increased Risk Theory
a. Typical used in medical malpractice field
b. Idea that P should be able to recover value of a small but significant chance of future injury
brought about by the negligence of the physician
i. Courts do not look fondly on these claims: there is no benefit in providing damages in
advance of actual harm
1. Cause in Fact (Factual)
a. But-For Test (“sine qua non” – without which not)
i. Requirement is satisfied if D’s conduct is shown more probably than not to have been
among the causes of the result the P seeks to attribute to the D
b. Substantial Factors Test
i. Applies when there is more than one D and but-for test cannot be applied
ii. Requires that each D materially contributed to P’s injury
c. Miscellaneous Approaches (Limited Purpose Substitutes)
i. Burden Shifting
1. In special cases, court can require D to prove that he did NOT cause the harm to P
2. Summer v. Tice: two hunters both negligently fire gun, victim shot by one but
by whom? If neither know, neither can prove it was the other, both held liable
a. But-for Test does not work – cannot say but for action of one, harm would
not have happened
b. Substantial Factors Test does not work, because both Ds are equally likely
to have shot him
ii. Alternative Liability
1. Where the conduct of two or more Ds is tortuous, and harm to P was caused by
only one of them but there is uncertainty as to who, burden is upon each actor to
prove that he was not the cause of harm
2. Pennfield case – Ds responsible for 100% of damages
iii. Market Share Liability
1. Each D cannot disprove causation, is held liable for its share of the market
2. DES cases – If D company had 15% market share  pays 15% of damages
3. Problem: Usually significant amount of time has passed since D interacted with P.
What if D company has since gone bankrupt?
iv. Concerted Action
1. P must show D’s conduct is more probably than not the cause of his injuries
2. DES cases – all D companies chose to turn a blind eye to lack of testing, should
all be held liable for resulting effects
3. Drag racing example:
a. Two people agree to race.
b. One driver hits a third person during the race
c. Other driver is also held fully responsible for third party’s injury, though
there was no contact between them
v. Enterprise Liability
1. Where Ds in the case make up virtually the entire industry and tortious act results
from their own lacking trade standards, court can hold Ds liable for joint control
of the risk of the tortious act
vi. Lost Opportunity Doctrine
1. Permits P to maintain action for malpractice when it denied P an opportunity to
avoid the injury, even where opportunity was ≤50%
2. Policy: weak argument from corrective justice perspective
3. How to calculate compensation for a 5% chance?
a. Most reasonable method would be to award 5% of what total damages
would be if 100% chance
vii. Increased Risk Theory
1. Typical used in medical malpractice field (see Medical Malpractice)
2. Proximate Cause (Legal)
a. Always comes second to Cause in Fact – without which, it cannot be proved
b. Ask: Are the action and the result close enough to draw a connection recognized by the law?
c. Ways to show:
i. Direct Causation – forward-looking
1. No time delay between D’s action and the harm
2. If the D is guilty of negligence, he is reasonably liable for all the consequences
whether foreseeable or not
ii. Reasonable Foreseeable Risk – In hindsight / backward-looking
1. Start at harm    Cause
a. Did anything break the chain?
i. Defense: Intervening event would become a superseding event
2. D only liable for harms which he could reasonably see as resulting from his
3. P need not prove D’s actions were the only cause of harm—there can be more
than one but-for cause
4. Show P’s injury was among the array of risks the creation or exacerbation of
which led to the conclusion that the D’s conduct was negligent
iii. Note: Different jurisdictions use different approaches, if you don’t know which, must
argue both sides and show how both tests are fulfilled
1. Ex: Palsgraf (box w/ firecrackers carried by train passenger)
a. Cardozo (majority) argues reasonable foreseeability – DO NOT OWE
i. Railroad negligent in duty to passenger with box who was a
foreseeable victim of their actions, not considered negligent to P
who was an innocent bystander
ii. There is no duty, therefore no breach, no question of causation
(factual or legal) because you can never get to that stage, and
definitely no damages
b. Andrews dissent argues direct causation – WHEN ONE ACTS
i. Consequences foreseeable to a certain extent
ii. Railroad’s actions led to P’s injuries, nothing else superseded
iv. Surprise victim case
1. P will argue for Direct Causation – D caused P’s injuries
2. D will argue for Reasonable Foreseeable Risk – D had no way of seeing that his
actions would harm P
Alternative Liability
(Applicable for Substantial Factors Test – more than one tortfeasor)
1. Joint and Several Liability
a. Typically brought on by concerted action of two or more Ds who acted with the same purpose
b. Burden of Proof shifts from P to Ds
c. Judgment is for single sum, represents total value of the P’s injury
d. P entitled to collect from either or both of the Ds, up to but not exceeding the amount of the
e. Some states have gotten rid of this
f. Public policy support:
i. Maximizes likelihood that P will get 100% compensation
ii. P will get compensation much quicker (burden put on single D, who then can recover
from others he thinks are responsible)
iii. Also, if that specific D is broke, the other Ds must pay more to make it up in his place
2. Apportioning harm
a. Damages should be apportioned by each Ds’ causation whenever there is a reasonable basis for
doing so
b. Alternative approach: 4 accidents caused by 4 separate Ds, each D liable for ¼ of damages
c. Policy: “fairness” is key
3. “Single indivisible injury rule”: Indivisible injury, though caused by successive incidents. P can assert
claim against all the wrongdoers w/o burden of proof of showing extent of damage or injury caused by
each D
a. Burden shifted to each individual D
4. Harm caused by combination of an actor’s negligent conduct and other cause (not actor’s fault)
a. If actor’s action alone is sufficient to bring about the harm, can be held liable for whole of the
5. Eggshell-Skull Rule:
a. Tortfeasor takes his victim as he finds him in his current state
b. No discount to average the damage caused by tortfeasor and existing damage but…
c. Corollary: Damages of the eggshell skull victim must be reduced to reflect the likelihood that he
would have been injured anyway, from a non-liable cause, even if the D had not injured him.
Duty in Negligence Cases
1. Nonfeasance = clear inaction
a. Typically, cannot be held accountable for one’s inaction (Bad Samaritan rule holds)
b. Manaster: “Not doing is no trespass”
c. Public Policy Justifications:
i. Open floodgates - could sue EVERYONE who didn’t help
1. Administrative problem – too many cases to try, Ds to find
2. Moral problem – how to decide who is responsible or not?
ii. Danger of creating laws which impose requirement of action on people, purpose of laws
is to deter negative actions, not to encourage positive actions
iii. Requires people to make a judgment call – may put rescuer in danger as well
iv. Takes away personal autonomy to choose one’s actions
1. Free personal choice will result in the best results – allow those who know how to
help to provide it (doctor, rescue personnel, etc)
2. Most states have statutes (Fireman’s Rule) which say if one does help, he will be
protected from liability unless his conduct constitutes gross negligence (breach of
professional duty)
a. Purpose = to encourage those who are qualified to provide aid to do so
without fear of liability
d. Exceptions:
i. Volunteer exception, aka “Good Samaritan Rule,” aka “undertaking” exception
1. One who volunteers to assist another undertakes a duty not to make the
situation worse (duty of reasonable care)
a. Has duty to continue with help, if volunteer stops  nonfeasance
b. Different from the volunteer does step in, finishes his help, but did so
negligently  misfeasance
ii. Special relationship with victim exception
1. Special relationships between D and P that may generate affirmative duty of care
2. NOTE: Don’t use this exception without explaining why it exists!
3. Ex: Tarasoff case, psychologist is held responsible for not reporting danger
a. She was in a better position to warn, had ability to get the information
necessary to protect
iii. Prior conduct exception
1. Actor who does an act, and subsequently realizes or should realize that it has
created an unreasonable risk of causing physical harm to another, is under a duty
to exercise reasonable care to prevent the risk from taking effect
a. Ex: Driver in car accident he caused has duty to help injured party in other
iv. Perpetrator exception
1. Situation in which the P is injured by the affirmative conduct of a third person and
set forth certain relationships between D and the third person that may generate an
affirmative duty of care
a. Ex: Prison allows felon to escape, has a duty of care to people who live
around the prison to apprehend suspect and warn them of his presence
2. Misfeasance = clearly affirmative misconduct
3. Special Cases:
a. Third Party Torts and Crimes (Perpetrator exception)
i. Tarasoff v. Regents of U.C.
1. Basically a nonfeasance problem
a. Cases tend to focus on applying an exception to the nonfeasance rule
b. Principal factor that triggers liability is superior ability or knowledge of D
to control or influence perpetrator’s conduct and relative inability of
victim to protect himself
Negligent Infliction of Mental and Emotional Harm
1. History of Tests used to see if recovery is allowed:
a. Impact Limitation Rule
i. No recovery for the consequences of fright and shock negligently inflicted absent actual
physical contact, need actual physical contact
1. Physical injuries caused by emotional distress do not apply
ii. Reasons Court kept the rule for so long:
1. Stare decisis justification – rule has been used for so long, need a good reason to
change it
2. Common law, status quo  fear of unforeseen consequences if rule is changed
iii. Abandoned in favor of…
b. Zone of Danger Rule
i. No reason to require actual physical contact as proof of damage
ii. Requires P to be in physical proximity of D’s negligent action, P must reasonably fear
harm as a result of D’s actions in order to make case for damages
iii. Abandoned in favor of…
c. Dillon Factors Test / Bystander Recovery Rule
i. All three factors must be fulfilled:
1. P was located near scene of the accident
2. The shock resulted from a direct emotional impact upon P from the sensory and
contemporaneous observance of the accident
a. Cannot learn of the accident from someone else or from watching the
3. P and victim were closely related
ii. Evaluation of these will indicate the degree of foreseeability
iii. Problems: (3) case of cohabitating partners?
d. Exceptions to Dillon Factors
i. Where P is negligently told a relative has died
1. Ex: Telegraph/Telegram company incorrectly delivering bad news
ii. Where P learns about the mishandling of a deceased’s body
1. Ex: Funeral home
e. In Pennsylvania: Impact rule still survives today if P fails to make out elements of Dillon Test or
Zone of Danger Test
2. Requirement of a physical manifestation of the emotional harm done
a. Some courts (Texas) have abandoned this requirement altogether
3. If impact actually occurs, case is made stronger
a. Compensation should be limited to abnormally caused emotional distress
Pure Economic Loss w/o Physical Harm or Damage
1. Often arises when one has a dependant economic relationship on another
2. Sometimes recoverable, but typically severely limited, in negligent misrepresentation
a. Courts do no like awarding b/c economic relationships are so complex and are intertwined so
intimately that disruption of one may have far-reaching consequences
3. Principle reason for denying recovery = reluctance to allow a tort remedy when P has option of
recovering contractual remedy
Mental and Emotional Harm (not super important)
1. 2 types:
a. When D caused compensable bodily injury on P, P’s emotional distress can also be compensated
by damages that are “parasitic” to damages for the physical injury
i. Parasitic damages – Do not involve creation of new or different cause of action in
complaint, are unnecessary for making out original claim
b. When entire claim hinges on P’s emotional distress requiring compensation
2. Fear of Illness
a. Typical situations:
i. Exposure to toxic product w/ proven statistical risk that some exposed will become ill
ii. Environmental exposure to disease-causing substances
iii. (fear of AIDS, exposure to diseases which will ultimately result in death) (suggested as
3rd category)
b. How much should the D be held liable? How much in damages should the P be compensated?
i. Courts have ruled that P can recover for the mental anguish caused by worrying about
this, but P cannot be compensated for the risk itself
1. P fails to show it is more probable than not that physical harm has resulted
(because it has not happened, and may not happen at all)
a. Court will not compensate now for a possibility of later health problems
2. If P later gets sick with a physical injury resulting from the D’s negligent conduct,
then can file another claim because there is a negligence per se claim, statutory
Affirmative Defenses to Negligence
General Usage: means any matter that, if pleaded and proved by D, will defeat or reduce the liability that P has
otherwise established  burden rests on D
1. Vicarious Liability
a. Arises out of Doctrine of “Respondeat Superior” – liability of an employer (“master”) for the tort
of an employee (“servant”) who was acting in the scope of the employment
b. Allows P to recover from a party for the torts of another
ii. By definition, employer A is not at fault; liability is imposed solely on basis that B is at
fault and the relationship between A and B justifies holding A responsible
c. Applies to master-servant, employer-employee, joint enterprise (partnership), parent-child
i. Motive test – if tortious action occurred in servant’s actions were done with the purpose
of serving the master
ii. Does not apply in instances of intentional torts
iii. Does not apply when employee acts outside scope of his employment
1. Frolic v. detour
a. Detour = short personal errand, falls within the scope of employment
b. Frolic, e.g. seeing a movie in the middle of your workday, not within the
scope of employment
iv. Foreseeable conduct is actionable even if not within the scope of employment
d. General Rule: One who employs an independent contractor (v. an employee) is not subject to
vicarious liability for the contractor’s torts
i. Exception – Inherently Dangerous Work: Employer may delegate the work to an
independent contractor, but not the duty – employer is not insulated from liability if the
independent contractor’s negligence results in a breach of the duty
ii. Ex: Greif Brothers – D hired contractors to act as security guards work which is known to
pose a particular risk of harm to others unless special precautions are taken
1. Ds can be held liable b/c of nature of the inherently dangerous nature of the work
e. Exception – Fellow Servant Rule: Employee cannot sue fellow employee if injured while
fulfilling scope of his job description
i. Led to creation of workers compensation statutes
2. Contributory Negligence – no longer used in pure form
a. Old Rule: If D could prove a negligence claim against P (i.e. D could prove that P was also
guilty of negligent conduct that was a cause in fact and a legal cause of the resulting injuries) D
would not be liable at all
i. Holds true even if D’s negligence is far worse than P’s conduct
ii. Inherently unfair due to application of “double standard” to breach issue – w/o P’s
actions, D would clearly be held liable for his negligent actions
iii. Development of exceptions to ensure justice:
1. “Last Clear Chance” Doctrine – negligent P should still recover if he can show D
had an later opportunity after P’s negligence to avoid the accident (nullification of
P’s contributory negligence)
a. Problem: still an all or nothing approach to recovery
iv. Led to development of loss sharing approaches to negligence
1. 1960s, most states moved from contributory negligence to a form of comparative
3. Comparative Negligence
a. Began in 1973 with Hoffman v. Jones where Supreme Court of Florida allowed deceased P’s
wife to recover though her husband had contributed to his own death
b. Two main reasons for rejection of contributory negligence:
i. Was originally adopted to protect essential growth of industries, in modern times,
economic and social customs tend towards protection of individual, not industry 
reason is no longer valid
ii. Best reason: Comparative negligence is a more equitable system of determining liability
and a more socially desirable method of loss distribution
c. In practice  Hybrid System which takes into account P’s contributory negligence
i. P’s recovery amount may only be a proportion of the entire damages P sustained as the
D’s negligence bears to the combined negligence of both P and D
1. Ex: Where P’s negligence is equal to that of D’s, amount awarded to P should be
reduced by half from what it otherwise would have been if D alone responsible
ii. Left up to jury to decide total value of P’s loss
d. Three types of comparative-fault systems:
i. “Pure comparative negligence” system – where culpable conduct attributable to
claimant or decedent, including contributory negligence or assumption of risk, shall not
bar recovery, but the amount of damages otherwise recoverable shall be diminished
in the proportion which the culpable conduct attributable to the claimant or
decedent bears to the culpable conduct which caused the damages
1. Most commonly cited method by state legislatures
ii. “Modified 51%” system – where any damages allowed shall be diminished in the
proportion to the amount of negligence attributed to the person recovery. The negligence
of the P shall be measured separately against the negligence of each person found to be
causally negligent
1. P gets nothing if his negligence is >50%
iii. “Modified 50%” system – liability shall be determined by comparing the fault
chargeable to a claiming party with the fault chargeable to the party or parties from
whom the claiming party seeks to recover damages
1. If the fault chargeable to P claiming damages is of less degree than the fault
chargeable to the D or Ds, then the P is entitled to recover the amount of his
damages after they have been diminished in proportion to his own degree of fault
2. If the fault chargeable to P is equal or greater than any fault chargeable to the D or
Ds, then the claiming party is not entitled to recover such damages
iv. NOTE: Therefore, in some systems (i and ii), P can be cut off from recovery for fault
assessed at less than 50% in multiparty cases
e. Characteristics of Comparative Negligence
i. Assumes P’s pre-accident conduct is a cause of his accident so he should also be held
responsible for the damages he suffered (v. failure to avoid consequences)
1. Ex: intoxication while driving leads to P’s collision with another car
ii. Joint and Several Liability (single D held liable for total damages attributable to all Ds)
1. Still exists in 10 states
2. Some have abolished it completely – 13 states
a. Each D liable only for his own % share
3. Rest of the states have partially abolished
a. Some reapportion insolvent D’s share among solvent Ds and P
proportionate to their respective % of fault.
b. Some have threshold % limitation under which that D relieved of liability
c. Some hold Ds jointly and severally liable for monetary damages, but not
for non-monetary damages (pain and suffering)
iii. Benefits:
1. Maximizes likelihood that P will get full compensation as soon as possible
2. Does not prevent D1 from taking legal action for reimbursement from other Ds
(risk of possible insolvency placed on D instead of P who deserves compensation)
iv. Disadvantages:
1. Places strain on courts  Too many cases, motions going on at once
f. Combining Comparative Negligence with Intentional Torts
i. Raises two issues:
1. Multi-party lawsuit where one D of many is liable for intentional tort, how to
assign % responsibility?
2. Should P’s negligence affect P’s own recovery against the intentional tortfeasor?
a. Also affects allocation of responsibility for single, indivisible injury for
other tortfeasors
ii. In intentional tort, tortfeasor is always held jointly and severally liable for his share of the
comparative responsibility assigned to him, in addition to the share of comparative
responsibility assigned to the victim
iii. No clear solution  Courts must use their best judgment to apportion % cause in fact of
harm and % fault
g. Combining P’s Negligence with D’s Strict Liability
i. Comparative negligence is not a defense to strict liability
1. The two can be blended together in apportioning fault
2. Since D’s negligence is irrelevant to strict liability, so should the P’s negligence
be irrelevant
ii. Court holds that there is no substantial or significant impairment of safety incentives of D
if they adopt comparative principles
1. However, there is controversy over how to allocate responsibility in a fair way
iii. Most states that have comparative negligence schemes have extended comparative
principles to strict products liability
4. Failure to Avoid Consequences
a. P’s pre-accident conduct did not cause the accident but that was a cause of some (perhaps even
all) of the injuries or damages
i. Ex: P not wearing a seatbelt when another driver ran a red light and hit him
5. Failure to Mitigate Damages
a. Post-accident conduct by the victim causes some of the injuries or damages
i. Ex: P sustains broken leg in accident, attempts to walk on it thereby making it worse
b. Doctrine of Mitigation of Damages: precludes recovery of any damages that P could have
avoided by taking prudent measures after accident to prevent or reduce severity of his injuries
i. aka “Doctrine of Avoidable Consequences” – similar to duty to mitigate in K
c. Typically communicated to the jury through jury instructions on awarding of damages
6. Assumption of Risk
a. Defense:
1. Primary assumption of risk => no duty of care, D explicitly relieved of duty
2. Secondary assumption of risk => contributory negligence argument
b. Label for D’s argument that he did not owe duty of care to P
i. Rebuttal to P’s assertion that D owed a duty of care
c. Three distinctly different doctrines:
i. Express – associated w/ contractual limitations on liability
1. P cannot sue if he signed a contract waiving his rights to sue D
iv. Implied primary – no-duty doctrine applies to D
1. Where P expressly or impliedly relieves D of duty to act with care
2. D can rebut prima facie case because P assumed the risk
3. Ex: Getting hit with a baseball while sitting in the outfield seats at a game
ii. Implied secondary – only affirmative defense based on P’s conduct
1. Where P voluntarily chooses to participate in an activity which he knows is
inherently dangerous or risky
2. D had a duty and was negligent in some regard
3. Ex: Sitting behind homeplate which is protected by a screen but has a hole in it
4. No longer a complete defense  Many courts will now absorb into comparative
ii. Commonly applied to participation in sports and recreational activities
1. Inherent risk = those permitted by rules, customs and mores of the activity
Land Occupier Duty
1. Owner is typically considered occupier
a. If land is leased to another, lessee = occupier
2. Occupier owes duty of reasonable care
a. Duty to exercise due care arises out of possession alone
b. Will be liable if negligence, cause in fact, legal cause, and damages are established
i. “Natural conditions” are typically excluded from the occupier’s responsibilities
1. Examples: Highway injuries, tree falling injuries, urban land occupiers
ii. NOW: D’s can be held liable for injury incurred on their land
1. Someone should be held responsible – cannot sue God so hold landowner liable
2. Control factor – D have the ability to control what happens on your property
which no one else has
a. Court reads into that a responsibility to do something (affirmative duty)
3. Allows P to go court to allow a jury to decide, could still end up with D
prevailing, but at least gives P a chance at recovery
3. Categories of visitors to occupier’s land:
*** Jury decides which category P belongs in
a. Trespasser – one who enters w/o any right to do so
i. Occupier only owes duty to refrain from injuring due to willful or wanton conduct
ii. Exceptions:
1. Attractive nuisance doctrine protects injured children
2. When occupier knows a significant number of trespassers habitually frequent a
particular and limited part of the land, or when a trespassers’ presence on the land
has actually been discovered by the occupier, occupier has duty to exercise
reasonable care
b. Licensee – one whose only privilege derives from occupier’s consent
i. Occupier liability limited to injuries caused by:
1. Willful, wanton, or reckless conduct (same as for trespasser)
2. AND Injury from intentionally exposing to danger
ii. Fireman’s rule - classifies rescuers as licensees and limits protection against injuries
accordingly on theory that they are present by virtue of a privilege (are paid to do a job)
rather than an invitation
c. Invitee – business visitor, comes on some errand with potential economic benefit to occupier
i. A public invitee is a person who is invited to enter or remain on land as a member of the
public for a purpose for which the land is held open to the public
ii. A business visitor is a person who is invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of the land.
iii. Occupier’s owes a duty of reasonable care w/ respect to activities and with respect to
conditions about which the occupier “should have known”
4. Liability to Children:
a. Attractive Nuisance Doctrine – If a child is lured onto D’s property by something that looks
like fun, and D has reason to know that something they have is attractive to children, then D has
a duty of care to the child who is considered an invitee
5. Duty to Third Parties
a. Determined on case-by-case basis
b. Court may determine that an actor has no duty or only duty is ordinary duty of reasonable care,
or leave it up to the jury to decide
c. 3 justifications for making decisions on D’s standard of care as matter of fact for jury to decide:
i. There are an infinite variety of circumstances which may surround an event that causes
harm to someone, tailor to the specific case
ii. Allows successive juries to reassess what precautions are reasonable as social, economic
and technological conditions change over time
iii. Jury brings a winder array of practical experience and knowledge to that the decision than
does a single judge
Common Law Strict Liability
P need not prove negligence or intent
1. Animals
a. Strict liability imposed for injuries caused by wild animals
b. Liability has been extended to domestic animals in limited situation where owner has reason to
know of that particular animal’s dangerous propensities
i. Otherwise, each animal owner is liable only if negligence or intent shown – “every dog is
entitled to one bite”
2. Abnormally Dangerous Activities
a. Doctrine of “Rylands and Fletcher” (1868) – D who has brought something on his own
property which was not naturally there and is harmless to others so long as it is confined to his
own property, but which he knows will be mischievous if it gets on his neighbor’s, should be
obliged to make good the damage which ensues if he does not succeed in confining it to his own
i. Not adopted by all courts
ii. Distinguishes between D’s use of land:
1. If D’s use of land is natural, foreseeable and done in an understandable manner, D
will not be held liable
2. If D’s use of land is unexpected or “not natural”, cannot say that neighbors should
have a reasonable idea of repercussions which may arise, D will be held liable
b. Definition of “abnormally dangerous” – If it creates a foreseeable and highly significant risk of
physical harm even when reasonable care is exercised, not a matter of common usage
c. Factors to consider in determination of an abnormally dangerous activity:
i. Whether activity involves a high degree of risk of some harm to the person, land or
chattels of others;
ii. Whether gravity of harm which may result from it is likely to be great;
iii. Whether risk cannot be eliminated by exercise of reasonable care;
iv. Whether activity is not a matter of common usage;
v. Whether activity is inappropriate to the place where it is carried on; and
vi. The value of the activity to the community
d. Exception: One good reason to accept abnormally dangerous activities is if they serve a greater
good or cannot be avoided to fulfill their purpose
Products Liability
3 Theories:
1. Negligence
a. Causation:
i. Duty & Breach of Duty: P must prove D failed to use reasonable care in manufacturing,
designing, or marketing of their product, AND
ii. Causation: Failure was a cause-in-fact and legal cause of P’s injuries
b. Privity Rule = manufacturer can only be held liable to people who were in privity of contract w/
the manufacturer
i. Formerly, limited duty rule privity rule protected manufacturers
1. Manufacturer only held liable to direct buyer of the product
ii. Exception = imminently or inherently dangerous products (e.g. poison)
iii. Now, never required in a negligence case involving a defective product
1. Opens the floodgates to potential negligence lawsuits
2. Limitations: Does not mean that liability extends to anyone injured by negligently
manufactured products, only extends to reasonably foreseeable Ps
a. Purchasers, family members, and household guests can recover for breach
of warranty
b. Any foreseeable P who suffers personal injury or property damage can
c. Any foreseeable P can recover, irrespective of the type of injury
c. Justifications:
i. To insure that costs of injuries resulting from defective products are borne by
manufacturers of products, rather than the powerless injured person
2. Warranty
a. Derives heavily from contract law
3. Strict Tort Liability
a. Imposed when manufacturer:
i. Has knowledge of product’s possible defective condition, or
ii. Has not inspected the product for defects which may cause injury,
b. But still allows the product on the market
c. Justifications for strict tort liability:
i. Compensation / loss spreading
1. Humane to shift losses to all consumers of the product
2. Force manufacturers to bear the cost of injuries resulting from the defective
products that they put on the market, rather than by the injured persons who are
powerless to protect themselves
ii. Cost internalization = more efficient allocation of resources, prices of products will then
more nearly include all of the true costs, including accident costs
iii. Deterrence – provides manufacturers with incentive to market safer products
1. Strict liability induces manufacturers to do more if the cost of the added safety
measures is less than the potential cost of liability (Hand formula)
iv. Proof problems – manufacturer of defective product is negligent, but it may be very
difficult for P to establish such, this relieves P of burden of proving specific acts of
v. Protection of consumer expectations – consumers should be protected from unknown
dangers in products
d. P’s Contributory Negligence = Defense or Mitigating factor for damages
i. Restatement (2nd) of Torts § 402A, Comment n – negligence that was merely a failure
to discover or guard against possibility of product defect is not a defense against strict
tort liability
1. Consumer should not be denied recovery altogether merely because he or she
failed to inspect the product for defects
2. Most courts now count all forms of P’s negligence, including P’s failure to
discover or guard against a product defect
e. Protection of Bystanders – Entitled to greater protection than the consumer or user where injury
to bystanders from the defect is reasonably foreseeable
i. After Elmore v. American Motors Corp. (1969) where P was injured in accident caused
by defective part in another party’s car (manufactured by D), bystanders allowed to
recover under strict tort liability
ii. Justifications:
1. Consumers and users at least have opportunity to inspect for defects beforehand
2. Bystander has no such opportunity
3. Bystander is in greater need of protection from defective products which are
iii. Requirements:
1. P must show a strong and fairly direct (close in time and place) causal connection
between the harm caused by the defective product and his injury
f. Sale of Goods v. Sale of Services
i. Restatement of Torts (2nd) §402A deals specifically and only w/ the sale of a product.
Strict liability does not extend to sale of a personal service
1. Personal services do not involve mass production
a. There is difficulty, if not inability, in obtaining proof of negligence
2. Consumer is usually aware or can determine what work was performed and who
performed it for a service
ii. Services of experts are sought b/c of their special skills  duty to exercise the ordinary
skill and competence of members of their profession
1. Failure to discharge that duty will subject them to liability for negligence
2. However, can only expect reasonable care and competence
3. P purchases service, not insurance
iii. Those who hire persons to build their products are not justified in expecting infallibility,
but can expect only reasonable care and competence.
1. They purchase a product, not insurance.
iv. Application of Strict Liability to a hybrid sale of service involving goods
1. When contract between P and D is commercial in character, courts are willing to
extend liability w/o fault to hybrid sale-service transaction, provided a defective
product is supplied to P or used by D in course of performing the service
2. If only service is considered defective, P cannot recover from D on strict liability
v. Ex: Pharmacist dispenses drugs, not responsible for defective drugs themselves (product)
1. If drug is defective, P can sue drug manufacturer
2. Pharmacist is only acting as an agent to doctor, not actually selling a good
4. Categories of Defective Products (3):
Look at problem area as opposed to one specific doctrine of liability
a. Manufacturing Defect or Flaw = Product does not conform to manufacturer’s specs or intentions
i. Ex: Soda w/ piece of glass in it
ii. Restatement (2nd) of Law of Torts § 402A(1) (1965): One who sells any product in a
defective condition unreasonably dangerous to the consumer or to his property is subject
to liability for physical harm thereby caused to the ultimate user or consumer or his
1. Comment g: “defective condition” = rule stated only applies where product is, at
the time it leaves seller’s hands, in a condition not contemplated by ultimate
consumer, which will be unreasonably dangerous to him
2. Comment i: “unreasonably dangerous” = article sold must be dangerous to an
extent beyond that which would be contemplated by ordinary consumer who buys
it, with the ordinary knowledge common to the community as to its characteristics
a.  consumer expectation test – if dangers of product are well known w/in
realm of consumers, then it is not unreasonably dangerous or defective
3. Test for unreasonable danger: Product is defective and unreasonably dangerous
when a reasonable seller would not sell the product if he knew of the risk
involved or if the risks are greater than a reasonable buyer would expect
a. Allows jury to characterize the product
iii. Basic difference between negligence and strict liability for design defect:
1. Strict liability talks about condition (dangerousness) of an article’s design
 Assumes manufacturer had knowledge of the danger
2. Negligence talks about the reasonableness of manufacturer’s actions in
designing and selling article as he did
 Assumes that manufacture did not have knowledge of the danger
iv. If danger is known but to change design would be cost prohibitive so no one would buy
it w/ the safety features added, the flaw is not considered a dangerous defect then
b. Design Defect = Product that is like every other product in the line, but the entire line has a
feature that is unreasonably dangerous
i. 2 tests for design defects:
1. Consumer Expectation Analysis – manufacturer is strictly liable for any
condition not contemplated by the ultimate consumer that will be unreasonably
dangerous to the consumer
a. Draws on thinking of warranty law
b. Considers how foreseeable user will use the product and what that
consumer wants
2. Risk Utility Test – manufacturer bears burden of proving the product’s utility is
not outweighed by its risks in light of various other factors
a. Similar to negligence law
b. Looks at whether manufacturer would still be willing to sell the product
NOW, knowing of all its faults and the risks they pose
i. Difference is here manufacturer evaluates from hindsight
ii. California gives P “two bites of the apple” – allows both Consumer Expectation and
Risk-Utility tests
iii. Factors jury should consider in deciding on the “unreasonableness” of the design risk:
1. Usefulness of product
2. Likelihood and severity of danger posed by the design
3. Feasibility of an alternative design
4. Financial cost of improved design
5. Ability to reduce product’s danger w/o impairing its usefulness or making it too
6. Feasibility of spreading the loss by increasing product’s price
c. Inadequate Warning / Warning Defect = Product that is made unreasonably dangerous because
of the warning or instructions for use, or lack thereof
i. Deprives potential customer of a full understanding of risks along with the rewards
(similar to informed consent)
ii. Comment k of § 402A of Restatement (2nd) of Torts (1965): Public policy should
immunize drug manufacturers from liability for side effects of prescription drugs. Strict
liability should not apply to certain unavoidably unsafe products
1. Definition of unavoidably unsafe products – some products which, in present
state of human knowledge, are quite incapable of being made safer for their
intended and ordinary use
a. Such a product, properly prepared, and accompanied by proper directions
and warning, is not defective, nor is it unreasonably dangerous
2. Manufacturer who knows or should know of the danger or side effects of a
product is not relieved of its duty to warn
iii. Comment j of § 402A: Directions or warning – in order to prevent the product from
being unreasonably dangerous, the seller may be required to give directions or warning,
on the container, as to its use. Where the product contains an ingredient whose danger is
not generally known, or if known is one which the consumer would reasonably not
expect to find in the product, the seller is required to give warning against it, if he has
knowledge, or by the application of reasonable, developed human skill and foresight,
should have knowledge of the presence of the ingredient and the danger.
d. State of the art
i. Often used as a defense, but unclear whether the defense precludes a finding of defect
ii. 2 definitions:
1. Given state of technology when drug was sold, D had no way of knowing about
its risks. Term refers to D’s knowledge  application of foresight test
2. Even if a product’s risks were known when it was sold, state of technology at the
time was such that nothing could be done to eliminate or reduce the risks
5. Causation
a. P must prove that defect existed when D sold the product and that the defect was the factual
cause (but-for cause) of P’s injuries
b. 3 problems Ps have in proving factual cause in products cases:
i. Warning labels – Ps have difficulty proving D’s failure to warn was a cause-in-fact of
their injuries
ii. Automobile defects – P’s claim vehicle is not “crashworthy” but have a difficult time in
separating injuries which would have occurred anyway as a result of the crash from
aggravated injuries which are caused by the vehicle’s defects
iii. Prescription Drugs – Difficulty in proving which manufacturer of a drug produced the
particular lot that injured P
6. Defenses to Products Liability:
a. Basic defectiveness of product
i. D says product is not defective relative to its intended use
b. But-For Test (Factual Cause) not met
i. Misuse of a product can be helpful to D’s in defeating claim
ii. P cannot say but-for D’s faulty blade (factual cause), his fingers would not have been cut
(if he stuck them in there anyway)
c. Assumption of Risk
i. P knew of dangers, acted with knowledge and got hurt
ii. D can argue he adequately warned consumer
d. Contributory Comparative Negligence
i. D can argue P was negligent in actions in using product, contributed to harm
ii. Reduces P’s total recovery
e. Failure to Avoid Consequences
i. If P modified product after it left D, P cannot hold D liable for any harm resulting from
the change