Torts Fall 2007, Professor David Fischer

Intentional Interference with Person or Property

A. INTENT
Definition of Intent
o to establish intent one must either act with the intent/purpose to bring about the
consequence (must act intending the consequence) or with a substantial certainty
that their action will result in the particular outcome
establishing intent for the mentally disabled: the generally accepted view is that as long as
it can be shown that a mentally disabled person was capable of forming intent they can be
held responsible for their intentional torts (example: McGuire v. Almy; where insane woman
threatened, struck and injured her home health aid)
transferred intent (applies to battery and assault cases): when you act intending to inflict
a harm on someone and you fail, in that you instead inflict harm on a third person, your intent
to cause the harm on your target is transferred and it fulfills the intent requirement for the
harm you did cause (example: Talmage v. Smith; man throws stick at a group of children on
his property and hit a third boy not in the group in the eye; his intent to harm one of the boys
in the group transferred to his act on the third boy)
o the idea behind this principle is that even if someone misses their mark, they are just
as culpable for consequences they intended
o The intent can also transfer from one intentional tort to another: if you act
intending to commit an assault but instead commit a battery, your intent to commit
the assault transfers and becomes your intent to commit the battery
o Exception to this rule: if the harmful act you performed was justifiable, as in cases
of self defense, then you cannot prove intent. Therefore there is no intent to transfer
should you harm an unintended third person
B. BATTERY
Definition of battery
o Restatement 13: battery occurs when someone acts intending to cause a harmful or
offensive contact, or the imminent apprehension of such a contact and the harm
either directly or indirectly results
How do you establish Battery?
o Conduct
o Intent
Intent is established by either showing the intent/purpose to bring about a
harmful contact or a substantial certainty on the part of the actor that his
conduct will result in a harmful contact
Transferred intent (see above in intent section) can be applied in battery
cases to fulfill the intent requirement
o Harmful or offensive contact
Knowing when a contact is harmful: a harmful contact is one which
results in bodily harm (any physical impairment, pain or illness)
Establishing contact when it is not made directly with the victims
body: the contact requirement is extended to include objects that are
considered to be intimately associated with the victims body; some things
are so intimately connected with ones body to be considered part of ones
person; the idea is that an offensive contact is a violation of ones personal

dignity, so unauthorized contact with anything closely connected with

ones person can violate this sense of dignity (be offensive) (example:
Fischer v. Carrousel Motor Hotel, Inc.; plaintiff had a plate snatched from
him and insulting comments thrown at him by a member of the wait staff
and the court allowed him to recover for battery based on this idea).
Knowing when a contact is offensive: there is a reasonable person
standard; if a reasonable person would find the contact offensive (rude,
insolent, or offensive) then it qualifies; 19 of the restatement says
something is offensive if it offends the personal dignity of a reasonable
person
! Reasonable person standard is an objective way to look at offensive
contact; if you used a subjective test and relied on each persons
individual perception of what constitutes offensive contact, there
would be no way to know if ones actions would be deemed
offensive before seeing the other partys reaction
Crowded world idea: a certain amount of contact with other people is
excepted and unavoidable; it is assumed that one gives their consent to all
ordinary contact that is customary and reasonably necessary to the
common intercourse of life

C. ASSAULT
Definition of Assault
o Restatement 21: assault occurs when someone acts intending to cause a harmful or
offensive contact, or the imminent apprehension of such a contact and as a result puts
the other person in that imminent apprehension
! The difference between an assault and battery lies in the imminent
apprehension; whereas a contact must exist to constitute a battery, an assault
occurs when the victim is put in imminent apprehension that the contact will
occur
Because of the similarities and differences it can be said that all battery
includes assault but an assault does not include a battery
How do you establish assault?
o Conduct
o Intent
! Intent is established by either showing the intent/purpose to bring about
apprehension of a imminent harmful or offensive contact or a substantial
certainty on the part of the actor that his conduct will result in imminent
apprehension
! Transferred intent (see above in intent section) can be applied in assault cases to
fulfill the intent requirement
o Imminent Apprehension that a harmful or offensive contact will occur
! For there to be apprehension, the victim must believe that the actors conduct will
result in imminent contact unless some intervening force were to prevent the
contact
Again there is a reasonable person standard, would the actors conduct
place a reasonable person in apprehension of an imminent contact?
! Mere words alone cannot establish the apprehension necessary for
assault: the actors conduct must be what places the victim in apprehension of
imminent not future contact; the victim must believe that the actor is in the
process of committing the contact, or can commit it very quickly thereafter;
words can modify the physical warning but words alone generally alert the victim

to some possibility of a future, not imminent contact; words must come along
with some action in order to lead to the apprehension
! Knowing when a contact is harmful: a harmful contact is one which results in
bodily harm (any physical impairment, pain or illness)
! Knowing when a contact is offensive: there is a reasonable person standard; if
a reasonable person would find the contact offensive (rude, insolent, or
offensive) then it qualifies; 19 of the restatement says something is offensive if
it offends the personal dignity of a reasonable person
Reasonable person standard is an objective way to look at offensive
contact; if you used a subjective test and relied on each persons
individual perception of what constitutes offensive contact, there would
be not way to know if ones actions would be deemed offensive before
seeing the other partys reaction
Difference between criminal assault and tort assault: for criminal assault no apprehension is
needed; the actor need only make an attempt to batter the victim (example: you throw something
at someone with the intent to hit them and you miss, but they do not see you throw the object,
therefore they did not apprehend the harmful contact you intended; in tort law this would not be
an assault, but it would be a criminal assault because your act was an attempted battery)

Privileges
A. CONSENT
Definition of consent
o Willingness in fact for conduct to occur
! In consent cases, the person is generally consenting to the contact and is
assuming the risk of any potential side effects
o Consent can be treated as an element of the tort in that the plaintiff can argue lack of
consent in their complaint; lack of consent can be part of a prima facie case for battery
o Consent can also be treated as an affirmative defense and can be raised and argued by the
defendant if they claim that they had the plaintiffs consent
How can you tell if someone has consented?
o To show consent does not always require some spoken consent; words, gestures, or
conduct can all demonstrate consent in a manner that will hold up in court (example:
OBrien v. Cunnard; woman consented to vaccination on a cruise ship even though she
did not explicitly state verbally that she consented; the court assumed her consent based
on evidence of her behavior and mannerisms)
o For minor children, the consent of a parent is necessary except in cases of medical
emergencies
Informed Consent
o in cases of medical professionals obtaining consent from patients for procedures
informed consent says that the doctor must notify the patient of the risks of the proposed
procedure. If the doctor is aware of the risks, fails to notify the patient, gains consent, and
then the risk becomes a reality, the doctor may be liable for damages.
! The doctor is responsible for informing the patient of definite risks to avoid
liability; the liability in these cases is for battery
If the doctor fails to inform of a possible side effect of the procedure then
he may be liable for negligence, not battery
o If neither party knows of the existence of a particular risk
! if this is the case and the patient has consented to the procedure, then the doctor
cannot be liable for harm that result related to this risk; in consenting, the patient
bears the risk of any bad results which neither they nor the doctor were aware of

Medical Caregivers and Consent

o Medical caregivers are allowed to act in the absence of consent when:
! the patient is incapable of giving consent (intoxicated, mentally ill, incompetent,
unconscious)
! there is a risk of serious bodily harm (danger to life and limb) if the doctor does
not act (emergency doctrine)
if beforehand the patient has informed the doctor that there is some
procedure that they specifically refuse even in the case of emergency,
then the doctor must abide by this
in cases of religious objections the doctor will not be liable for following
the patients order not to act; if the doctor does act, they may be liable
but the damages are likely to be small
! under the circumstances, a reasonable person would consent to treatment
! under the circumstances, the doctor has no reason to believe the patient would
not consent
o in cases of surgery, consent is generally viewed as consent for the surgeon to do whatever
he feels is necessary during the course of the procedure
o medical mistakes
! generally, mistakes are seen as no excuse (example: Gill v. Selling; doctor
performed procedure on the wrong patient and was held liable for battery
because he did not have the consent of the patient for the procedure he
performed); however, if the mistake is induced by the plaintiff then the defendant
is not liable
Gaining consent by fraud
o in cases where consent is gained by fraud, the fraud must relate to the nature of the
touching in order to invalidate the victims consent; you have to look at whether or not
the touching would have been offensive to the reasonable person had the truth been
known; additionally, would the truth have mattered to the reasonable person (would the
reasonable person have consented knowing the truth?) (example: DeMay v. Roberts; the
doctor failed to notify the patient that the man he brought with him when he delivered the
plaintiffs child was his friend and not his medical assistant; the man held the womans
hand during labor and she was able to recover for battery)
! Consent by fraud brings up the following considerations: how much information
should the defendant offer? What if the plaintiff asks no questions? Is the
defendant expected to be forthcoming with information? With these issues where
is the line between what is not enough and what is enough information to
constitute valid consent? How much has to be known to make the consent valid?
Invalidating consent when the defendant has violated a criminal statute
o Example: person consents to engage in an illegal prize fight and dies in the fight. Can the
person who threw the fatal blow argue consent as an affirmative defense?
! Several consideration can go into making that decision (a) the idea of denying
compensation to someone who is an intentional wrongdoer and may have
committed a crime himself and been injured as a result (b) the effect of deterring
such a person, and others like him if he is denied recovery (c) the effect of
liability in deterring the defendant and people like him (d) the idea that when
there is equal guilt the position of the defendant is stronger
In states where consent to an illegal act is considered valid, courts will
still allow recovery to the plaintiff in cases where the statute was meant

to specifically protect the group that person is in (example: statutory

rape, even if the girl consents, her consent in invalidated and consent
cannot be used as a defense)
B. SELF DEFENSE
Definition of Self Defense
o All individuals are privileged to use reasonable force to defend themselves from a
threatened battery
o Self defense is used as an affirmative defense and places the burden of proof on the
defendant who must demonstrate the existence of the privilege
! The judge makes the determination as to whether or not a self defense instruction
to the jury is warranted by the facts of a particular case
Reasonable Belief
o The privilege of self defense exists where the defendant reasonably believes that he must
use force to protect himself from a battery
o In self defense cases, a reasonable mistake can protect the defendant from liability if
they used reasonable force (example: the defendant ejected a drunk man from a dance
and was later told that the drunk man was outside collecting bricks to attack him with;
the defendant went to the doorway looking for the drunk man, as he did so, he saw
someone running up the dimly lit stairs toward him; thinking this was the drunk man, he
knocked the person down the stairs; because he made a reasonable mistake he was not
held liable for the injuries he inflicted on the plaintiff)
Amount of Force
o The privilege limits the use of force that this which is or reasonably appears to be
necessary to protect oneself from a battery
! Things to consider in determining reasonable force are differences in age, size,
and strength between the defendant and plaintiff
o Inflicting death or grievous physical injury is only acceptable if you yourself are in
danger of meeting one of these fates
! Same applies to use of a deadly weapon to defend oneself
o The defendant has the burden of proving that their use of force was reasonable
! In some jurisdictions this is reversed if the defendant is a police officer; in these
cases the plaintiff must demonstrate a prima facie case of battery where the force
used was unreasonable
Retreat
o If a plaintiff can retreat without any additional danger to himself, should he do so rather
than stay and use deadly force?
! The plaintiff should stay and use force if in staying he can use force that is not
likely to cause serious injury
Based on the common law rule that rather than cause death or serious
injury to his assailant one should retreat to the wall
! This rule is generally not applied when the assault is occurring within ones own
home; a higher value is placed on individual dignity and honor
The plaintiff can stay and defend themselves even if they must kill their
attacker
! If there is even the slightest reasonable doubt that the defendant may not be able
to safely retreat, he can stay and use deadly force
Provocation
o Generally insults, verbal threats, or offensive language (provocation) do not justify
battery
! No privilege of self defense exists where there is only verbal provocation

However, if the verbal threat, insult, or offensive language comes along with some
threatening act which warrants apprehension of some imminent bodily harm then the
defendant may be privilege to defend himself with force
Retaliation
o The idea is defense of self against a threatened battery not retaliation
o When one is no longer in threat of a battery the privilege of self defense no longer exists;
at this point the victim can be liable for battery should he attack his original attacker
! Even if an individual started out as the aggressor in a given situation, they can act
in self defense if once they have retreated, they are attacked by the person they
initially attacked (if the aggressor has retreated he is no longer a threat to the
original victim and any attack at this point coming from the victim will constitute
battery)
Injury to a third person
o Transferred intent applies because the intent behind your action was self defense; the
privilege of self defense is transferred to the harm against the third person and the
defendant is not liable
! This is assuming that there is no negligence against the third person; in
determining whether there was some negligence, the emergency, and the need to
defend oneself are considered
C. DEFENSE OF OTHERS
Definition of Defense of Others
o The privilege of defense of others is similar to self defense except that it refers to the
defense of third persons
! Is usually used in situations where members of the same family are protecting
each other
Reasonable Force
o The defendant must use reasonable force necessary to protect the third person
! If they use excessive force they have exceeded the scope of the privilege
Reasonable Mistake
o it is sometimes held that when you step in to help a third person, you are basically taking
their place and are only privileged to use force when they themselves would be privileged
to act in self defense
! in this case, if you have made a mistake and stepped in to assist the aggressor you
are liable for this mistake because the person you aided was not privileged to use
the force you exercised
o reasonable mistake is also approached from the perspective that you are privileged to use
reasonable force to defend another even if you are mistaken in your belief that your
intervention is necessary
! for this to hold your mistaken assumption of necessity for intervention must be
reasonable
D. DEFENSE OF PROPERTY
Definition of Defense of Property
o The privilege to defend your property against intruders is limited to defending it against
unlawful intruders
! As a result the privilege does not carry to allow you defend your property against
those who are authorized to enter yet you do not want to enter
Reasonable Force
o The use of force to defend property is limited to the use of force that is reasonably
necessary to the situation as it seems to the defendant; you must use the minimum level
of force the situation requires
o

The question of what constitutes reasonable force is left to the determination of

the jury although there are some recognized limits
When the invasion is peaceful and the property owner is present, the use
of any force would be unreasonable unless a request for the invader to
depart was made first
a request is not required when the actions of the intruder would suggest
to a reasonable person that a request would be neither effective nor
safely made in time
o Use of Indirect Force
! When using indirect force, you can still be liable if the indirect force represents
an amount of force that you would not have been privileged to use had you been
present on the premise to inflict the harm yourself
Using Force Calculated to Cause Death or Serious Injury
o the preservation of life and limb is so important to society that unless you yourself are
threatened with danger to life and limb by the intruder, the rights of the intruder outweigh
your own as the property owner and you are not privileged to use deadly force
o when the intruder threatens the personal safety of the defendant or his family, deadly
force may be used if it is necessary under the circumstances; usually applies to nighttime
invasions
o when using reasonable force to prevent the commission of a crime, the allowed force is
usually of a higher degree
! for example, in stopping the commission of a burglary (a serious felony), the
level of allowable force is greater and may even be deadly
! there is an idea that the use of deadly force can be used to protect the right to
peaceful habitation
! some states modify the idea that deadly force cannot be used:
if defendant gives clear notice of the warning (in a case where a trap is
set or there is some kind of danger on the property meant for invaders;
not serious danger) (example: vicious guard dogs; barbed wire can serve
as its own warning, mechanical devices meant to cause some injury that
is not serious)
o however, even posted warning signs will not protect the owner if
the sign warns of dangers that represent an amount of force the
defendant is not privileged to use
! example is the use of mechanical devices installed for
the purpose of seriously harming the intruder; even if
there are warning signs, you are still not privileged to
use that level of force (Katko v. Briney)
the property owner may also be limited from ejecting the invader from
his territory if doing so will pose some sort of danger to the invader
(example: a teenager trying to ride on the back of a train cannot be
thrown off when the train is traveling at 30mph)
o however, if the invaders presence threatens the life of the owner
or other people in the premises then the privilege of self defense
and defense of others may justify the ejection
Reasonable mistake
! unlike self defense and defense of others, there is no allowance for mistakes
The only way you may escape liability for using force to defend your
property under a reasonably mistaken belief that the privilege existed is

if the intruder in some way misled you as to their true identity or

authorization to be on the property

Recovery of Property
o The privilege to use force to recover ones property is usually recognized in cases where
the interruption in possession has been very brief, in these cases it is seen as if the person
is actually defending his property rather than attempting to interfere with the property of
another
! this privilege is also extended to cases where someone had been dispossessed of
their property by fraud or force and the thief has taken flight; you are then
allowed to use force to get it back as long as the pursuit is fresh
Fresh Pursuit: in cases where the dispossession is discovered promptly
after it occurs and the owner uses prompt and persistent effort to get it
back; in this early stage defense of property allows for self remedy of the
crime that has been committed against you
o If there is an undue lapse in the time where the dispossession is not occurring or has
stopped then the owner of the property no longer has the privilege to use force to regain
his property; his only recourse now is the law, the right to use self remedy no longer
exists
o Use of Force
! As with the other privileges the use of force is limited to the use of force that is
reasonable under the circumstances
Force meant to inflict serious bodily harm is not reasonable in cases
where you are trying to recover or protect property
! If the person who has taken your goods resists you may use the force reasonably
required to protect yourself against them
Resorting to force will not be justified unless you have first made a
demand that the thief return your property
o This demand is not necessary when it reasonably appears that such a request would be
useless or dangerous
o Conditional Sale of Goods
! Cases where the buyer has purchased goods on an installment plan, has taken

the goods home and defaulted on the payments

Since the title to the property is still in the name of the seller he has the
right to repossess it
o If he can do so peaceably he is allowed to take it without liability
With respect to the use of force, the goods have been willingly
surrendered to the defaulting buyer so the owner has no privilege to use
force to regain it
o If the buyer will not hand over the property the only recourse is
legal; self remedy is not allowed in these cases

Negligence
Negligence
Duty
There is a foreseeable (PxL) and unreasonable (B<PxL) risk of harm
Majority: foreseeable risk to anybody (Andrews)
Minority: foreseeable risk to this plaintiff
Breach of Duty
Failure to take precautions to prevent the risk from occurring
Causation
Cause in fact
But for (unless two forces, each sufficient)
Proximate Cause
Majority: type of harm must be foreseeable (Wagon Mound)
Minority: chain of events must not appear extraordinary in hindsight (when there
is no independent intervening cause) (Andrews)
if there is an independent intervening cause
Intervening Cause
Independent- foreseeability test (you wouldnt have to see the intervening cause
just the type of harm)
Other
Criminal- more restrictive scope of liability; unless you can foresee the
intervening cause there is usually no liability
FOR THESE CASES Rescue- in the case of rescuers, you will be liable for the rescuers injury if they
YOU USE
are aiding in an injury that you caused
HINDSIGHT
Subsequent illness or accident
Subsequent negligent medical treatment
A. A NEGLIGENCE FORMULA
- the traditional formula for negligence include three elements which cannot be considered
independent of one another
- Elements in the traditional negligence formula
o Duty of reasonable care: an individual has a duty to use reasonable care and must
conform to a certain standard of conduct to protect others against reasonable risk
o Breach of that duty: failure to conform to the standard of conduct encompassed by duty;
referred to as a breach of duty (acted negligently)
o Causation: there must be a reasonably close causal connection between the negligence of
one party and the resulting injury upon another (two types of causation: causation in fact
and proximate causation)
o Resulting Damage: there must be actual loss or damage to the interests of another
person; there is an issue with assessing what constitutes damage
- to recover for a negligence claim a plaintiff must prove the existence of all four elements
-

negligence is used in two ways: a defendant can act negligently in that they failed to exercise the
standard of due care (breach of duty; second element of the tort of negligence) without being
liable for the tort of negligence (not all of the elements have been satisfied, for example: the
defendant acts negligently but the plaintiff does not suffer damages as a result)

when determining whether or not one should act, the reasonable person should take certain things
into consideration; the utility of the conduct in which one is going to engage must be
weighted against the gravity of the harm which may result from their conduct (we are not
sure what harm will result so essentially it is an estimation of the harm; must ask what the
reasonable person could reasonably foresee happening) (illustrated below utility of the conduct
versus the gravity o f the harm)
Negligence
Utility of Conduct
Social value of Ds interest

Gravity of Harm
Social value of interest to be protected

Plus
Whether conduct protects the interest

Plus
Probability of harm threatened

Whether there is a safer way to protect the

interest (are there alternatives to this conduct)

Gravity of harm threatened

Learned Hand Formula: formula from United States v. Carroll Towing Co. which is designed
to help determine how the reasonable person weighs the above factors when contemplating
whether or not to follow through on their conduct and what conclusion is reasonable based on a
specific set of facts
o Possibility that the injury will result is (P), injury is (L), and the burden to guard against
the injury is (B); formula is B<(PxL), so it B is less than (PxL) the defendant is liable for
the harm
! (B) is thought of in terms of weighing and actual monetary cost to determine
what is reasonable; will result in the reasonable person not taking every
precaution but only those that make sense economically (is the cost of the
precaution going to be more than the cost you would ultimately incur from the
resulting injury?)
Pros and Cons of the formula: those who support the formula generally do so because they take
an economic approach to negligence law and they see it as regulating conduct as a way to
promote efficiency; those who criticize the formula do so because they find difficulty is assigning
value to the different variables (how do you value loss known or unknown, how do you predict
the likelihood that something will happen?), and see it as being void of moral considerations
o Despite this, Hand never meant the formula to be a mechanical way to determine liability.
It is a way to highlight the factors the reasonable person weighs when making choices
about what conduct to pursue
Restatement 291 (Unreasonableness; How determined; Magnitude of Risk and Utility of
Conduct): where an act is one which a reasonable man would recognize as involving a risk of
harm to another, the risk is unreasonable and the act is negligent if the risk is of such
magnitude as to outweigh what the law regards as the utility of the act or of the particular
manner in which it is done.

B. THE STANDARD OF CARE

- the idea behind the standard of care is that we owe people a duty to exercise reasonable care in
our conduct; does not require that we avoid all potential injury to others but that we protect them
from our own carelessness
a. A REASONABLE PRUDENT PERSON
- the standard instruction in negligence cases has always been an objective standard; the jury is to
consider what a reasonable man of ordinary prudence would do under like conditions or
circumstances

10

the subjective standard of looking a the judgment of each individual defendant is not
used because it would result it inconsistent verdicts rather than a standard basis for
liability; would lead to trying a cases on someones intelligence and character rather than
their conduct; although some individual characteristics are considered to be part of the
conditions or circumstances applied when determining what is reasonable
difference between the specific and general standard of care: the specific standard of care
refers to the specific precaution the defendant failed to take, whereas the general standard of care
is the accepted standard for determining negligence (that of the reasonable person)
Personal and External Circumstances & the Reasonable Person
o proof of a custom or common practice: proof of a common practice can be submitted
as evidence that the defendant did not act in accordance with the practice and therefore
was negligent (did the defendant act as other customarily do in like circumstances?); the
jury can determine the reasonableness of the standard and based on this whether or not
the defendant should have followed it; from there they can carry on with the usual
estimation of negligence; the jury does not have to accept the common practice or can
determine that it is unreasonable (the existence of a common practice is not automatic
proof that such a practice is reasonable)
o the reasonable person & the emergency situation: (example: Cordas v. Peerless
Transportation Co. where the cab driver jumped out of his cab after a violent mugger got
in; the cab veered and hit a woman and her children; court applied the emergency
doctrine and found the cabby not liable); when a person is presented with a sudden
emergency situation (situation which is unforeseen, sudden, and unexpected), the
reasonable person standard no longer applies so what would be negligent under normal
circumstances may not necessarily be negligent in an emergency; if the emergency is
created by the actor then the emergency doctrine does not apply. It is not the negligent
action that occurs after the emergency that is inexcusable but the action that caused the
emergency
o disabled individuals and the reasonably prudent person: the commonly accepted and
applied approach is that when determining matters of negligence in cases involving
individuals with handicaps, the model of the reasonable man takes on the disabilities of
the person in question. The standard then becomes a matter of what a reasonable person
with the infirmities of the one in question would be expected to do.
o standard for children: normally the standard for children charged with negligence is
that of what it is reasonable to expect from a child of like age, intelligence, and
experience; however, as established in Robinson v. Lindsay, when a child is engaging in
an adult activity, or an inherently dangerous activity, the more suitable standard is the
adult standard
! Restatement: when a child engages in an activity which is normally undertaken
only by adults, and for which adult qualifications are required, the child
standard should not apply
! the reasonable child standard leads to a higher standard for children of superior
intelligence; the childs intelligence is an objective standard but in cases where
an adults negligence is in question intelligence would be subjective
example: Vaughn v. Menlove the defendant argued that he has exercised
his judgment to the best of his ability but that he should not be held liable
because his judgment wasnt good enough, this sort of thing is not
considered in cases of adult negligence because the standard is the
reasonable person
what constitutes an adult activity generally varies from jurisdiction to
jurisdiction, depending on common practice
o

11

standard for insanity: liability for negligence based on insanity depends on the kind and
nature of the insanity. The insanity must impair the persons ability to understand and
appreciate their duty, if the insanity does not do this it must affect their ability to control
what they are doing. Additionally, the insanity must occur without notice or forewarning.
Renders permanently insane people liable for their negligence.
! Policy behind this: (1) when innocent people suffer some sort of loss it should
be the person who caused it who bears the cost (2) to force the people in charge
of the insane person to control them (3) to avoid false insanity claims being used
as a defense
b. THE PROFESSIONAL
To apply the professional standard, the reasonable person takes on the profession of the actor and
an objective standard is applied.
o requires one to act with the knowledge, training and skill (or ability and competence) of
an ordinary member of their profession who is in good standing.
! This is not a higher standard of care it is a standard that is relevant to the
persons circumstance as a professional. It is still the objective reasonableness
standard
o Professionals contract with individuals to render service, but suits are usually brought for
negligence. The law imposes a duty to exercise normal skill. Service provider is usually
liable for negligence because the service does not specify a result. However, is the
contract specifies a result the suit will be for breach of contract not a tort.
a specialist within a profession is held to a higher standard than a general practitioner within that
profession
o doing so keeps the standards objective and avoid imposing different standards on each
individual person
the standard is not modified for pro bono work. Whether or not someone is paying for the
services of a professional, that professional is still held to the same standard of care
Customary Practice
o expert testimony: because the practices of professional require knowledge that is not
considered common knowledge, the plaintiff must provide expert testimony informing
the jury of the standard of care for that profession (what a reasonably prudent
professional would do); the only way expert testimony may not be necessary is if the
negligence is so obvious that it is within common knowledge and experience of the
average juror
! the expert testimony will not be valid if the expert testifies as to what they
personally would have done. Must establish that the defendants conduct was in
violation of the standard of care
o evidence that one has complied with the customary practice is admissible and influential.
In most cases of medical malpractice, once compliance has been proved the plaintiff very
rarely recovers
Medical Malpractice and Informed Consent
o Informed consent in negligence cases is differentiated from medical battery in that in
negligence case the question is whether the doctor was negligent in failing to disclose the
nature, consequences, risks, and the alternative to the procedure.
! An expert witness is needed in these cases (not needed in medical battery though)
to testify as to what the customary care is
! Standard is usually no longer what the reasonable physician would disclose but
what the reasonable patient would want to know. The reasonable patient
standard is not always used, can be set aside if the plaintiff would not have made
the reasonable persons decision.
o Patient suing under informed consent must prove:
o

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The physician failed to properly inform the patient of the material risks (those
likely to change the patients decision about the procedure) before getting
consent
! If the patient had been informed of the risks, he would not have consented to the
procedure
! The consequences the patient was not informed of did occur and resulted in an
injury
o As defenses, the physician can argue
! The patient knew of the risk, the risk was so widely known that most people and
very likely the patient already knew about it
! Full disclosure would have been detrimental to the patients interests
! The situation was an emergency situation and the patient was not in a position to
decide for themselves
o Locality rule: you must also look at where the person practices their profession (applies
for all professional negligence cases). What is reasonable in one place may not be
reasonable in another because of availability of resources. (example: the standard at a
wealthy hospital is different from that at an impoverished hospital because of lack of
resources). Looks at what the standard of professional competency is in a particular
locale
! Most places have abandoned the locality rule and now ascribe to national
standards of care; some refer to similar communities rather than the community
o Problems with medical malpractice and informed consent: in these cases, the
physician is liable for negligence even if the actual care and treatment was not
administered negligently. It is entirely based on the fact that the patient would have made
a different choice has the doctor not negligently failed to inform them of the risks
c. AGGRAVATED NEGLIGENCE
degrees of care
o the care required under the reasonable person standard varies according to the level of
risk. The more dangerous the activity you are engaged in, the more care you are expected
to exercise.
o In the case where one has taken on a special duty to others (example: common carriers),
they are expected to exercise care in accordance with that duty. In many cases, this level
of care has been referred to as the highest degree of care.
! This standard has been viewed as incorrect because there is no legally recognized
degree of care. Instead it is viewed as greater or less care than that taken by the
reasonable person under similar conditions. Some situations require a greater
amount of care not a greater degree.
degrees of negligence
o an attempt to divide negligence into different degrees: slight (failure to use great care),
ordinary (failure to use reasonable care), and gross (failure to exercise even slight care)
o the distinctions have been met with a lot of criticism because it is hard to set lines
distinguishing them from one another
o gross negligence is often used as a synonym for recklessness
willful, wanton, and reckless conduct
o There has also been an attempt to distinguish types of negligence based on the mental
state of the defendant. The result is that there is a class of torts between negligence and
the intentional torts.
! Characterized by the deliberate and conscious disregard for a known high degree
of probability of harm to another; requires more awareness than negligence does
! This is usually the threshold for the recovery of punitive damages and particular
causes of action

13

C. RULES OF LAW
- example: Pokora v. Wabash- there was a previous rule that did not allow the determination of
negligence to go to the jury. The rationale was that failing to follow certain precautions was so
negligent that the decision need not be taken to the jury because no one would even find it not
negligent. The determination of negligence was then made by the judge
o The court in this case puts forth the general idea that standards of behavior should not
be made into rules of law. In any given situation there are a variety of factors which
must be taken into account to determine whether or not the person acted appropriately.
D. VIOLATION OF STATUTE (NEGLIGENCE PER SE)
- although the general negligence standard is that of the reasonable person and courts cannot come
up with their own standards, legislatures can enact statutes that establish standards of care for
common situations
o violations of these statutes will offer proof that the defendant was violated the second
element of negligence, breach of duty
- Negligence per se: In statutory negligence, a statute fixes negligence so a violation of the
statute results in conclusive evidence that negligence has occurred, this is negligence per se
o when there is a statute or some ordinance that establishes a duty that is meant to protect
of benefit other people, failure to carry out the established duty results in liability.
Whether the duty arises from a statute or common law principles does not matter.
! If derived from common law principles, the principle is used to measure the duty
- When a statute or regulation defines reasonable conduct or a standard of care, the decision as to
whether the statutes standard of care should be adopted is at the discretion of the court.
- For the standard of care set forth in a statute to apply, the court must look at the appropriateness
of the standard as a measure of care. Most statutes establish a small criminal penalty and may
not always be appropriate for use in tort law. Once the appropriateness has been established you
must then consider that
o Under negligence per se theory, the statute must establish a standard of care relevant to
the circumstances. To do so it must meet the following requirements:
! The party seeking damages is in the class of people the statute intends to protect
! The harm that occurred was the type of harm legislature was trying to prevent
with the statute
o If the defendant successfully demonstrates that these two requirements are not satisfied,
the plaintiffs claim of violation of statute will not have a per se effect. The plaintiff will
not lose his case but will have to prove that the defendant was negligent based on the
usual reasonable person standard of negligence.
- Most courts take the approach that when a statute applies to the facts of the case, an unexcused
violation of the statute is negligence per se, but the defendant can offer evidence of excuse or
justification. The only way the violator will not liable is if the violation is excusable. (sometimes
when the violation is undisputed and inexcusable, the court will take the issue away from the
jury and will declare negligence as a matter of law)
o What constitutes an excusable violation?
! If an emergency arises that is not of the person in questions creation, the actors
incapacity prevents him from following the statute, doesnt know or shouldnt
know that he must comply, he is unable, after exercising diligence and reasonable
care to comply, compliance would cause a greater risk of harm than non
compliance (sometimes it is more reasonable to disobey the statute than to follow
it)
! This list of excuses if from the restatement (second) of torts 288A and is not
meant to be exclusive; defendants can offer proof of other excuses
! The jury must determine whether the defendant acted reasonably under all
circumstances, including his violation, and reason for noncompliance

14

How is this different from the regular negligence standard?

! Its not really clear, it is very similar
For this approach and (1), the burden of proof stays on the plaintiff to
show that the defendant was negligent. If the defendant offers proof of an
excuse, the burden is still on the plaintiff to show that despite the
evidence offered by the defendant, the defendant did not behave as a
reasonable person would have
! Some statutes are designed so that they do not allow for excusable violation:
child labor acts, food safety act, etc. These are essentially strict liability
- The states that dont follow this either (1) take the violation of the statute as presenting the
presumption of negligence which will become negligence per se unless the presumption if refuted
by showing an excuse of the violation (because it requires an excusable violation, its essentially
the same thing as the majority negligence per se rule) (2) some view the violation as being
evidence of negligence which the jury can accept of reject even in the absence of evidence from
the defendant rebutting the plaintiffs allegation of negligence
o (2) differs from the majority approach and (1) in that in those approaches, if the
defendant does not present proof of an excuse, the judge will instruct the jury to find him
negligent is they find that he violated the statute
E. PROOF OF NEGLIGENCE
a. COURT AND JURY: CIRCUMSTANTIAL EVIDENCE (DEALING WITH STANDARDS OF PROOF)
- circumstantial evidence versus direct evidence
o direct evidence is a direct assertion speaking to the thing we are talking about; an
example of this is direct witness testimony
o circumstantial evidence is evidence of facts from which the jury can infer negligence
! requires you to ask if the evidence is relevant, which is must be
if it is relevant then the fact you are trying to prove is either more or less
likely than it was when you introduced a certain piece of evidence
the evidence must also be sufficient to prove what you are trying to
establish by a preponderance of the evidence
o example: banana peel cases- the plaintiffs who slipped and fell on banana peels do not
have direct evidence to prove that the banana was on the floor long enough for the store
employees to have noticed it. Instead they must rely on circumstantial evidence relating
to the condition of the banana to show that it was one the ground long enough for the
store employees to have noticed it (constructive notice). Thus, allowing the jury to infer
that they were negligent.
b. RES IPSA LOQUITER
- Res ipsa loquiter (the thing speaks for itself it): permits but does not compel an inference of
negligence. Res ipsa loquiter is not really a separate principle of negligence but a form of
circumstantial evidence. The idea is that from some facts you can infer other facts.
o Even though the plaintiff cannot offer direct or circumstantial evidence or exactly what
caused his event that led to his injury he should be allowed to go to the jury on the issue
of negligence by showing that the circumstances bespeak negligence even without
showing, more specifically the chain of events
- For the plaintiff to get to the jury, he cant just invoke res ipsa loquiter. There must be reasonable
evidence for an inference of negligence, where the plaintiff must show that (1) the accident is one
that would not, in the ordinary course of events, have occurred without negligence, and that (2)
the negligence, if any, is more likely than not attributable to the defendant. A corollary to this
second requirement is that the instrumentality causing the injury must have been under the
exclusive control of the defendant at the time of the injury (however the rule is not applied so
strictly that res ipsa is barred in cases where it is logically applicable)
o

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These are the two basic requirements for res ipsa loquiter but some jurisdictions
add the requirement that the event cannot have been brought about by the actions
of the plaintiff. even if this is the case, the evidence can still support an inference
that the defendant was negligent
The plaintiff is not required to eliminate with certainty all other possible causes or inferences.
All that is required is evidence from which a reasonable person can say that it is more likely than
not that there was negligence associated with the cause of the event that occurred
In res ipsa loquiter there is no direct evidence of the specific standard of care and the evidence
does not show any specific negligence.
o There is circumstantial evidence as to some general negligence because you know that
some negligence has occurred. You are inferring some negligent act on the part of the
defendant from the circumstantial evidence.
o Based on the evidence the jury might not be able to recreate the sequence of events but
they might be able to infer that whatever occurred was the result of the defendants
negligence
three different ways courts can apply res ipsa loquiter: (1) it will warrant an inference of
negligence which the jury may or may not draw (2) raises the presumption of negligence that will
require the jury to find negligence if the defendant cannot provide evidence to show that he
wasnt negligent (3) raises the presumption but also shifts the burden of proof to the defendant to
show that he was not negligent
o (1) is the general approach to res ipsa loquiter taken by most courts
Effect of pleading negligence of res ipsa loquiter: jurisdictions take different approaches to
how res ipsa loquiter should be treated if the plaintiff has pled some specific act of negligence.
The various ways of treating res ipsa loquiter are that the plaintiff (1) cannot use it at all (2) can
use it as long as the inference of negligence supports the allegations (3) can use it only if the
specific pleading also includes a general allegation of negligence (4) it is available regardless of
the nature of the pleading
o Similar approaches have been taken toward the introduction of specific evidence of
negligent conduct and the use of res ipsa loquiter
medical malpractice cases & res ipsa loquiter: some examples of malpractice are thought to be
within common knowledge and you can get a case of res ipsa loquiter, others require expert
testimony to make the case
special rule for common carriers: generally if there is an accident involving two cars, there is
no case of res ipsa loquiter against either of them. If the accident involves a common carrier, and
injury is suffered by the passenger of the carrier, then there is a res ipsa loquiter case against the
common carrier because of his duty to the passenger

Causation in Fact
A. SINE QUA NON
- causation in fact: must ask if there is a physical cause and effect relationship between the
defendants act and the plaintiffs harm
- Negligence is not actionable unless you can show that the negligence was a cause in fact of the
harm that occurred. If the accident would have happened even without the defendants negligence
then he is not a but for cause.
o But for test: must show that the injury would not have occurred but for the defendants
conduct
- A defendants negligence need not be the only but for cause of the injury, but must be a but for
cause (this applies whether the two negligent acts happen at the same time or are separated)
o Example: Telephone Company negligently attaches a transformer to a utility pole. It is
screwed on loosely. A driver hit the telephone pole and the transformer falls injuring a

16

child. Both parties were negligent, the driver in hitting the pole and the telephone
company in securing the transformer. Both were also but for causes of the accident. Had
the telephone company not been negligent the transformer would not have fallen when
the driver hit the pole. Had the driver not been negligent he would not have hit the pole.
Both are but for causes.
B. PROOF OF CAUSATION
- Loss of chance (almost always in medical malpractice cases): In loss of chance cases, the
plaintiff must show that the harm would not have occurred but for the negligence of the
defendant. However, the plaintiff is trying to demonstrate that the outcome may have been
different but for the defendants negligence. The whole thing is very speculative
o Loss of chance cases do not involve the same degree of certainty of evidence that other
cases do, so loss of chance cases are allowed to go to the jury with substantially less
evidence than the usual negligence case. The jury needs to be shown that the defendants
actions increased the risk of harm to the plaintiff. The evidence is based on probabilities
and does not constitute the same type of evidence you would get from the testimony of a
medical expert.
- Awarding damages: for loss of chance case, being able to prove loss of chance does not entitle
the plaintiff to full recover. Instead, they are awarded damages that are a direct result of
premature death (loss of earnings, and additional medical expenses).
- Approaches to damages in loss of chance cases
o Probabilistic rule: if the plaintiff can demonstrate that the defendant increased his risk
by a certain percentage then the defendant is liable for that percentage of damages
o All or nothing standard: plaintiff has to show that the defendant more likely than not
increased his risk. If he does so, then the defendant is liable for full damages.
C. CONCURRENT CAUSES
- When there are two actively operating forces and each would be sufficient to bring about the
harm, the but for test is not applicable
- to deal with these types of cases, the court must apply the substantial factor test
o as long as the contribution of the force was sufficient to cause the harm, then it can be
said that either force is causal even though neither was necessary because without one the
other would have caused the harm
- Substantial factor test: what happens when you have two negligent defendants and eithers
conduct was sufficient to bring about the plaintiffs harm?
o Coming from Anderson v. Minneapolis (case of two fires merging to burn down
property), a defendants negligence can be a cause in fact if it was a substantial or
material element in brining about the plaintiffs injury
o IMPORTANT: the substantial factor test is only used when the but for test cannot be
applied. It is not and either/or kind of situation.
D. PROBLEMS IN DETERMINING WHICH PARTY CAUSED THE HARM
- when two defendants acting in concert, result in some harm to the plaintiff and it is impossible to
see which one caused the harm (Summers v. Tice: three men on a hunting trip, both shoot toward
the plaintiff, one hits him but its impossible to know which hit him), the burden of proof shifts to
the defendants
o Each defendant is responsible for showing that he was not the one responsible
(alternative liability)
o Acknowledges the fact that the defendants have put the plaintiff in the difficult situation
of having to place blame on one of them and if he cant do so, they will both escape
liability. Also acknowledges that the defendants are better equipped to provide evidence
than the plaintiff is. Burden of proof in these cases is shifted to the defendant.
o if one defendant cannot prove that he was not the one who caused the harm, the
defendants are left to apportion the damages between themselves

17

Market share liability (has only been adopted by a minority of jurisdictions): when there is a
case involving members of some industry as defendants and the plaintiff cannot say for sure who
caused her harm, and not all members of the industry are joined, but that the industry as a whole
has been negligent in the production of some good. If the joined defendants constitute a large
enough portion of the market, then causation will be established. Each defendant will be liable for
damages based on his share of the market, unless he can show that he did not produce the harmful
product.
o This approach redesigns the but for problem. Instead of pinpointing who caused the
plaintiffs harm, it looks at who created the risk and how much of the risk they are
responsible for.
! Obviously you get defendants paying who were not the cause of the plaintiffs
harm
o Most jurisdictions do not allow this approach and still require plaintiffs to prove the
identity of a specific tortfeasor
o Example: Sindell v. Abbott Laboratories: woman sued drug manufacturers for cancer
caused by pill given to her mother during pregnancy. All manufacturers produced the
drug in an identical form. How do you know which was the but for cause of your harm?

Proximate of Legal Cause

-

proximate cause deals with limiting the scope of liability. In some cases, the use of the but for test
would make a defendants liability almost indefinite. As a matter of policy, courts have said that
there needs to be some line where liability ends so that defendants are not liable for all
consequence of their conduct.
o this is the goal of proximate cause, to limit the scope of liability
- ways that you can limit the scope of liability:
o limiting the class of persons who can recover; essentially limiting the class to which the
defendant owes a duty
o proximate cause: the type of harm that happens was the type that was foreseeable
regardless of the mechanics of how it came about
o intervening causes
- If the defendants action is not the proximate cause of the plaintiffs injury then the defendant will
not be liable
- If a defendants negligence is not a but for cause of the plaintiffs injury the court will never get
to the question of whether it is a proximate cause. Once you establish that the negligence was a
but for cause you must then move of to determine if the defendant is liable. To do so you must
establish that his negligence was a proximate cause.
A. UNFORESEEABLE CONSEQUENCES
- foreseeability: with proximate cause, the standard for liability is foreseeability. You are only
liable for those results which are reasonably foreseeable consequences of your negligent
conduct. (if you could have anticipated a particular risk at the time you acted and negligently
failed to avert that risk)
o It would be unfair and unjust to hold people responsible for things they could not have
foreseen. If you are unable to foresee a particular consequence then you are unable to
take measures to prevent its occurrence.
- If the type of harm that resulted is a foreseeable consequence of the defendants negligence then
the issue is one of fact; if the harm that resulted is not of the type stemming foreseeably from the
defendants negligence then the issue of one of law
- Different approaches to foreseeability of harm
o Hughes v. Lord Advocate Approach: foreseeability depends on the foreseeability of the
type of harm not the way the harm occurred. You do not have to foresee all of the details

18

of how the harm resulted as long as the resulting harm was of the same type as was
foreseeable.
! Example: Hughes v. Lord Advocate- postal workers left a worksite unsecured
with paraffin lamps. Children came to play with the lamps and were injured by
an explosion. The defendant argued that they were not liable because they could
not foresee the explosion. However, because they could foresee that the children
would be burned, it did not matter how it happened, or that they could not foresee
the explosion. (in order to establish a coherent chain of causation it is not
necessary that the precise details leading up to the accident should have been
reasonably foreseeable; it is sufficient if the accident which occurred is of a
type which should have been foreseeable by a reasonably careful person)
! Taking this approach has the potential to expand the scope of liability further
than it was expanded in Hughes. With the right manipulation of the facts, almost
anything can be foreseeable
o Doughty Approach: foreseeability depends on the way the harm occurred. It is not
enough for the harm to be of the same type, even if the type of harm that resulted was
foreseeable.
! Example: Doughty v. Turner Manufacturing Co. - the company knew that
accidents could occur from objects falling into the vat, and causing splashes
injuring workers. Someone accidentally knocked an asbestos cover into the vat
and instead of a splashing occurring from it hitting the surface, a chemical
reaction occurred beneath the surface, resulting in splashing and the injury of a
worker. The court did not hold the company liable because while injury by
splashing was foreseeable the manner in which the splashing occurred was not.
o Neither of these approaches represents a minority or majority approach to foreseeability.
Courts apply either.
o Why have these two different views? Having both approaches to foreseeability,
although confusing allows for the flexibility necessary to come to just decisions. If the
rules were rigid, there wouldnt be space for exceptions or cases where one rule may not
apply. The result however is that there will be a gray area where some cases can be
decided either way.
Social policy of foreseeability
o Example seen in Ryan v. NY Central R.R. where railroad accidentally set their own shed
on fire and the fire spread and burned down homes several houses away. The fire
spreading was foreseeable, but it burning down the plaintiffs house which was several
hundred feet away, was a remote consequence of the railroads negligence.
o In situation such as this, the scope of liability is limited for social policy reasons. With
proximate cause you are attempting to limit the scope of individual liability. In the case
of the railroad, the plaintiff can protect himself for fire damage through insurance, rather
than holding the railroad liable for remote consequences of its actions. If this were
allowed it would have a negative financial impact on the railroad. The liability placed on
them would outweigh the harm and would lead to risk adverse behavior and the railroad
spending too much money to prevent this type of harm.
Thin Skull/Eggshell plaintiff rule & liability for unforeseeable consequences: it is widely
accepted that a defendant must take the plaintiff as he is, preexisting conditions and all.
Defendant is held liable for the full consequences of a plaintiffs injuries even though due to
plaintiffs particular susceptibility to harm, those consequences were more severe than a normal
person would have suffered.
o Suppose the defendant causes a car accident in which the plaintiff is injured and these
injuries result in the aggravation of some preexisting condition, be it physical or mental.

19

Even though the aggravation of the preexisting condition and the ultimate harm to the
plaintiff is not foreseeable, the defendant is still liable.
! The scope of liability is being expanded here, while it is being expanded beyond
foreseeability, it is not expanded very much because the harm has been inflicted
on one person. Its not a chain reaction type situation where the defendant would
be liable to multiple plaintiffs.
Duty & Foreseeability of Plaintiff
o Palsgraf: for there to be negligence, the defendant must breach his duty to someone he
owed a duty to. Unless the plaintiff belongs to the class of persons the defendant owes a
duty to, there can be no recover. There are two approaches to determining who a duty is
owed to (really just foreseeability disguised as duty)
! Majority (Cardozo): a duty is owed only to those people who would be
foreseeable victims of the defendants negligence (they were in the zone of
danger). If you can see that there is an unreasonable risk of harm to a particular
person, then you have a duty to that person. class of persons limitation
(plaintiff must belong to the class of persons that are to be protected). This view
is the view that the majority of courts use
! Dissent (Andrews): if you breach a duty to anyone, and put others in danger,
then you have breached a duty to everyone. Your duty is essentially to the world.
The breach of duty to one person transfers to give you a breach of duty against
others.
Established things one should consider in determining if something is a
proximate cause: was there a natural and continuous sequence between
the cause and the effect? Was one a substantial factor is bringing about
the other? Was there a direct connection between them without too many
intervening causes? Is the effect of the cause on the result not too
attenuated? Is the cause likely to produce the result? By the exercise of
prudent foresight could the result be foreseen? Is the result to remote in
time and space to the cause?
The main this with this approach is to apply foreseeability in hindsight.
You must look back at what happened and determine whether or not the
result was a foreseeable consequence of the event
Expands the scope of liability beyond that of the regular foreseeability
approach

If the defendants conduct is the proximate cause of the plaintiffs injury then it must also be a
cause in fact as well.
o You can have situations where the defendants conduct was a but for cause but was not a
proximate cause (there is no liability in these cases) (plaintiffs injury would not have
occurred, but for the defendants actions but the plaintiffs injury was not a foreseeable
consequence of the defendants actions)
B. INTERVENING CAUSES
- an independent intervening cause or force is one which actively operates in producing harm to
another after the defendant has already committed his negligent act or omission
- When the actions of a third person intervene between the defendants conduct and the plaintiffs
injury the causal connection is not automatically broken. There are two types of intervening
causes and which type the intervening cause is determines whether or not the causal chain will be
broken.
o foreseeable intervening causes

20

the defendants liability depends on whether or not the intervening cause is a

normal and foreseeable consequence of the situation the defendant created with
his negligence
Restatement 442A: Where the negligent conduct of the actor creates or
increases the foreseeable risk of harm through the intervention of another
force, and is a substantial factor in causing the harm, such intervention is
not a superseding cause.
! Examples: negligence of rescuers (original tortfeasor will be responsible for the
ordinary negligence of a rescuer because rescuers are foreseeable), subsequent
medical malpractice
o unforeseeable intervening causes
! if the intervening act is extraordinary, not foreseeable, or independent of and
removed from the defendants conduct then it becomes a superseding cause and
breaks the causal connection between the defendants negligence and the
plaintiffs injury and the defendant is free from any further tort liability. The
defendant will be responsible for the injuries that his negligence cause but will
not be responsible for new injuries or aggravation of the injuries he cause
brought on by the superseding cause.
Restatement 40: A superseding cause is an act of a third person or
other force which by its intervention prevents the actor from being liable
for harm to another which his antecedent negligence is a substantial
factor in bringing about.
Restatment442: The following considerations are of importance in
determining whether an intervening force is a superseding cause of harm
to another:
(a) the fact that its intervention brings about harm different in kind from
that which would otherwise have resulted from the actor's negligence;
(b) the fact that its operation or the consequences thereof appear after the
event to be extraordinary rather than normal in view of the circumstances
existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any
situation created by the actor's negligence, or, on the other hand, is or is
not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third
person's act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person
which is wrongful toward the other and as such subjects the third person
to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets
the intervening force in motion.
-

If the intervening cause is dependant, in that it operates in response to or is a reaction to the

situation created by the defendants negligent conduct, it is less likely to be a superseding cause.
Gibson v. Garcia- if the defendants conduct puts the class of persons the plaintiff is part of in
danger of a foreseeable risk and by act or omission the defendant is contributing substantially to
an injury of that type, then the defendant an be liable despite the existence of an unforeseeable
independent intervening act which is a concurrent cause (Hughes type standard, because the
injury is foreseeable so it doesnt really matter how it came about as long as it was caused by the
defendants negligence)

21

A plaintiffs own conduct can constitute an intervening cause that serves as a superseding
cause. However, the plaintiffs conduct must amount to more than contributory
negligence for this to be the case
o An Act of God or Force of Nature are often intervening cause and can sometimes be
superseding causes as well
! Restatement450: The extraordinary operation of a force of nature, which
merely increases or accelerates harm to another which would otherwise have
resulted from the actor's negligent conduct, does not prevent the actor from being
liable for such harm.
! Restatement 451: An intervening operation of a force of nature without which
the other's harm would not have resulted from the actor's negligent conduct
prevents the actor from being liable for the harm, if
(a) the operation of the force of nature is extraordinary, and
(b) the harm resulting from it is of a kind different from that the likelihood of
which made the actor's conduct negligent.
Liability for criminal intervening causes: the regular rules do not apply in the case of
intervening causes that are criminal. The only way the defendant can be liable is if it was
foreseeable that the criminal act would occur. The Hughes & Gibson rules, applying liability if
the resulting harm is of the same type that was foreseeable, do not apply. Criminal intervening
causes are almost always superseding causes.
o Exceptions to this rule include: where defendant is under duty to protect plaintiff
against criminal misconduct and fails to do so, defendants actions have destroyed some
protection the plaintiff has put around himself or his property to guard against criminal
activity, the defendant brings the plaintiff into contact with someone who is likely to
commit a crime, putting the plaintiff at risk, defendant is in control of someone with
dangerous criminal tendencies and fails to restrain him
Rescue Doctrine: The rescue doctrine says that rescuers are to be expected and as a result,
should not be barred from brining suit when they are injured after knowingly putting themselves
in danger to save someone.
o Because of the rescue doctrine, the defendant is treated as if he had foreseen the rescuer
even if he actually didnt. With the rescue doctrine, rescuers are foreseeable because the
doctrine tells us they are.
For professional rescuers (police officers, a firefighter, a lifeguard, etc.) most states have a rule
which precludes them from recovering if the risk is one which is reasonably anticipated by their
job
Defendants will be liable to someone who was injured trying to escape from danger created by
the defendant
Subsequent illness or injury: if the plaintiff suffers an injury as a result of a weakened condition
that was a result of the defendants negligence, the first defendant will usually be liable for the
second injury.
Subsequent negligent medical treatment: generally, if the plaintiff suffers subsequent injury
from an attempt by a medical professional to alleviate the harm caused by the defendants
negligence, the defendant will be liable. However, if the medical professionals intervening
negligence is deemed unusual, the court may consider it superseding.
o

When looking at these last three situations, hindsight it used

o the court must look at the event, knowing the way things turned out and the situation as it
was when the new force intervened, and determine whether or not the intervening force
was so extraordinary that it can be said to fall outside of the normal events that would
stem from the defendants negligence

22

Joint Tortfeasors
A. APPORTIONMENT OF DAMAGES
- Successive tortfeasors (unrelated accidents): where a plaintiff is involved in two unrelated
accidents and the second accident aggravates injuries sustained in the first, the plaintiffs ability
to recover depends on which of the defendants he is suing
o First defendant: if the plaintiff sues the first tortfeasor and the damages are
theoretically divisible, the burden is on the plaintiff to apportion the damages between
the two defendants to determine what the first defendant was responsible for. If the
plaintiff cannot do this he is barred from recovery.
o Second defendant: if the plaintiff sues the second tortfeasor and the damages are
theoretically divisible, the burden would fall on the defendant to prove what portion
of the damages he was responsible for. If he cannot do so, the defendant will be liable
to the plaintiff for all damages, from both the first and the second accident.
- Concurrent tortfeasors: where the tortuous conduct of two defendants concurs to cause the
plaintiffs indivisible injury and both are jointly and severally liable for the full damages.
o If two concurrent tortfeasors result in the plaintiffs death, the death is considered an
indivisible result, so both are liable for the full result.
- Successive tortfeasors (related accidents)
o example: a driver negligently strikes a pedestrian and breaks his leg. The pedestrian is
lying in the street and cannot move when a bicyclist runs over his arm. When he is treated
at the hospital, the doctor negligently aggravates his leg injury. What is each defendant
liable for?
! The bicyclist only caused the arm injury so that is what he is liable for. The
physician only caused the aggravation of the leg injury so that is what he is liable
for. The physician hit the plaintiff and created the perilous situation by which he
could acquire the other injuries, so he is liable for the entire thing.
Each defendant is only liable for those damages which he caused
- If the defendant can show that several defendants caused an injury and are liable, then the burden
shifts to the defendants to divide the damages. If the defendants cannot do so then they are jointly
and severally liable (joint and several liability is where the defendants actions result in an
indivisible injury to the plaintiff)
o If independent and concurring acts product distinct and separate injuries or there is some
way of determining who caused what damages, then the defendants are not jointly liable
o If the liability cannot reasonably be divided then the defendants are jointly liable even if
there was no common duty, design, or acting in concert
- Assessing damages when the defendants negligence leads to the plaintiffs premature
death: in these cases, in order to determine damages, you must look at what would have
happened to the plaintiff had the defendants negligence not killed them. You must essentially
assess what the plaintiffs value would have been had they not died.
o Example: Dillon v Twin State- the boy was electrocuted and killed because to
defendants negligence when he grabbed onto a cable on a bridge. In assessing the
damages owed by the defendant, the court looked at what would have happened to the
boy had he not been electrocuted; he would have both fallen and died, or fallen and been
maimed. Depending on these scenarios his earning potential would vary as would his life
span, affecting damages.

Duty of Care
-

this entire section has to do with determining immunity from liability and situations where the
scope of liability is limited

23

the harm in these cases may and often will be a foreseeable consequence of the defendants
conduct, however liability is limited for policy reasons related to duty
- Moral obligations legal obligations; just because you may have a moral obligation to someone
does not meant the law will impose a legal duty on you.
o Limits in the realm of duty are meant to avoid placing excessive burdens of individuals,
may cause a chilling effect with respect to certain conduct, the duty may be hard to
enforce
A. FAILURE TO ACT
- there is no general duty to act and to help others. The idea behind this is personal autonomy and
the desire to stay away from converting moral duties into legal duties.
o Not creating general duties to others serves to limit the scope of liability in very much the
way proximate cause does.
- In situation where you have no, or limited duty to another, you will have immunity from
liability even if you are negligent
- Although there is not general duty to act, suppose you do undertake and effort to help or rescue
someone. Even though there is no general duty what happens?
o If you affirmatively create a dangerous situation for someone you will be liable if you
do not help them. If you have not created their situation, then you are not liable for
failure to aid them.
! There is no general duty to help people, but there is a duty to take reasonable care
to avoid hurting others
- If you have begun an attempt to rescue or aid someone, then you must take reasonable care to
perform the task. If you do not, you can be liable for injuries that result.
o You can offer as little or as much help as you would like, and can give up on the rescue
attempt at anytime. The main thing is that you do not leave the plaintiff in a worse
situation than you found them in (misfeasance).
- Detrimental reliance: if someone, be it the plaintiff or a third person, relies on your botched
rescues attempt to the detriment of the plaintiff then you can be liable
- If the defendant has created the risk: if you have created a risk, you have a duty to exercise
care to avoid injuring others
o Example: when a defendant, by his own negligence injures someone, he is under an
affirmative duty to aid that person; a defendant creates a dangerous situation on a
highway, he has an affirmative duty to take precaution to protect others which may come
across it.
- Although there is generally no duty to help other, some exceptions exist when there is a special
relationship between the defendant and the plaintiff
o Relationships that confer duty: common carriers/passengers, innkeepers/guests,
custodian/ward, inviter/invitee, instrumentality that causes harm to the plaintiff is
exclusively in ones control (in this case, there is a duty even if the accident or original
injury was caused by the plaintiffs own negligence or the negligence of a third person,
but not the defendant; defendant must help whether they were negligent or not), employer
and employee (but only where the defendant cannot look after himself and within the
course of his employment),
o Just because one of these applies does not automatically make the defendant liable. It
must be shown that he was negligent.
- Generally there is not duty on doctors to help others who need medical assistance. This is policy
based, as should the doctor aggravate the situation he would then be open to malpractice suits.
- Duty to warn: there is no general duty to warn or to protect, but such a duty can arise from some
special relationships
o Example: where a psychiatrist knows that his patient is likely to become violent toward a
particular person or has warned of violence against a particular person, the doctor has a
-

24

duty to warn that individual (example is Tarasoff v. Regents). The doctors duty is to
warn the potential victim, not confine the patient (this is the general rule).
! Because of doctor/patient relationship is based on privilege there must be a
balancing between the privilege between the doctor and patient and the public
good to be obtained by breaking this privilege
B. PURE ECONOMIC LOSS
- pure economic loss is when someone incurs damages that are purely financial without any
physical harm to himself or his property
- courts take limitations on liability more seriously when dealing with cases of pure economic loss
- negligent acts leading to pure economic loss
o In cases such as this, all of the harm may be foreseeable, but the defendant will not be
liable.
o With cases of pure economic loss, if the defendant was made liable to everyone who was
foreseeably a victim; the scope of his liability would be virtually infinite.
o In cases such as these, some remedy other than tort law should be used
! Example: there is an accident that snowballs and effects several industries.
While the defendants actions would foreseeably lead to all these results, there
are more effective ways of dealing with the losses than holding him liable. if the
people or industries suffering losses had contracts with one another they can
settle the issues among themselves using contract remedies
- However, if you incur economic loss as a result of some physical damage caused by the
defendants negligence, then you can recover for the economic loss.
o There is no obligation to be responsible for pure economic loss but you if there is
physical injury resulting in economic loss then the defendant is responsible. There are
limits to this though. There must be some way to assess how much you have lost as a
result of the physical harm.
! Example: the defendants negligence damages a ship and it must be sent off to
be repaired. The defendant will be liable for the business lost while the ship was
off being repaired.
C. MENTAL DISTRESS AND RESULTING INJURY
- what constitutes emotional distress?
o It can be pain, suffering, or embarrassment
- Mental distress stemming from the defendants negligent conduct is referred to as indirect
infliction because these claims are generally asserted by bystanders
o The distress in these cases is usually foreseeable and severe so the plaintiff generally does
not have an issue establishing causation (actual and proximate). However, courts have
traditionally tried to limit liability for the indirect infliction of emotional distress by
appealing to duty
! Defendants do not have a duty to avoid inflicting emotional distress. If they do,
the duty is very limited.
- This lack of duty, or limited duty has been held to because
o The foreseeability of this type of harm warrants restraint on liability. You cannot make a
defendant liable to every bystander who may have been emotionally harmed by their
negligent conduct.
o Recognizing a duty to bystanders would create a duty to someone the defendant has no
relationship or interaction with.
o Creating such a duty will create a large number of cases for indirect infliction of
emotional distress and will lead to fraudulent claims.
- Impact rule: traditionally, courts required that the mental distress stem from some sort of
physical injury acquired as a result of the defendants negligence

25

Moving away from the impact rule: many courts have done away with this rule and
have held that when there is definite and objective physical injury that is a result of the
mental distress that was proximately caused by the defendants negligence then the
plaintiff can recover if their reaction was foreseeable
! Some courts have done away with the physical harm requirement and use an
extreme emotional harm standard which includes medically diagnosable and
medically significant conditions. So the emotional distress must lead to some
resulting physical injury
- Reasonable reaction: the defendant will not be held liable for the plaintiffs hypersensitivity. If
the plaintiff has a reaction that is not akin to the reaction a normal person would have then the
defendant is not liable.
- Zone of danger: for the plaintiff to recover it must be found that they were in the zone of danger,
or were themselves in such proximity to the defendants negligence that they feared for their own
safety
o Most jurisdictions have moved away from the zone of danger and have adopted a
modified version of the rule used in Dillon v. Legg. The original test was based on
foreseeability of injury and was considered too vague so it has been modified to be more
specific. Several factors need to be present to satisfy the Dillon rule (1) the plaintiff must
be closely related to the injury victim, closely related must be by blood or marriage (2)
the plaintiff must be present at the scene of the event when it happens and must know that
it caused injury to the victim (3) as result the plaintiff suffers from some emotional
distress that is beyond that expected by a disinterested bystander but not abnormal under
the circumstances
! Some jurisdictions require the Dillon factors to be met in addition to the
resulting physical injury requirement
D. UNBORN CHILDREN
- Wrongful death: wrongful death statutes are meant to correct the common law rule that when
someone dies their cause of action dies with them. In wrongful death suits, a representative for
the decedent is allowed to recover where the decedent would have had a cause of action against
the defendant had he lived
o Wrongful death suits are generally not allowed in the case of the wrongful death of an
unborn child. The idea is that the mother would be getting double damages because she
can sue for her own personal damages
o Some courts allow for wrongful death actions if the fetus was viable at the time of death
- Injuries caused before the fetus was viable or before conception
o When there is some foreseeable harm resulting from the doctors conduct you can find a
duty to the fetus
o The majority of jurisdictions will allow a cause of action for prenatal injuries inflicted on
a viable fetus that was born alive
- wrongful birth: suit brought by parents under the claim that negligent medical treatment
deprived them of the option to terminate the pregnancy to avoid the birth of a disabled child
o wrongful life: the analog to the wrongful birth suit, except this is brought by the child;
suit brought by the child to recover general damages for diminished childhood, pain, and
suffering, and special damages for medical care
! children will generally be allowed to recovery for their medical care and
treatment
- wrongful life claims are very rarely awarded for several reasons
o it is impossible to say that no life would have been better than an impaired life
o damages are almost impossible to assess
- from the perspective of the tort system, the goal of tort law is to restorative. You want to return
the plaintiff to the state he was in prior to the defendants negligent conduct. In wrongful life and
o

26

birth cases, you dont know what the plaintiffs other state would have been because it would
have been nonexistence.
Recovery for botched sterilization procedures: it is recognized that having children comes with
so many benefits that if someone has a sterilization surgery which results in a pregnancy they are
not allowed to recovery for financial losses. The only way this is allowed is if the reason for the
sterilization for financial.

Owners and Occupiers of Land (immunity from liability)

-

the liability limits put on landowners depend on whether the person is on the premise or off the
premise. If the person is on the premise the issue then becomes what class of person they
belonged to. Are they a trespasser (child or adult), a licensee, and is the danger manmade or
natural?
A. ON THE PREMISES
- At common law, three rigid categories were established to aid in determining the extent of ones duty of
care owed to certain individuals: trespasser, licensee, invitee
a. TRESPASSERS (one who has no right whatsoever to be on the land)
- With regard to a trespasser who is undiscovered and unanticipated, a landowner has no duty to
exercise reasonable care, or to make the land safe or warn of potential dangers on it
o The duty of care for the trespassers safety lies with the trespasser as his dangers has
arisen from his own actions
- The courts do not really favor immunity toward trespassers so they have created the rule that the
owners duty to the trespasser is to refrain from willful or wanton conduct. In both situations
that can arise, the owner owes the trespasser a duty to exercise reasonable care in active
operations and to warn trespassers of dangers that would not otherwise discover. he two
qualifications to this are:
o A landowner has a duty to the trespasser if his presence is known or should have been
known to the owner. (If you discover the trespasser you must take reasonable care once
you have discovered that the trespasser was on your land and in danger).
! Cases where the owner set traps specifically aimed at the trespasser have found
the owner liable for willfully and wantonly injuring the trespasser.
o Frequent trespassers: if there is a frequent trespasser on a limited area of land, the
owner is required to anticipate the trespasser and exercise reasonable care in his activities
to ensure their protection.
-

Reasons for non liability to trespassers: the trespassers presence on the land is not reasonably
to be anticipated; the trespasser assumes the risk when he trespasses; the trespasser is
contributorily negligent or is himself a wrongdoer not entitled to legal protection.
Tolerated intruders: where the owner tolerates intruders, his tolerance of their presence amounts
to permission to use the land making the trespasser a licensee. However, the failure to take
measures to guard against trespasser does not in and of itself constitute consent to the presence of
trespassers.
b. LICENSEES
A licensee is someone who comes onto the land with permission or pursuant to privilege. A
licensee is not there for business and it not a member of a class to which to owner holds the
premises open the public for. Social visitors are always classified as licensees. The category is
extended to non paying members of the possessors household, and persons present for their own
business purposes.
o Must generally take the premises of his host as he finds them.
Licensees are classified as such because they have the landowners permission to be on the land
(owner has consented to their presence). Failure of the owner to object to the persons presence is

27

not always considered consent and depends on the circumstances (for example: does he know the
person is likely to enter, does he have reason to believe his objection would be effective, would
he be required to undertake extensive measures to keep the person off his land)
- Duty to licensee: a landowner has not duty to inspect his property for dangers to the licensee or
make the land safe. However, if a landowner knows of a danger that the licensee may encounter
but is not likely to discover during his visit the landowner has a duty to warn the licensee. The
restatement expands this duty to unsafe conditions that the owner had reason to know about.
o Owners owe a duty to exercise reasonable care in active operations if the licensees
presence is known or reasonably anticipated.
c. INVITEES
- An invitee is someone expressly or impliedly invited onto the premise of another in direct or
indirect connection with the business interest of the owner or is one who enters on land that is
generally open to the public.
o The important thing in the case of the invitee is that he has been invited on the land. The
owner has to desire the persons presence. With usually come along with some
encouragement or inducement to get the person to come onto the property.
- The scope of the duty owed by an occupant to an invitee is one of reasonable care in all
circumstances. Even if the danger is known the invitee the owner may still be found negligent if it
is not too difficult for him to eliminate and he should have reasonably anticipated that the invitee
might be injured by it.
o In cases of natural hazards many jurisdictions hold that the owner does not have a duty to
the invitee.
- Scope of the invitation: once an invitee has left the scope of their invitation they become
licensees (ex. Whelan v. Van Natta: guy was in a shop. Went into the back room and fell down a
stairwell. He had been given permission to go back but had not been encouraged or induced so
he was a licensee and no duty was owed)
- Liability for criminal actions of third parties on the premise: owners can be liable for harm to
plaintiffs that occur as a result of criminal actions by third parties if (1) the invitor failed to take
reasonable measures to reduce the likelihood of dangerous criminal activity posing a danger to
the invitee (duty in this case has to do with the likelihood of risk versus the feasibility of
protecting against the risk; past experience with crime on the premises may require measures to
protect entrants) (2) the invitors actions in face of crime may negligently endanger the invitee
B. PERSONS OUTSIDE OF THE ESTABLISHED CATEGORIES
a. CHILDREN
- Courts generally dont apply the same limited duty afforded to adult trespassers to child
trespassers. Most jurisdictions impose a duty to exercise a higher standard of care when it comes
to child trespassers.
- Attractive Nuisance Doctrine: when a landowner sets before a young child a temptation that he
has reason to believe will lead them into danger he must use ordinary care to protect the children
from that harm. The original idea was that the nuisance had to be attractive to children and lure
them to the location
o Under the restatement, the danger need not lure children to the location. Instead it says
that a landowner is liable for harm to children trespassing on his land caused by some
artificial condition if the place where the condition exists is one where the owner knows
or should know children are likely to appear, the condition is one which the owner knows
or has reason to known and realizes or should realize will involve an unreasonable risk of
death or serious bodily harm to such children, the children in their youth do not discover
the condition or realize the risk involved in meddling with it or coming within the area
made dangerous by it, the utility of maintaining the condition an the burden of
eliminating it are slight compared to the risk to the children, the owner did not take
reasonable care to eliminate the danger or otherwise to protect the children.

28

Children Licensees: there may be an obligation to inform a child licensee about a risk when
there would be no duty with regard to an adult. If the child is very young, a court may deem a
warning insufficient protection in a context when it would be sufficient if the victim were an
adult.
b. PERSONS PRIVILEGED TO ENTER IRRESPECTIVE OF THE LANDOWNERS CONSENT
- Public officers and employees do not fit into either of the categories established traditionally.
They do not come for any purpose for which the premise is open to the public, they usually do not
enter for the benefit of the landowner, or under circumstances that would justify any expectation
that the premise has been prepared to receive them
- Figuring out how to deal with these parties has been difficult. At least five different things have
generally been done with them (1) classified as licensees (2) classified as an invitee (3) held as
entitled to the duty owed to licensees or invitees depending on the highest duty which the
landowner already owed to some other person at that place and time (4) given a separate
classification with a special duty owed to it (5) held entitled to reasonable care under all
circumstances
- Private persons: someone who comes on premises to for self protection or to aid someone may
be privileged as a matter of law to enter regardless of the landowners consent
C. REJECTION OR MERGING OF CATEGORIES
- Many jurisdictions have moved away from the old categories used to determine the duty of
landowners.
o Rowland v. Christian: landmark decision which stated that while a persons status as a
trespasser, invitee, of licensee might have some impact on determining liability, their
place in one of these categories is not determinative.
- The main argument for rejecting the old categories is that they do not take into consideration
factors that should be used to determine if a landowner is immune from liability. These factors
include: the closeness of the connection between the injury and the owners conduct, the moral
blame attached to the owners conduct, the policy of preventing future harm, and the prevalence
and availability of insurance.
- Some jurisdictions still apply the categories, while others have abolished the invitee/licensee
distinction, and others apply the standard negligence formulation

Defenses
A. CONTRIBUTORY NEGLIGENCE
- For contributory negligence, the plaintiffs negligence contributed to his resulting harm.
- How do you assess the plaintiffs negligence? You use the standard negligence formula.
o If the utility of the plaintiffs conduct was high enough then you could excuse his
negligence
- In contributory negligence, there is a difference between the negligence of the plaintiff and the
negligence of the defendant. For the defendant, the PL in the negligence formula is the risk he has
created to other people. However, for the plaintiff, the PL is his disregard of a foreseeable risk to
himself.
o Aside from this difference the basic cost/benefit analysis that goes into assessing
negligence is the same
- To establish contributory negligence, the plaintiff must not have only disregarded a foreseeable
risk to himself but he must have been a but for and proximate cause of his injury
- For contributory negligence you must prove all the same elements of negligence to show
that the plaintiff was negligent. The only difference is that the plaintiff has disregarded a
foreseeable harm to himself rather than to other.
- Contributory negligence is not a defense to an intentional tort and is also not a defense where the
defendant has engaged in wanton and willful, or reckless conduct. This conduct is viewed as

29

differing from negligence in degree and kind making contributory negligence inapplicable. It is
also not a defense to strict liability actions.
- Contributory negligence serves as a defense where the defendant was negligent per se.
- Sometimes statutes will bar the use of contributory negligence as a defense. This includes statutes
meant to protect the class of citizen the plaintiff is part of.
- There are four possible approaches to contributory negligence (1) ignore the plaintiffs claim (2)
ignore the plaintiffs share of the blame (3) adopt either 1 or 2 but with exceptions and (4)
compare the plaintiffs negligence to the defendants and reduce the plaintiffs damages
accordingly (this is comparative negligence and has been adopted by most states)
- Generally contributory negligence is an all or nothing defense unless the last clear chance
doctrine is applicable
o Last clear chance doctrine: in cases where the defendant had the last clear chance to
avoid danger and failed to do some the plaintiff may recover. Last clear chance is often
compared to superseding cause because the defendants failure to use the last clear
negligence supersedes the plaintiffs negligence. Last clear chance usually applied in
cases where the plaintiff was in helpless peril and the defendant was the only one who
could have prevented the accident and did not.
B. COMPARATIVE NEGLIGENCE
- Comparative negligence compares the plaintiffs negligence to the defendants and reduces the
plaintiffs negligence by the percentage of fault attributed to him. Does away with the all or
nothing approach taken by contributory negligence
- There are two types of comparative negligence:
o Pure: plaintiffs recovery is reduced by the percentage of fault attributed to him
regardless of how at fault he is.
o Modified: two ways of dealing with modified
! Not as great as: the plaintiffs recovery is reduced by the percentage of fault
attributable to him as long as his fault is not as great as the defendants. If the
plaintiffs fault is equal to or greater than the defendants the plaintiff is barred
completely from recovering. (50/50 = no recovery)
! Not greater than: the plaintiffs recovery is reduced by the percentage of fault
attributable to his as long as his fault is not greater than the defendants. If the
plaintiffs fault is greater than the defendants then he is barred from recovery.
(50/50 = recovery)
The only time these two yield different results is in the case where
both parties are liable for 50% of the fault. In the 50/50 split, not as
great would bar recovery but not greater than would allow
recovery.
- Note: some jurisdictions will either compare the plaintiffs fault to that of each defendant
individually or will compare it to the total negligence of the defendants (combine the fault of the
defendants). Most use the combined approach.

30

Apportioning fault and calculating recovery with comparative negligence:

True joint torfeasors: agree to engage in tortious conduct.
- More common is where the conduct of two or more unrelated people join to injure the plaintiff.
These individuals are joint tortfeasors.
o Where there are joint tortfeasors the usual rule is that each is liable to the plaintiff for her
full damages because each is a but for cause of the injury.
o Defendants are jointly and severally liable when their actions result in the same injury
(the fault of the defendants in the suit must add up to 100%). This does not apply if they
caused distinct and separate damages.
Contribution
- Joint and several liability can lead to unfair results where the plaintiff only sues one of the
defendants. Even if the plaintiff sued both he could choose to collect judgment from only one
defendant because in joint and several liability a total judgment is entered against both
defendants.
o Traditionally the defendant made to pay had no right to make the other contribute to the
judgment. Many states have now adopted a right to contribution.
- Contribution: When two or more persons are jointly and severally liable for the same injury
there is a right of contribution between them. The right exists only in favor to the tortfeasor who
has paid more than his fair share of the liability. His recovery from the other defendant is only for
the amount in excess.
Contribution and Settlements
- Its not unusual for a plaintiff to settle with one defendant and go to trial with the other.
- If you settle with one tortfeasor it does not release the other from liability but reduces the
plaintiffs claim against the others by the amount of the settlement. Settlement discharges the
settled party from a liability for contribution.
o Why allow this? When you settle you are buying your peace and extinguishing liability.
The other party is also free to settle and should be encouraged to do so by the possibility
of paying an outsized share. The settling party may end up settling for more than his
portion of the fault.
- There are two ways of dealing with settlements in trial
o Reduce the plaintiffs recovery by the $ amount he got in settlement
$10,000 claim
1: 50%
2: 50%
settles with 1 for $1,000 but he is liable for of the fault. You can only subtract the
$1,000 from the damages and 2 $9,000.
Reduce the plaintiffs recovery by the % of the damages the settling party was liable
for
: $10,000 claim
1: 50%
2: 50%
settles with 1 for $1,000 but he is liable for of the fault. You subtract $5,000 from the
damages and only end up recovering $6,000 of the $10,000 claim
Option 2 is popular under comparative negligence.
o

What if the settling tortfeasor finds out that he settled for more than his fair share of the fault
(since fault is apportioned at trial)? There is no right to contribution against the other defendant
once you have settled.

31

Comparative Negligence and Joint and Several Liability*

* in joint and several liability jurisdictions fault must add up to 100% and you cannot apportion fault
to a party that is not joined in the lawsuit (no phantom fault). The burden of insolvency falls on the
solvent defendant.
- Each defendant should have to pay in proportion to their share of the fault.
- In comparative negligence since you usually cant divide everything up equally you have to
apportion fault based on how much at fault each party was.
Example: 3 parties & $100,000 claim
: 20%
you subtract s 20% and end up with $80,000. So 1 is liable for 7/8 ($70,000) and
1: 70%
2 for 1/8 ($10,000)
2: 10%
Impact of Settlement in Comparative Negligence
- the logical practice is to give % credit for settlement
Example: 3 parties & $100,000 claim
: 20%
1: 70%
2: 10%
settles with 1 for $25,000 and takes 2 to court.
In a joint and several liability jurisdiction
And the use the $ amount to reduce the damages
Subtract s 20% is subtracted from the total giving a possible $80,000 recovery. Then subtract
settlement amount giving you $55,000. This is how much 2 would be responsible for paying.
Or applies settling partys % of the fault then (phantom fault; only time this is used in joint and
several liability)
Subtract s 20% is subtracted from the total giving a possible $80,000 recovery. Then subtract settling
partys percentage fault giving you amount leaving $10,000. This is how much 2 would be responsible
for paying.
Several Liability*
* In several liability jurisdictions fault can be apportioned to parties not joined in the lawsuit
(phantom fault). The burden of insolvency falls on the solvent plaintiff.
- If you take the several liability approach it reduces the need for contribution. Make each person
responsible for their portion of the damages.
o The problem with this is that it puts the burden of insolvency on the plaintiff because
there is no contribution. The plaintiff will only recover the % apportioned to the solvent
defendant.
Allocating uncollected shares in cases of insolvency (several liability)
- In some jurisdictions the uncollected share is reallocated between the plaintiff and the solvent
defendant.
Example:
: 20% $20,000
1: 70% $70,000 (insolvent)
2: 10% $10,000
(20/30) x $70,000 You add these amounts to the portion of the damages they are already responsible
2 (10/30) x $70,000 for and subtract it from the total.

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C. ASSUMPTION OF RISK
- Used to be interpreted more broadly than it is now. It used to be much easier for defendants to use
it as a defense, especially in cases where workers were brining suits against employers.
o Has especially narrowed the use of implied consent.
- Has roots in the idea that the individual is the master of his own fate and has the right to choose a
course of action and the responsibility to accept the consequences of those choices
- Basic idea behind assumption of risk: someone who is aware of a particular risk and knowingly
decides to take that risk has accepted the responsibility for the consequences of the decision and
cannot hold the defendant that created the risk liable for any injury
o The plaintiffs knowing choice to take the risk relieves the defendant of liability even if
he negligently created the risk that caused the plaintiffs injury
- Assumption of risk is often used along with contributory negligence. If you cant show that the
plaintiff assumed the risk, you can usually show that they were contributorily negligent.
- Assumption of risk is the negligence defense analog to the defense of consent in intentional
torts
- There are two types of assumption of risk:
- Express Assumption of Risk
o In these cases there has been some express agreement, usually constitutes a contract,
that the plaintiff will not hold the defendant liable for his injuries
! Courts will uphold these express agreements even if the defendant negligently
caused the risk
o While express assumption of risk is generally upheld, there are some things that need to
be qualified first:
! the consent must be given freely: consent obtained from someone who has little
bargaining power is not consistent with the notions of free choice that assumption
of risk was established on
included in this are cases where the plaintiff has no other choice but to
use the defendants services; in employment relationships, the inequality
inherent in bargaining power bars express assumption of risk
! must clearly consent to accept the particular risk that led to his injury
for example: a contract saying plaintiff waives all claims for person
injury would be invalid
contracts assuming risk are generally drafter by the party providing the
service so in court it is construed against that party and has to be clear in
stating the risk
will not extend to collateral risks beyond plaintiffs contemplation
o when a defendant claims that a plaintiff has expressly assumed a risk, the court must look
at (1) whether the risk was within the unambiguous terms of the agreement and (2)
whether the agreement itself violates public policy (three factors to look at: whether the
party causing the harm intentionally causes harm or acts recklessly, wantonly, or grossly;
whether the bargaining power of one party to the contract is grossly unequal as to put the
other party at the mercy of the others negligence (3) when the transaction involves the
public interest (is the service provided on of importance to the public?)
- Implied Assumption of Risk
o Primary: the plaintiff can accept a risk by engaging in an activity that entails inherent
risks
! Some activities involve risk of injury even when done with due care. In these
cases, the plaintiff assumes the risk of the inherent dangers.
Plaintiff has accepted an offer from the defendant to engage in an activity
which he is under no obligation to attempt.

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Courts honor this choice by holding that the plaintiff has no claim for injury. In
these cases the defendant has not been negligent and there was not duty breached.
o Secondary: based on the plaintiffs consent not fault. Plaintiff encounters risks created
by the defendants negligent conduct. Defendant has breached the standard of care by
creating an unreasonable risk. (traditionally an affirmative defense)
! if the negligence injured the plaintiff before he discovered the risk then the
defendant is liable
! If the plaintiff became aware of the risk unreasonably created by the defendant
and chose to encounter it (voluntarily assumes the risk), and is injured, the
plaintiffs choice is secondary to the defendants negligence and the defendant is
not liable.
In secondary assumption of the risk, the plaintiff can act reasonably or unreasonably. Either way
the plaintiff is barred from recovery.
o Where the decision was unreasonable, assumption of the risk overlapped with
contributory negligence and either defense could bar recovery (qualified)
o Where the decision was reasonable assumption of the risk was the proper defense to bar
recovery (pure)
Assumption of Risk and Comparative Negligence:
o Comparative negligence raises issues about the need for secondary assumption of risk.
! Suppose a plaintiff unreasonably but knowingly assumes a risk. Isnt he
comparatively negligent?
If you use assumption of risk, the plaintiff is barred from recovering but
it you apply comparative negligence his recovery is decreased in
proportion to his fault.
o Most jurisdictions treat secondary assumption of risk as a negligence case and apply
comparative negligence.
o Where the plaintiff has acted reasonably comparative negligence jurisdictions will allow
them to recover because they have not behaved negligently. However, some jurisdictions
still use this as a complete bar on recovery.
! Argument for barring recovery is the idea that in cases of true consent where the
plaintiff wants to encounter a risk because he thinks it is in his best interest he
ought to be allowed to do so and the defendant should not be liable.

Strict Liability
-

The defendant must pay damages to the plaintiff even though he acted neither intentionally no
violated the reasonable standard or care (was not negligent)
- Think of it as society placing such a heavy burden duty on the actor that he will be liable
regardless of the standard of care he uses. The actor is liable simply for having engaged in the
conduct.
- Strict liability is not based on fault but is based on the idea that accident losses stemming from
the activity should be placed on the actor rather than the victims
o Defendant acts at his own peril by engaging in the activity
- Policy idea is that we want to impose strict liability on those who impose grave and unusual risks
on the community
A. ANIMALS
- Care and maintenance of certain animals in certain situations can impose strict liability on those
who keep, harbor, or possess the animal, not just one who owns it.
- Trespassing animals: owner is responsible for their animals trespassing on someone elses land.
Owner of animals likely to roam and do damage strict liability is imposed on their owners.

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Animals are limited to those of the barnyard variety. Household animals like dogs and
cats are not included. Idea is that it is hard to confine them.
o Exception is if the animal wandered from a road on which they were lawfully being
driven exception was only for land close to the road.
- Four different possible rules in the US & which is used depends on the regional customs: (1)
strict liability (2) fencing in (plaintiffs land is fenced and animals break through) (3) fencing out
(animals are fenced or restrained and break free) (4) no liability without fault
- Wild animals: if you keep wild animals it is strict liability if they injure someone
o with domesticated animals you are only liable if you knew or had reason to believe the
animal was dangerous
- Domesticated animals: if the owner knows or has reason to know their animal is vicious then it
is strict liability if it harms someone.
o You must ask does the animal have a dangerous propensity abnormal to its class.
! If you cant prove this you must be negligent to recover
o This is usually with regard to dogs. Most states currently have statue dealing with this.
B. ABNORMALLY DANGEROUS ACTIVITIES
- There are six factors that must be considered in determining if something is inherently dangerous
and will impose strict liability on the actor.
o Existence of high degree of harm to person, land, or chattel of others
o Likelihood that the harm that results from it will be great
o Inability to eliminate the risk by the exercise of reasonable care
o Extent to which the activity is not a matter of common usage
o Inappropriateness of the activity to the place where it is carried on
o Extent to which its value to the community is outweighed by its dangerous attributes
- These factors attempt to govern accidents that negligently liability cannot adequately control
- The greater the risk that there will be an accident and the greater the cost is an accident occurs the
more you want the defendant to consider the possibility of making changes (more reason for strict
liability)
- If the activity is common and is unlikely that its hazards are perceived as great or that no
technology or care is available to limit it the case for strict liability is diminished
o

C. LIMITATIONS ON LIABILITY

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