Area of Torts

Basis of Liability

Sub Area
General Principle

Vicarious Liability Employer Liability

Rule of Law
Loss from accident must lie where it falls, and this principle is not affected by the fact that a
human being is the instrument of misfortune
Respondeat Superior: employers are vicariously liable for torts committed by employees
while acting within the scope of their employment (strict liability for the negligence of
employees)
Three part test (Birkner test):
1) employee's conduct must be of the general kind he is hired to perform
2) employee's conduct must occur substantially within hours and spatial boundaries of
employment
3) employee's conduct must be motivated by the purpose of serving employer's interest

Vicarious Liability Liability through Agency A principal may be liable to a third party for acts of its agent which are within the agent's
apparent authority. Apparent authority is authority which a principal knowingly tolerates or
permits, or which the principal by its actions or words holds the agent out as possessing
Negligence

General Principle

Negligence is the failure in using due care and all proper precautions necessary to the
exigency of the case, to avoid hurt to others.

Negligence: Duty Standard of Care

The duty of care owed is to adopt all reasonable precautions to minimize the resulting
perils.
Chance of harm, though remote, may betoken negligence, if needless. Facility of protection
may impose a duty to protect

Negligence: Duty Standard of Care

Liability depends upon whether the Burden is less than the Loss multiplied by the
Potential for loss (B<L*P) Learned Hand Formula
Duty upon common carriers: exercise of the utmost care, so far as human skill and foresight
can go (less applicale now, but the industry still informs the type of duty owed; this is more
of a duty in fact, while the common carrier rule was a duty in law)

Negligence: Duty Reasonable Person

Negligence Standard: Reasonable care under the circumstances

Area of Torts
Sub Area
Negligence: Duty Reasonable Person

Rule of Law
The reasonable person standard provides sufficient flexibility and leeway to permit due
allowance to be made for all of the particular circumstances of the case which may
reasonably affect the conduct required

Negligence: Duty Roles of Judge/Jury

Generally, the question of due care is left to the jury

If the jury verdict be deemed by the appellate court to be against the weight of the vidence,
that court's power is limited to ordering a new trial

Negligence: Duty Role of Custom

When certain dangers have been removed by a customary way of doing things safely, this
custom may be proved to demonstrate the standard of care.
Customary practice and usage need not be universal; it suffices that it be fairly well defined
and in the same calling or business

Negligence: Duty Role of Statutes

Omission of the statutory signals is more than some evidence of negligence, it is negligence
in itself
Lack of a license is irrelevant to a tort claim (p.83n9)

Negligence: Duty Notice

To constitute constructive notice, a defect must be visible and apparent and it must exist for
a sufficient length of time prior to the accident to permit defendant to discover and remedy
it

Area of Torts
Sub Area
Negligence: Duty Landowner & Occupier
Duty

Rule of Law
Possessor owes a trespasser no duty of care (Restatements 2nd 333, p.191n3)
Possessor owes a licensee the duty to make safe dangers of which the possessor is aware
Possessor owes invitees the duty to exercise reasonable care to protect them against both
known dangers and those that would be revealed by inspection. (Restatements 2nd 342,
p.192n5). An entrant becomes an invitee whent he possessor invites with the expectation of
a material benefit from the visit OR extends the invitation to the public generally
(Restatements 2nd 332, p.189)
Landlord/Tenant: landlord liable in tort only if the injury is attributable to 1) a hidden danger
that landlord knew, 2) leased for public use, 3) retained under landlord control, 4)
negligently repaired by landlord

Negligence: Duty Landowner: Business

Duty

Business owners have a duty to take reasonable precautions to protect invitees from
foreseeable criminal attacks
Tests to determine foreseeability:
1) Specific harm rule--most restrictive, least liability to business owner
2) Prior similar incidents test--previous crimes on or near the property
3) Totality of circumstances--like 2), but adds nature, condition, location of land and other
relevant factual circumstances. Does not require a prior
4) Balancing test--balances foreseeability of harm with burden to protect against criminal
acts of third persons

Negligence: Duty Policy Basis for No Duty Recovery is limited to a known group possessed of vested rights, marked by a definable
limit and made up of certain components
Implications of social host liability are wide sweeping and unpredictable in natureand
would touch most adults on a frequent basis
Designated driver duty to third persons: the duty only arises if performance begins--a
broken promise is not a basis for a duty (p.181n7)

Area of Torts
Negligence:
Breach

Sub Area
Res Ipsa Loquitur

Rule of Law
Doctrine: in rare instances an injury may permit an inference of negligence if coupled with a
sufficient showing of its immediate, precipitating cause. Three conditions:
1) the accident must be of a kind which ordinarily does not occur in the absence of
someone's negligence
2) it must be caused by an agency or instrumentality within the exclusive control of the
defendant
3) it must not have been due to any voluntary action or contribution on the part of the
plaintiff
All that is required is evidence from which reasonable persons can say that on a whole it is
more likely that there was negligence than that there was not
The number or relationship of the defendants alone does not determine whether res ipsa
loquitur applies. Every defendant in whose custody the plaintiff was placed for any period
was bound to exercise ordinary care and would be liable for failure thereof

Negligence:
Breach

Medical Malpractice

In medical malpractice, the specialized knowledge and skill of the defendant must be taken
into account
Board certification represents a national standard of care which is uniform throughout the
medical specialty
Testifying experts must have knowledge, skill, experience, training or education in the field
of alleged malpractice
In medical malpractice, expert testimony is an essential requirement in proving the
standard of care

Negligence:
Breach

Medical Malpractice

When a physician treats or diagnoses a patient, he is under a duty to exercise the same
degree of diligence and skill which is commonly possessed by other members of the
profession engaged in the same type of practice
Similar localities rule: above applied within similar localities (old rule)
National Standard: new rule, uniform standard of care across the nation

Area of Torts
Negligence:
Breach

Sub Area
Medical Malpractice

Rule of Law
A plaintiff in a medical malpractice case can proceed on a res ipsa loquitur theory where the
plaintiff offers a medical expert's opinion that the injury would not have occurred in the
absence of negligence by the defendant

Negligence:
Breach

Medical Malpractice:
Informed consent

Doctrine of Informed Consent: requires a physician to obtain the patient's consent before
implmenting a course of treatment
Physicians have a duty to evaluate the relevant information and disclose all courses of
treatment that are medically reasonable under the circumstances; ultimate decision is for
the patient
Physicians do not adequately discharge their responsibility by disclosing only treatment
alternatives that they recommend
For consent to be informed, the patient must know not only of alternatives that the
physician recommends, but of medically reasonable alternatives that the physician does not
recommend
Informed consent requires material risks inherent in a procedure or course of treatment.
Test for materiality is whether a reasonable patient int he patient's position would have
considered the risk material
Consumer Protection Act is broad enough to cover services provided by a doctor to a
patient--applies to misrepresentations (Williamson v. Amrani, KS Supreme, 2007; p.125n6)

Area of Torts
Negligence:
Breach

Sub Area
Duty to Act

Rule of Law
An affirmative duty to act only arises when a special relationship exists between the parties
Special relationships normally giving rise:
1) common carries
2) innkeepers
3) possessors of land who hold it open to the public
4) persons who have custody of another person
(If the actor knows or has reason to know that by his conduct, whether tortious or innocent,
he has caused such bodily harm to another as to make him helpless and in danger of
further harm, the actor is under a duty to exercise reasonable care to prevent such future
harm. Restatement 2nd 322)
Actual knowledge of a dangerous condition tends to impose a special duty to do something
about that condition

Negligence:
Breach

Duty to Act: Common

Undertaking

If the actor attempts to aid, and takes charge and control of the situation, he is regarded as
entering voluntarily into a relation which is attended with responsibility and is therefore
liable for a failure to use reasonable care to protect the other
Must exercise reasonable care in discontinuing aid for someone who reasonably appears to
be in imminent peril (Restatement 3rd 43)

Area of Torts
Negligence:
Breach

Sub Area
Duty to Act:
Misrepresentation &
Third Party

Rule of Law
One who negligently gives false information to another is subject to liability for physical
harm caused by action taken by the other in reasonable reliance upon such information,
where such harm results:
1) to the other, or
2) to such third persons as the actor should reasonable expect to be put in peril by the
action taken
Such negligence may consist of failure to exercise reasonable care:
1) in ascertaining the accuracy of the information or
2) in the manner in which it is communicated
Major considerations are:
-Foreseeability of harm to the plaintiff
-Degree of certainty that plaintiff suffered an injury
-Closeness of the connection between the defendant's conduct and the injury suffered
-Moral blame attached to the defendant's conduct
-Policy of preventing future harm
-Extent of the burden to the defendant and consequences to the community of imposing a
duty with resulting liability
-Availiability, cost, and prevalance of insurance for the risk involved

Negligence:
Breach

Duty to Act: Third Party / A duty of care is owed to all persons who are foreseeably endangered by his conduct, whith
Doctor-Patient
respect to all risks which make the conduct unreasonably dangerous
Restatement 2nd 315: A duty of care may arise from either:
1) aspecial relation between the actor and the third person which imposes a duty on the
actor to control the third persons conduct or
2) a special relationship between the actor and the other which gives to the other a right of
protection
A physician may not reveal the confidence entrusted to him in the course of medical
attendance unless he is required to do so by law or unless it becomes necessary in order to
protect the welfare of the individual or the community (Principles of Medical Ethics of the
AMA, p.155)

Area of Torts
Negligence:
Breach

Sub Area
Private Enforcement of
Statury Requirements

Rule of Law
A statutory command does not necessary carry with it a right of public enforcement
To determine if a statute carries a right of public enforcement, courts ask:
1) whether the plaintiff is one of the class for whose particular benefit the statute was
enacted
2) whether recognition of a private right of action would promote the legislative purpose,
and
3) whether creation of such a right would be consisten with the legislative scheme

Negligence:
Breach

Negligent Entrustment

One who supplies directly or through a third person a chattel for the use of another whom
the supplier knows or has reason to know to be likely because of his youth, inexperience, or
otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and
others whom the supplier should expect to share in or be endangered by its use, is subject
to liability for physical harm resulting to them (Restatements 390)

Causation

Cause in fact

If X had not occurred, Y would not have occurred

If two or more possible causes exist, for only one of which a defendant may be liable, and a
party injured establishes facts from which it can be said with reasonable certainty that the
direct cause of the injury was the one for which the defendant was liable, the party has met
the required burden of proof

Area of Torts
Causation

Sub Area
Joint and Several

Rule of Law
Several rules:
1) Standard joint and several--all liable for whole amount
2) ~12 states hold a solvent defendant responsible only for his percentage of fault share of
damages
3) ~12 states only allow when defendant is greater than a specified threshold percentage at
fault (usually 50%)
4) Some states (including CA) retain J&S but abolished for non-economic damages
5) Some states allow J&S except when the plaintiff is partially at fault
6) Some retain J&S but reallocate share of insolvent defendants amongst other defendants
7) Some states abolished in many areas while retaining for some other areas (NY retains for
motor vehicle cases, recklessness, and enviro)
Where a group of persons are hunting or otherwise using firearms, and two of them are
negligent in firing in the direction of a third person who is injured thereby, both of those so
firing are liable for the injury suffered by the third
If plaintiff cannot show precide damages attributable to defendant's negligence, a rough
apportionment may be used (p.371n8)

Causation

Market Share

When a particular defendant cannot be identified: Apportioning liability based on market

share will result in liability on the part of a defendant roughly equal to the injuries the
defendant actually caused
Joint and several liability attaches to all defendant's unable to exculpate themselves
(DISSENT ONLY)

Area of Torts
Causation

Sub Area
Proximate Cause

Rule of Law
Eggshell Plaintiff: the defendant takes the plaintiff as he finds him, even if that means
defendant must compensate for harm an ordinary person would not have suffered
Thin-skull Plaintiff: claims for emotional distress must be such that it would cause distress to
the ordinarily sensitive person, however, damages that are greater than foreseeable
because of preexisting physical or mental conditions may be recovered in full (p.398n6;
Restatements 3rd 31)
A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may
be liable in damages for the full disability
Consequences which follow in unbroken sequence, without an intervening efficient cause,
from the original negligent act, are natural and proximate; and for such consequences the
original wrongdoer is responsible, even though he could not have foreseen the particular
results which did follow (Christensen v. Chicago, MN Supreme, 1896, p.395)
Precipitating Factor: a defendant is liable when he causes a precipitating factor which
activates the plaintiff's predisposition. The existence of the predisposition may affect
damages (Steinhauser v. Hertz, USCA 2nd, 1970; p.396n3)
The consequences which may reasonably be expected to result from a particular act are
material only in reference to the question whether the act is or is not a negligent act
(Polemis)

Causation

Superseding Causes

A negligent defendant, whose conduct creates or increases the risk of a particular harm and
is a substantial factor in causing that harm, is not relieved from liability by the intervention
of another person EXCEPT where the harm is intentionally caused by the third person AND is
not within the scope of the risk created by the defendant's conduct (Restatements 2nd
442B)
To be within the scope of risk, the harm actually suffered must be of the same general type
as that which makes the defendant's conduct negligent in the first instance

Area of Torts
Causation

Sub Area
Unexpected Victim

Rule of Law
The risk reasonably to be preceived defines the duty to be obeyed, and risk imports
relation; it is risk to another or to others wihin the range of apprehension. This does not
mean that one who launches a destructive force is always releived of liability if the force,
though known to be destructive, pursues an unexpected path

Defenses

Contributory Negligence Plaintiff's negligence must be an actual and proximate cause of the plaintiff's harm; if so,
then contributory negligence bars recovery

Defenses

Comparative Negligence A negligent plaintiff's recovery depends on how serious the plaintiff's negligence was
compared to defendant's
Any contributory fault chargeable to the claimant diminishes proportionately the amount
awarded as compensatory damages for an injury attributable to the claimant's contributory
fault, but does not bar recovery

Area of Torts
Defenses

Sub Area
Assumption of Risk:
Express

Rule of Law
The law does not favor contract provisions which relieve a person from his own negligence
A party cannot be released from liability for injuries resulting from its future negligence in
the absence of language that expressly so provides
Exculpatory agreements violate public policy if they affect the public interest adversely
(Tunkl Test). Factors relevant:
1) the agreement concerns a business of a type generally thought suitable for public
regulation
2) the party seeking exculpation is engaged in performing a service of great importance to
the public, which is often a matter of practical necessity for some members of the public
3) the party holds himself out as willing to perform this service for any member of the
public who seeks it (at least within certain standards)
4) As a result of the essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of bragaining
strength against any member of the public seeking to use the service
5) In exercising a superior bargaining pwer the party confronts the public with a
standardized adhesion contract of exculpation and makes no provision where a purchaser
may pay additional reasonable fees and obtain protection from negligence
6) as a result of the transaction, the person or property of the purchaser is placed under the
control of the seller, subject to the risk of carelessness by the seller or his agents

Defenses

Assumption of Risk:
Implied

Volenti non fit injuria: One who takes part in such a sport accepts the dangers that inhere in
it so far as they are obvious and necessary
Participants: To detemine negligence in a sport, consider such material factors as the sport
involved, the rules and regulations of the sport, the generally accepted customs and
practices of the sport (including types of contact and level of violence), the risks inherent in
the game and those that are outside the realm of anticipation, the presence of protective
equipment, and the specific facts of the case including the ages, skill, knowledge of the
game and physical attributes of the participants (p.473n5)
Spectators: provide as much protection for as many spectators as may reasonably be
expected to desire such (p.474n6)

Area of Torts
Strict Liability

Sub Area
General Principle

Rule of Law
The person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril. If it does escape and
cause damage, he is responsible, however careful he may have been, and whatever
precautions he may have taken to prevent the damage

Strict Liability

Abnormally Dangerous

When the damage was the necessary consequence of just what the defendant was doing,
and it was just as much liable as if it had done the deed by any other means
One who carries on an abnormally dangerous activity is subject to liability for harm resulting
from the activity although he has exercised the utmost care to prevent the harm
(Restatements 2nd 519)
In determining whether an activity is abnormally dangerous, consider six factors
(Restatements 2nd 520):
1) existence of a high degree of risk of some harm to the person, land or chattels of others
2) likelihood that the harm that results from it will be great
3) inability to eliminate the risk by the exercise of reasonable care
4) extent to which the activity is not a matter of common usage
5) inappropriateness of the activity to the place where it is carried on
6) extent to which its value to the community is outweighed by its dangerous attributes

Strict Liability

Abnormally Dangerous
(when negligence
applies)

When it is a workable regime because the hazards of an activity can be avoided by being
careful, there is no need to switch to strict liability
Accidents that are due to a lack of care can be prevented by taking care, and when a lack of
care can be shown in court, such accidents are adequately deterred by the threat of liability
for negligence

Area of Torts
Strict Liability

Sub Area
Products Liability:
Manufacturing Defects

Rule of Law
If the nature of a thing is such that it is reasonably certain to place life and limb in peril
when negligently made, and if there is knowledge that the thing will be used by persons
other than the purchaser and used without new tests, then irrespective of contract, the
manufacturer of this thing is under a duty to make it carefully
The retailer, even though not equipped to test a product, is under a strict liability to his
customer for the implied warranties of fitness for proposed use and mechantable quality
include a warranty of safety of the product
One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer or his property if (Restatements 2nd 402A):
1) the seller is engaged in the business of selling such a product AND
2) it is expected to and does reach the consumer without substantial change in the
condition in which it is sold
-the above rule applies regardless of care by the seller or privity of contract

Strict Liability

Products Liability:
Design Defects

A product may be found defective in design if the plaintiff demonstrates that the product
failed to perform as safely as an ordinary consumer would expect when used in an intended
or reasonably foreseeable manner
Alternatively, a design defect could be shown if through hindsight the jury determines that
the product's design embodies excessive preventable danger (aka: if the danger inherent in
the challenged design outweighs the benefits of such design). The jury considers: gravity of
the danger, likelihood of such danger occurring, mechanical feasibility of safer alternative,
cost of an improved design, adverse consequences that would result from an alternative
design

Area of Torts
Strict Liability

Sub Area
Rule of Law
Products Liability: Safety A warning need only be one that is reasonable under the circumstances
Instructions
A reasonable warning conveys a fair indication of the dangers involved, but also warns with
the degree of intensity required by the risk. Factors to determine warning adequacy
(p.603n1):
1) warning adequately indicates scope of the danger
2) warning reasonably communicates the extent or seriousness of harm
3) physical aspects of the warning must alert a RPP to the danger
4) a simple directive warning may be inadequate when it fails to indicate the consequences
that might result from failure to follow it
5) the means to convey the warning must be adequate
Pictoral messages required if product likely to be used by non-English speakers

Strict Liability

Products Liability:
Defenses

A consumer has no duty to discover or guard against a product defect

A plaintiff's conduct should be considered to reduce a damages recovery if it fails to
conform to applicable standards of care (Restatements 3rd 17a)
Disclaimers and limitations of remedies, waivers, and contractual exculpations do not bar or
reduce otherwise valid products liability claims against sellers or other distributors of new
products for harm to persons (Products Liability Restatement 18, p.635)

Intentional Harm Trespass

An actionable invasions of the interest in exclusive possession of land, usually awards

money damages only
Trespass is any intrusion which invades the possessor's protected interest in exclusive
possession, whether that intrusion is by visible or invisible pieces of matter or by energy
Requisite intent is only to enter the land and does not require intent to harm the other's
interest in exclusive possession or even to invade another's property (p.675)

Area of Torts
Sub Area
Intentional Harm Nuisance

Rule of Law
An actionable invasion of the interest in the use and enjoyment of the land, usually awards
an injunction
Where a nuisance has been found and where there has been any substantial damage shown
by the party complaining an injunction will be granted (Boomer, p.685)
One is subject to liability for conduct that is a legal cause of an invasion of another's
interest in the private use and enjoyment of land if the invasion is either a) intentional and
unreasonable, or b) unintentional and arising out of negligent or reckless conduct or
abnormally dangerous conditions or activities (822)
An intentional invasion satisfies the unreasonableness requirement if a) the gravity of harm
outweighs the utility of the actor's conduct or b) the harm caused by the conduct is serious
and the financial burden of compensating for this and similar harm to others would not
make the continuation of the conduct not feasible (828)
Gravity of Harm: Factors involved (827): 1) extent of harm, 2) character of harm, 3) social
value of the type of use or enjoyment invaded, 4) suitability of the use or enjoyment
invaded to the locality, 5) burden on the person harmed of avoiding the harm
Utility of conduct: Factors involved (828): 1) social value of the primary purpose of the
conduct, 2) suitability of the conduct to the locality, 3) impracticability of preventing or
avoiding another invasion

Damages

Non-compensable harm Physiologic changes that cause no impairment is not compensable

Damages

Compensatory Damages The amount of damages is a question of fact. An appellate court can interfere on the ground
that the judgment is excssive only if it shocks the conscience
Pecuniary damages include past and future, and are generally easily calculable
Non-pecuniary damage include pain and suffering, humiliation, and anxiety (past and
future)

Area of Torts
Damages

Sub Area
Punitive Damages

Rule of Law
Punitive damages may be recovered where the defendant has been guilty of oppression,
fraud, or malice, express or implied
Punitive damages may be based upon the defendant's concious disregard of the safety of
others

Intentional Harm Intent

When a minor has committed a tort with force, he is liable to be proceeded against as any
other person would be
An actor who intentionally or recklessly causes physical harm is subject to liability for a
broader range of harms than the harms for which the actor would be liable if only acting
negligently (Restatements 3rd 33(b), p.902n6)

Area of Torts
Sub Area
Intentional Harm Assault and Battery

Rule of Law
An assault is a physical act of a threatening nature or an offer of corporal injury which puts
an individual in reasonable fear of imminent bodily harm It is the apprehension of injury
which renders the defendant's act compensable
Battery is an act that was intended to cause, and did cause, and offensive contact with or
unconsented touching of or trauma upon the body of another, thereby generally resulting in
the consummation of the assault. An intent to injure the plaintiff is unnecessary in a
situation in which a defendant willfully sets in motion a force that in its ordinary course
causes the injury.
Battery: Offensive Contact (Restatements 2nd 18, p.908), An actor is subject to liability to
another for battery if:
1) he acts intending to cause a harmful or offensive contact with the person of the other or
a third party, or an imminent apprehension of such contact and
2) an offensive contact with the person of the other directly or indirectly results
An act which is not done with the intention does not make the actor liable to the other for a
mere offensive contact with the other's person although the act involves an unreasonable
risk of such contact (then it would be negligent or reckless)
Offensive Contact (Restatements 2nd 19 p.909): a bodily contact is offensive if it offends a
reasonable sense of personal dignity

Area of Torts
Sub Area
Intentional Harm False Imprisonment

Rule of Law
False imprisonment is an unlawful restraint of an individual's personal liberty or freedom of
locomotion.
Imprisonment is any unlawful exercise or show of force by which a person is compelled to
remain where he does not wish to remain or to go where he does not wish to go.
In order for a false imprisonment to be present, there must be an actual or legal intent to
restrain
Confinement may be fulfilled by (Restatements 2nd 38-41, p.913):
1) actual or apparent physical barriers
2) overpowering physical force, or by submission to physical force
3) threats of physical force
4) other duress
5) asserted legal authority

Intentional Harm Intentional Infliction of

Emotional Distress

A cause of action is established when it is shown that one, in the absence of any privilege,
intentionally subjects another to the mental suffering incident to serious threats to his
physical well-being, whether or not the threats are made under such circumstances as to
constitute a technical assault (p.918)
One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily
harm to the other results from it, for such bodliy harm (Restatements 2nd 46)
Four elements to emotional distress unaccompanied by physical injury:
1) wrongdoer's conduct was intentional or reckless
2) the conduct was outrageous and intolerable in that it offends against the generally
accepted standards of decency and morality
3) There was a causal connection between the wrongdoer's conduct and the emotional
distress
4) the emotional distress was severe

Intentional Harm Defenses: Consent

One who sufficiently expressed his willingness to suffer a particular invasion has no right to
complaint if another acts upon his consent so given

Area of Torts
Sub Area
Intentional Harm Defenses: Self-Defense

Rule of Law
Where a defendant attempts to justify on a plea of self-defense, he must show not only that
he acted honestly in using force, but that his fears were reasonable under the
circumstances and also as to the reasonableness of the means made use of

Intentional Harm Defenses: Protection of

Property

In determining the reasonableness of force used to protect property, consider the following
(Posner, p.956n3):
1) value of property at stake measure against the costs of human life and limb
2) existence of an adequate legal remedy alternative to using force
3) location of the property in terms of diffiuclty of protecting by other means
4) kind of warning given
5) deadliness of the device used
6) character of the conflicting activities
7) cost of avoiding interference by other means

Intentional Harm Defenses: Necessity

Acts of god are not compensable; acts of people are compensable

Public necessity may require the taking of private property for public purposes, but
compensation must be made
A private mischief is to be endured rather than a public inconvenience (p.962n9)

Sources of Law
Hammontree v. Jenner, CA Appeals, 1971
(p.3)
Christensen v. Swenson, UT Supreme,
1994 (p.18)

Roessler v. Novak, FL Appeals, 2003

(p.24)

Brown v. Kendall, MA Supreme, 1850

(p.35)

Exceptions
All of tort law is an exception

Defenses

Independent Contractors
generally do not impose
vicarious liability

Employee was on a frolic of their own

Intentional torts, without employer
notice, will only attach liability to the
employee

Non-delegable duty: some

duties are too important and
cannot be delegated
if the injury was unavoidable and the
conduct of the defendant free from
blame, then there is no liability

Adams v. Bullock, NY Appeals, 1919 (p.39)

Braun v. Buffalo, NY Appeals, 1911 (p.41,
n2)
AW v. Lancaster School Dist., NE
Supreme, 2010 (p.211)
United States v. Carroll Towing Co,
USCA 2nd, 1947 (p.43)
Bethel v. NYC Transit Auth, NY Appeals,
1998 (p.49)
Andrews v. United Airlines, USCA 9th,
1994 (p.65)

Mental disability is no defense

(Vaughan, p.55n7)
Physical disability is only a defense if
the conduct in question was beyond the
defendant's control (Roberts, p.55n8)

Policy

Sources of Law
Restatements 2nd 283 comment c

Exceptions

Defenses
Policy
Emergency Doctrine: a person
confronting an emergency not of his or
her own making is required to exhibit
only an honest exercise of judgment
(Levey, p.59n12); NOT universally
adopted

Baltimore & Ohio Railroad v. Goodman, US When dealing with a standard

Supreme, 1927 (p.60)
of conduct, and when the
Pokora v. Wabash Railway, US Supreme,
standard is clear, it should be
1934 (p.62)
laid down once for all by the
Negri v. Stop and Shop, NY Appeals, 1985 courts
(p.86)
Trimarco v. Klein, NY Appeals, 1982 (p.68)

Common practice or usage is not

necessarily a conclusive or even a
compelling test of negligence--the jury
must be satisfied with its
reasonableness

Martin v. Herzog, NY Appeals, 1920 (p.74) Statutes are not an inflexible Violation of a statute does not establish
Tedla v. Ellman, NY Appeals, 1939 (p.77) command that the general rule liability if the statute is intended to
intended to prevent accidents protect against a particular hazard, and
must be followed even under a hazard of a different kind is the
conditions when observance
occasion of the injury (p.81n6)
might cause accidents

Negri v. Stop and Shop, NY Appeals, 1985

(p.86)
Gordon v. American Museum, NY Appeals,
1986 (p.86)

Business practice rule: a

customer need not establish
actual or constructive notice
when the business practice of
the merchant provided
continuous and foreseeable
risk (p.89n7)

Sources of Law
Carter v. Kinney, MO Supreme, 1995
(p.188)
Heins v. Webster County, NE Supreme,
1996 (p.194)

Exceptions
Exceptions for trespasser:
when persons constantly
intrude; reasonable care for
the safety of a known
trespasser

Defenses

Child trespassers: attractive

nuisance (p.193n8,
Restatements 2nd 339)
Some jurisdictions do not
distinguish between classes of
entrants and hold that the
duty is uniform

Posecai v. Wal-Mart, LA Supreme, 1999

(p.204)

Strauss v. Belle Realty, NY Appeals, 1985 Some "take home" asbestos

(p.168)
cases ie: NJ (p.174n7)
Reynolds v. Hicks, WA Supreme, 1998
(p.176)

"the more persons injured through a

tort-feasor's gross negligence, the less
the responsibility for injuries incurred"
(Dissent, p.172)
Same action has different liability
imposed based on who performed the
action (Dissent, p.179)

Policy
Policy for abolishing the
categories: an entrant's
status should not determine
the duty that the landowner
owes to him (Rowland v.
Christian, CA Supreme,
p.196 middle)

Sources of Law
Byrne v. Boadle, Exchequer, 1863 (p.90)
McDougald v. Perry, FL Supreme, 1998
(p.92)
Restatements 2nd 328D (p.94)

Exceptions

Robbins v. Footer, DC Cir, 1977 (p.106)

Sheeley v. Memorial Hosp., RI Supreme,
1998 (p.107)

Unless the lack of care is so

obvious as to be within the
layman's common knowledge

Sheeley v. Memorial Hosp., RI Supreme,

1998 (p.107)

Defenses

Policy
Res ipsa loquitur allowed
when there are several
possible people liable for
the negligence because, if
not, then a conspiracy of
silence would prevent
recovery and to achieve
equity courts would have to
invoke absolute liability

Sources of Law
Exceptions
Sides v. Anthony's Med. Ctr, MO Supreme,
2008 (p.115)
Restatement 2nd 328D comment d
Matthies v. Mastromonaco, NJ Supreme,
1999 (p.119)

No requirement to inform
about experimental
alternatives (Moore v. Baker,
USCA 11th, 1993; p.124n3)

Defenses
Policy
Rebut the inference with evidence that
defendant was not negligent

A competent adult may refuse lifesaving treatment. If, and only if, the
patient is unconscious or otherwise
incapable of giving consent, and either
time or circumstances do not permit the
Cannot misrepresent
physician to obtain the consent of a
experience and credentials
family member, may the physician
(Howard v. University, NJ
presume that the patient, if competent,
Supreme, 2002; p.125n5)
would consent to life-saving medical
treatment (Shine v. Vega, MA Supreme,
Not required to inform patients 1999; p.127n11)
of information not directly
related to procedure (Albany
Harm that was proximately caused by a
Clinic v. Cleveland, GA
medical professional's breach of duty in
Supreme, 2000; p.125n5)
a prolongation of life case was the
benefit of life, a harm which courts
have repeatedly refused to compensate
(Anderson v. St. Francis, OH Appeals,
1997; p.128n11)

Sources of Law
Harper v. Herman, MN Supreme, 1993
(p.131)

Farwell v. Keaton, MI Supreme, 1976

(p.136)

Exceptions

Defenses
Policy
There are many dangers, such as those
of fire and water which under ordinary
conditions may reasonably be expected
to be fully understood and appreciated
by any child (Resatement 2nd 339
comment f)

Usually a legal duty only attaches to

common undertakings when the
undertaking is hazardous and the
parties understand that each is
mutually dependant upon the other for
their own safety

Sources of Law
Randi v. Muroc JUSD, CA Supreme, 1997
(p.142)
Restatement 2nd 311

Tarasoff v. Regents of UC, CA Supreme,

1976 (p.151)
Restatement 2nd 315

Exceptions

Defenses
Full disclosure or no comment are
alternatives to avoid liability

Psychiatric predictions are unreliable

Policy

Sources of Law
Uhr v. East Greenbush Central School
District, NY Appeals, 1999 (p.161)

Exceptions

Defenses
No liability from voluntarily adopted
safety rules
Statutory limitations on liability:
medical and emergency personnel who
in good faith render emegency aid
without compensation may be shielded
from liability (p.167n10)

Vince v. Wilson, VT Supreme, 1989

(p.182)
Restatements 2nd 390

Stubbs v. City of Rochester, NY Appeals,

1919 (p.335)
Zuchowics v. United States, USCA 2nd,
1998 (p.343)

Two-disease rule (p.339n7a)

Substantial Factor test: when
two independent parties each
cause the full harm (Anderson
v. Minneapolis, MN Supreme,
1920; p.342n9)

Futile warning (Rinaldo, p.334)

Extraordinar circumstance (p.334)
Proof: cannot be left to jury speculation
(p.341n9)

Policy

Sources of Law
Summers v. Tice, CA Supreme, 1948
(p.367)

Exceptions

Defenses

Policy
Shifts the burden to the
defendants to figure out
who caused an injury OR
holds defendants liable J&S
because plaintiff couldn't
possibly determine which
caused the injury
Modern method allots
damages across the
defendants; may result in
less than full recovery-several liability

Hymowitz v. Eli Lilly, NY Appeals, 1989

(p.372)

Impossibility--if a defendant can prove

it was not a member of the market, that
defendant can be removed from liability

Sources of Law
Benn v. Thomas, IA Supreme, 1994
(p.394)

Exceptions

Defenses
A man must be considered to be
responsible for the probably
consequences of his act (Overseas)

Policy

Polemis, Court of Appeal, 1921 (p.399)

Overseas Tankship v. Mort's Dock, Privy
Council, 1961 (p.402)
Smith v. Leech Brain, 1962 (p.406n5)

Doe v. Manheimer, CT Supreme, 1989

(p.409)

Criminal acts may in

Plaintiff's culpable conduct may
themselves be foreseeable,
constitute a superseding cause
and so within the scope of the
created risk (Restatements
2nd 448-449, p.412)
Dependent intervening force is
a predictable response or
reaction to the stimulus of a
situation for which the actor
has made himself response by
his negligent conduct
(Restatements 2nd 441 c)

"If official description of the

facts of the case as
formulated by the court is
detailed, the accident can
be called unforeseeable; if it
is general, the accident can
be called foreseeable."
(p.416n6)

Sources of Law
Palsgraf v. Long Island Railroad, NY
Appeals, 1928 (p.418)

Exceptions

Restatements 2nd 500 (p.435)

Last Clear Chance: defendant

fails to utilize the last clear
chance to avoid injury to
plaintiff (p.435)

Uniform Comparative Fault Act (p.440)

Defenses

Policy
If an act has a tendancy to
harm some one, it harms
him a mile away as surely
as it does those on the
scene (Dissent, p.422)

Sources of Law
Hanks v. Powder Ridge Restaurant, CT
Supreme, 2005 (p.459)

Exceptions
Gross negligence or
recklessness may never be
disclaimed by agreement no
matter what words are used
(p.468n4)
Unilateral disclaimers are not
effective unless brought to the
attention of plaintiff (p.469n6)

Murphy v. Steeplechase Amusement, NY

Appeals, 1929 (p.470)

Defenses
The average person is capable of
reading a release agreement and
deciding not to snowtube because of
the risks that he or she is asked to
assume (Dissent, p.467)

Policy
The societal expectation
that family oriented
activities will be reasonably
safe if important

Sources of Law
Rylands v. Fletcher, Exchequer Chamber,
1866 (p.507)
Rylands v. Fletcher, House of Lords, 1868
(p.512)

Exceptions
Defenses
Necessary and common uses Custom
of the land do not attach strict
liability (p.514n4)

Sullivan v. Dunham, NY Appeals, 1900

(p.516)

When the injury is not direct, but

consequential, such as is caused by
concussion, there is no liability in the
absence of negligence

Restatements 2nd 519-520

Indiana Harbor Belt Railroad v. American

Cyanamid, USCA 7th, 1990 (p.520)

Common carriers are not

subject to strict liability for the
carriage of materials that
make the transportation of
them abnormally danger,
because a common carrier
cannot refuse service to a
shipper of a lawful commodity
(Restatements 2nd 521)

Policy
Though there are many
hazardous activities that are
socially desireable, they
should pay their own way
(p.514n4)
Who should bear the cost of
the resulting damage?
(p.519n4)

Sources of Law
MacPherson v. Buick Motor Co, NY
Appeals, 1916 (p.551)
Escole v. Coca Cola Bottling Co of Fresno,
CA Supreme, 1944 (p.557)
Restatements 2nd 402A (p.568)

Barker v. Lull Engineering, CA Supreme,

1978 (p.572)
Soule v. GM Corp, CA Supreme, 1994
(p.573)

Exceptions

Defenses
The strict liability element in products
liability law comes from the fact that a
seller subject to that law is liable for
defects in his product even if those
defects were introduce, without the
fault of the seller for failing to discover
them, at some anterior stage of
production (p.570)

RAD must be proved by plaintiff

(Products Liability Restatement 2 cmt
f; p.580n6)

Policy
Types of defects:
Manufacturing defects
(single unit); Design defects
(all units); Inadequate
instructions or warnings
(Restatements 3rd Products
Liability)

Sources of Law
Hood v. Ryobi America, USCA 4th, 1999
(p.600)

GM Corp. v. Sanchez, TX Supreme, 1999

(p.628)

Exceptions
Warnings aimed simply at
avoiding consumer
carelessness should not
absolve a manufacturer of the
duty to design reasonable
safeguards for its products
(p.607n9)

Defenses
Policy
Costs of change may outweigh benefits
of additional warning (clutter cost)
(p.602, 604)

When the defendant claims

that the plaintiff failed to
discover a defect, there must
be evidence that the plaintiff's
conduct in failing to discover a
defect failed to meet a
standard of reasonable care
(Restatements 3rd 17 cmt d,
p.630)

Plaintiff's conduct other than a mere

failure to discover or guard against a
product defect is subject to
comparative responsibility

Sophisticated user doctrine: relieves a

manufacturer of warning when the class
of users are sufficiently knowledgeable
that they already know or appreciate
the danger (p.606n7)

Third party responsibility may be a

defense to allot some of the
responsibility to another negligent party
(p.633n6)
Statute of repose: like a statute of
limitations after product is first sold
(p.636)

Martin v. Reynolds Metals, OR Supreme,

1959 (p.676)

Sources of Law
Martin v. Reynolds Metals, OR Supreme,
1959 (p.676)

Exceptions

Defenses
Coming to the nuisance

Boomer v. Atlantic Cement, NY Appeals,

1970 (p.683)

Policy
Who is best able to address
the nuisance claimed? If
legislative, courts may shy
away from an injunction.
What is the value of the
defendant's conduct? Courts
also shy away from
negatively impacting the
local economy through
injunctions

Paz v. Brush Engineered, USCA 5th, 2009

(p.341n7c)
Seffert v. LA Transit Lines, CA Supreme,
1961 (p.711)

Court must reverse if damages are

inadequate or excessive (Dissent,
p.716)

Sources of Law
Taylor v. Superior Court, CA Supreme,
1979 (p.750)

Exceptions

Defenses
Something more than the mere
commission of a tort is always required
for punitive damages

Garratt v. Daily, WA Supreme, 1955

(p.898)

Insanity does not establish a defense to

liability (p.903n8)

Restatements 3rd 33(b) (p.902n6)

Parents not generally liable for torts of

their children (p.903n9)

Policy
An additional award or fine
from the defendant may
constitute unjust
enrichment, double
punishment, nullifies
insurance (Dissent p.753);
Pinto case (p.756n5)

Sources of Law
Exceptions
Picard v. Barry Pontiac-Buick, RI Supreme,
1995 (p.904)
Wishnatsky v. Huey, ND Appeals, 1998
(p.907)

Defenses
Policy
In order that a contact be offensive to a
reasonable personal sense of dignity, it
must be one which would offend the
ordinary person and as such one not
unduly sensitive as to his personal
dignity. It must be a contact which is
unwarranted by the social usages
prevalent at the time and place at
which it is inflicted
Busy world--not every unwanted touch
is a battery

Sources of Law
Lopez v. Winchell's Donut House, IL
Appeals, 1984

Exceptions

Defenses
Policy
Confinement must be against the
plaintiff's will, and if a person
voluntarily consents to the confinement
there can be no false imprisonment
(p.913)
Confinement within a country does not
constitute false imprisonment (p.915n3)
If a suspected theft occurs int he
presence of a store employee, the
shopkeeper still arrests at his own
peril--the arrested person must be
proven guilty

Womack v. Eldridge, VA Supreme, 1974

(p.919)

Title VII and 42 USC 1981:

First amendment rights (don't worry
alternate avenues to pursuing about this)
what may not otherwise be
outrageous conduct. Title VII
limits damages, 1981 does
not limit damages (p.926)

Hart v. Geysel, WA Supreme, 1930 (p.946) Custom (p.948n3)

The scope of the consent may
limit this defense (p.948n4)

Emotional distress provides

no clear definition of the
prohibited conduct
(p.922n4)
Turns the passions of the
moment into law (p.923n5)

Sources of Law
Courvoisier v. Raymond, CO Supreme,
1896 (p.949)

Exceptions

Katko v. Briney, IA Supreme, 1971 (p.952) The only time when such
conduct of setting a dangerous
device is justified would be
when the trespasser was
committing a felony of
violence

Vincent v. Lake Erie Trans., MN Supreme,

1910 (p.858)

Defenses

Policy