Torts Outline Fall 2019

Frakes- Farnsworth 2nd Ed.

Table of Contents
Landowner Liability Matrix...................................................................................................................................3
General............................................................................................................................................................4
Battery..............................................................................................................................................................5
Volitional Act (1).....................................................................................................................................................5
Intent (2).................................................................................................................................................................. 6
Intent to Contact (A)..................................................................................................................................................................6
Harmful or Offensive Contact (B).............................................................................................................................................7
Causation (3)............................................................................................................................................................7
Damages/Harm (4)..................................................................................................................................................7
Trespass...........................................................................................................................................................8
Intent to Enter (1)....................................................................................................................................................8
Damages (2).............................................................................................................................................................8
Affirmative Defenses.......................................................................................................................................9
Consent.................................................................................................................................................................... 9
Defense of Person and Property...........................................................................................................................10
Necessity: Public and Private...............................................................................................................................12
Private Necessity.....................................................................................................................................................................12
Public Necessity......................................................................................................................................................................14
Negligence.....................................................................................................................................................15
Duty (1).................................................................................................................................................................. 16
Affirmative Acts......................................................................................................................................................................16
Causing Peril and Undertaking Rescue...................................................................................................................................17
Special Relationships...............................................................................................................................................................19
Owners and Occupiers of Land...............................................................................................................................................21
Breach of Duty of Reasonable Care (“Negligence Prong”)- (2).........................................................................25
The Reasonable Person Standard............................................................................................................................................25
The Hand Formula – Failed Precautions.................................................................................................................................27
Breach of Industry Custom......................................................................................................................................................28
Negligence Per Se (Breach of Statute)....................................................................................................................................30
Res Ipsa Loquitur (“The Thing Speaks for Itself)...................................................................................................................32
Causation (3)..........................................................................................................................................................35
Cause in Fact...........................................................................................................................................................................35
Proximate Cause......................................................................................................................................................................38
Defenses to Negligence..........................................................................................................................................43
Contributory and Comparative Negligence.............................................................................................................................43
Assumption of the Risk...........................................................................................................................................................45
Strict Liability................................................................................................................................................48
Wild Animals.........................................................................................................................................................48
 “Escaping” Dangers..............................................................................................................................................49
Abnormally Dangerous Activities........................................................................................................................51
Respondeat Superior – Employer Liability (“Let the master answer”)............................................................53
Nuisance................................................................................................................................................................. 56
Products Liability..........................................................................................................................................59
Historical Treatment................................................................................................................................................................59
Legal Status Today................................................................................................................................................60
Manufacturing Defects..........................................................................................................................................62
Design Defects........................................................................................................................................................65
Failure to Warn.....................................................................................................................................................68
Landowner Liability Matrix
  Trespassers Licensees Invitees
Artificial
Conditions
Known Known (Social
Unknown Dangerous (Business
(Discovered) (Constant) Guests &
Trespasser to Children Guests)
Trespasser Trespassers Volunteers)
(Attractive
  Nuisance)
Willful,
wanton, or
Liability Liability Liability Liability Liability
reckless Liability
acts? (Haskins)
Reasonable Reasonable Reasonabl
Care (If Care (if e Care (if
Duty of Likely
Affirmative No Duty risk of danger danger
Reasonable Reasonable
Acts (Haskins) death/seriou hidden) hidden)
Care (Herrick) Care
s harm) (Rest. (Rest.
(Rest. §334) §341) §341)
Reasonable
Duty to Reasonable
No Duty Care (for Reasonable
Disclosure/ Warn/Remedia Care (to
to artificial Care (if Reasonabl
Remediation te (for artificial eliminate
Warn/ conditions danger e Care
of Known conditions & danger of
Remediat & risk of hidden) (Rest.
Dangerous risk of death/ death/serio
e death/seriou (Rest. §343)
Conditions? serious harm) us harm)
s harm) §342)
(Rest. §339)
(Rest. §337)
No Duty
Nondisclosur (unless
e of caused by
unknown Owner’s Reasonabl
No Duty
defects that No Duty "affirmativ e Care
No Duty No Duty
should (Generally) e (Rest.
reasonably negligence §343)
have been ")
discovered? (Davies)
(Lordi)
General:
1. Standard of proof: Preponderance of the evidence
a. Intentional torts (battery, trespass, e.g.)
i. Strict liability: damages awarded regardless of caution employed
b. Unintentional torts
i. Negligence: damages awarded only for harms resulting from failure to use “reasonable care”
2. Goals:
a. Deterrence/RegulatoryCreating negative repercussions helps drive preferable behavior
b. Compensation Party that has been wronged shouldn’t have to pay for damages
c. Corrective Justice (Morality) Just to apply costs of behavior to party that has so behaved
3. Perspectives on Torts
a. Economists vs. Moral Correctivists
i. Economists: purpose of tort law is to minimize the total cost of accidents through
deterrence/precautions on both sides
1. Incentivize precautions that prevent injuries more costly than the precautions; but also
allow injuries less costly than the precautions
ii. Corrective Justice: Tort law as a moral enterprise meant to “produce justice” in terms of rights,
obligations, etc.
1. Rules evaluated for moral content rather than incentives
b. Moral theorists don’t think we have enough information, generally, to act rationally enough for the
economists’ perspective to apply, and they reject efficiency as a prevailing legal goal.
c. Economists find moralists wishy-washy, non-empirical
d. Mixed views:
i. Efficiency has an underlying moral component
ii. Costs should be minimized, but shifted (moralistically) from victims to those acting wrongly

INTENTIONAL TORTS
 Because Intentional torts are governed by Strict Liability- the level of caution used does not matter-
there is a prima facie case for each.
o Battery
o Trespass
o Consent
o Necessity
 Consent and necessity are key components of liability in trespass cases
 Consent (as it relates to offensiveness of contact) is a key element of liability in battery cases
R2T 18: Battery: Offensive Contact
1. An actor is subject to liability to another for battery if:
a. He acts intending to cause a harm or offensive contact with the person of the other or a third
person, or an imminent apprehension of such contact, and
b. An offensive contact with the person of the other directly or indirectly results.
2. An act which is not done with the intention stated in Subsection 1a 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 inflicting it and, therefore, would be negligent or reckless if the risk threatened
bodily harm.

R2T: 19: What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.

Battery
(3 Elements)- A commits battery upon B if:
1. A acts (volitional act)
2. Intending to cause a contact with B of a type that is harmful or offensive and
3. A’s act causes such contact (and causes the harm or offense at issue)

Volitional Act (1)

1) A must know that they are taking the action
a. Reflexive movement (e.g. spams) will not satisfy
2) Mental Capacity: If A understands their actions, and make a choice to contact, then the act is
voluntary.
a. Polmatier v. Russ: Schizophrenic (A) thought his father-in-law (B) was a foreign spy intending
to kill him, so A took B to the woods and shot him. At trial, tried to argue that A had no intent
because of mental illness (said it was like a muscle spasm). Court: A made a choice to harm B.
Why he made that choice is inconsequential. A “crazy choice” is still a voluntary act.
b. Policy:
i. Courts are afraid of people fraudulently claiming mental disability to avoid liability for their
torts.
ii. Deterrence Guardians incentivized to deprive mentally disabled people of opportunities to
inflict injuries upon others and make sure they’re properly cared for.
3) Self-Preservation: If acting to preserve oneself in immediate physical danger, act is not volitional
(akin to muscle reaction).
a. Laidlaw v. Sage: D placing himself between P and the man with the bomb is not battery because
“the law presumes that an act or omission done or neglected under the influence of a pressing
danger was done or neglected involuntarily.”
b. Policy:
i. Courts don’t want people to be thinking about their potential liability when considering
whether to run for their lives (see necessity defense).
 4) Differentiating Polmatier and Laidlaw:
a. Immediacy of danger is most important factor to the self-preservation argument.
i. Polmatier trying to “save himself” but there was no imminent threat he was responding to.

Intent (2)
1) Needs to be (A) Intent to touch AND (B)(i) intent to cause harm OR (ii) intent to commit act and
act is deemed unlawful/offensive.
2) (Jurisdictional Split) Implied Intent: If intent to contact (A) is shown and the act itself is harmful
or offensive then intent for (B) can be implied.
a. Vosburg v. Putney: Because class was in session, the kick was a “volition of the decorum of the
class,” kick was unlawful, so intent can be implied. A committed battery upon B.
i. Thin-skull rule: D liable for all harm caused, takes P as he fines him.
b. Policy:
i. Convenience Hard to prove that A intended to harm/offend B, easier to prove intent to
contact and that contact was harmful/offensive.
ii. Deterrence If unsure whether the contact is offensive/harmful just don’t do it, even if your
intent is good. White v. University of Idaho.
Intent to Contact (A)
1) Subjective Standard- Depends on the thought of the person causing the harm (i.e., accidental
bumps are not battery)
a. Garratt v. Dailey: Intent satisfied if D intentionally set in motion a series of events that would
cause harm with substantial certainty. (minor pulling chair out as woman was sitting down).
2) Intent must be specific to the act that caused the contact
a. Knight v. Jewett: A intended to contact, but not specifically to step on B’s finger. No battery
i. Maybe still negligence, but intent is key to distinction from Vosburg.
3) Jurisdictional Split: Accidental Harm: Courts are split when someone commits a harm intending to
do something dangerously adjacent to the harm, but not the harm itself. (Probably negligence in all
jurisdictions though)
a. In-Class hypo: Crazy person (A) thinks he can curve the bullet around B like in “Wanted.”
Shoots him instead.
i. Minority Rule: Reasonable/objective standard for the intent. A should have known that
wouldn’t happen and therefore committed battery.
ii. Majority Rule: No intent to contact w/ B, so no battery (still negligence).
Transferred Intent (A1)
1) A intends to batter B, instead batters C.
a. A’s intent transfers from B to C.
2) Keel v. Hainline: Because the throwing of erasers was harmful, A intended to batter B. That intent
transferred to C when she was struck. “Transferred”-Transferred intent also applies from B to C.
a. “Transferred-Transferred” Intent: In Keel, B is liable because he was active in the creation of
A’s intent. Without his actions, A would not have thrown the eraser, so B becomes equally
liable in torts.
 i. Issue: How is there intent to C, when B would be unable to sue A for battery (consent
defense)?
1. Consent is an affirmative defense, it doesn’t negate the intent (or any elements) just
stops liability.
ii. Requires active participation in the intent creation (i.e. “returning fire”). Mere
heckling/goading not enough.
3) Still requires specific intent to contact with a specific target.

Harmful or Offensive Contact (B)

1) Harmful Contact- Intent to cause physical damage
2) Offensive Contact: “outside the order and decorum” of the situation. Vosburg v. Putney
a. Consent informs whether contact was offensive. If consent (even implied), not offensive.
i. Objective Standard (most jurisdictions): what would typically be expected of reasonable A
and B in situation? If contact falls within “typical expectations” then assumed consented to.
1. Court will allow subjective evidence that overrules the objective standard.
2. More likely that subjective evidence shows intent than show no intent (need explicit
“Don’t touch me,” etc.)
ii. White v. U. of Idaho: Piano teacher (A) touches student (B) lightly on her back while in her
home, causes injuries. Claims the touch wasn’t offensive because he uses it to teach in class.
1. No objective consent to random physical contact when someone is seated at their
counter. B gave no indication of consent and no implied consent in the situation,
contact was offensive. Battery.
iii. Policy:
1. Administrative Ease Subjective standards are hard to determine as an
evidentiary/fact finding matter (how do we determine what A or B thought at the
moment of contact?)
2. Future Guidance Objective standards help people determine what they can/can’t do.
Not helpful if every possible B has every possible standard.
Causation (3)
1) Causation in fact and Proximate Cause must be shown.
Damages/Harm (4)
1) Policy: Intentional torts can have “dignitary harm”
a. Because the torts themselves are violations that the gov. wants to protect against, the mere act
of the tort causes harm. Don’t necessarily need to find that damages occurred.
2) Eggshell Skull: A is liable to all damages caused by B, so long as battery exists. Extreme damages
(Vosburg, White) still liable.
3) Damages:
a. Nominal: Dignitary harm damages. Small damages that just indicate a tort occurred.
b. Compensatory: Damages that related to costs suffered by the victim.
c. Punitive: Damages above compensatory damages that relate to society’s anger at the
activity/wish to deter it in the future.
R2T § 158. Liability for Intentional Intrusions on Land.
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any
legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.

R2T § 166: Non-Liability for Accidental Intrusions

Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent
entry on land in the possession of another, or causing a thing or third person to enter the land, does not
subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a
thing or third person in whose security the possessor has a legal protected interest.

R2T § 168: Conditional or Restricted Consent

A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition
or restrictions is complied with.

Trespass
(2 Elements)- A trespasses if they
1. Intentionally enters land possessed by B without B’s consent, or causes a thing/third person do to
so (i.e. throwing)
2. Causes harm (can be dignitary/nominal)

Intent to Enter (1)

1) Intent to commit act; not intent to trespass;
2) R2T §164: Intention to be on a place in earth satisfies intent to enter. No Defense for mistake of
fact or law (e.g.; can’t say you didn’t know where your property ended, and others began)
3) R2T §166: Accidental intrusion (e.g. slip and slide onto land) does not satisfy intent (unless the act
is “unreasonably dangerous”)
4) Pegg v. Gray: Owner/keeper of hunting dogs trespasses when they sent their dogs (or know their
dogs will likely go) through another’s property.
a. Sending trained dogs somewhere is like throwing something (throwing something is
entry). If you know or should expect they will go on the land, then it’s intentional.
b. The “wandering” of even trained animals is not trespass (have to be directing them)
5) Malouf v. Dallas Athletic Country Club: Country club not trespassing when their patrons
accidentally shank balls and harm neighbors. No intent if object not intended to enter property.

Damages (2)
1) If trespass and harm, liable (even if exercising reasonable standard of care);
2) R2T §158: D is strictly liable for any harm caused while trespassing.
Affirmative Defenses
Consent
1) Requirements of Consent
a. Must be Given
b. For the Specific Act for which the defense is sought (by the Specific Actor)
c. Not procured by Fraud or Misrepresentation (Generally)
2) R2T §892: Consent is willingness in fact for the conduct to occur. May manifest by action or
inaction
a. If words/conduct reasonably understood as consent, they constitute apparent consent [Objective
Standard (See White v. University of Idaho)]
i. Emergency Medical situations constitute implied consent
3) R2T §892A: Consent (not vitiated by fraud/misrepresentation) is a complete bar to recovery,
provided the consent is for the specific act.
a. Mohr v. Williams: Doctor (A) tells B she needs an operation on her right ear. Once B is under
anesthesia, A realizes left ear instead needs surgery, so he operates. Defends that she consented
to ear surgery (also brings up “emergency” defense).
i. Patient must be the final arbiter as to whether he takes his chances with the operation or
living with the condition. Consent to surgery on the right does not satisfy consent to
surgery on the left.
ii. A argued that B’s general practitioner (present for the operation) served as B’s agent.
Court did not accept this, but they may if the facts are different
4) R2T §52: Consent must be given to the specific actor for the defense to apply.
a. Grabowski v. Quigley: B consented to have C operate on him but did NOT consent to A
operating.
i. Patient needs to be the final arbiter over his body and consent to all aspects of surgery. He
did not consent to the other doctor so there is a cause of action. Get informed consent that
allows for transfers.
b. Jurisdictional Split- R2T §52 Comment a: If you go to a hospital, not a specific doctor, your
consent will likely transfer to whatever doctor is needed to treat you.
c. Policy: Doctors may argue that once a patient is under anesthesia and a surgery has begun, they
should have leeway to operate without having to wake them (costs and time of rescheduling,
uncertainty of anesthesia, etc.)
i. Courts are not swayed: offer some leeway (discovery during operation that necessitates a
related procedure, anesthesiologist extend) but the argument will not work for something
like left vs right ear.
ii. Requirements to satisfy consent exist on a sliding scale depending on the situation and the
torts involved.
1. In medicine, we require very specific, informed consent because of the nature of
medicine/surgery
5) Fraud or Misrepresentation: To vitiate consent, the fraud must be central to the interest protected
under the tort.
 a. R2T §892B: No defense consent obtained by fraud or misrepresentation that is central to the
interest protected (lying about who you are to access secret information)
b. R2T §57: Fraud or misrepresentation relating to “collateral matter” does not vitiate the consent
c. Broska v. Olsen: Patients argued that because they would not have consented to the touching if
they knew D was HIV+ (tried to make a Grabowski argument D was “a different Dr.”), the
fraud was central, but the court disagreed with the analysis.
i. “A patient’s consent is not vitiated…When [they] are touched in exactly the way they
consent.”
ii. Likely a different outcome if court thought there was a chance patients contracted HIV
iii. Policy: Want to use objective norms of medical care, not the most fragile sensibilities of
the patient.
d. Neal v. Neal: Lying about monogamy in a marriage may be fraud central to consent to sex
i. Rationale: (specific to marriage) spiritual connection of vows, risk of STDs.
ii. Most states leave infidelity issues to family court
iii. Extent of this fraud: lying about love or marital status might be similar (spiritual
connection), lying about wealth or other attributes would not count. Lying about having
STDs definitely would.
e. Desnick v. ABC: The fraud (lying about being patients/recording the doctor) did not lead to an
“invasion” of the interests that trespass seeks to protect.
i. Ds didn’t sneak in and record private activities, they were given an eye exam and the
doctor talked openly to them. (Analogy: food critic, window shopper, etc.). If they had
used their misrepresentation to obtain something invasive and unrelated to what P held
himself out to the public for, different result.
1. Analogy issues: Ps here were malicious, not so in analogies
ii. Policy:
1. There is less assumption of privacy in a business open to the public vs. in home.
2. ‘Social utility’ of is why restaurant critic is not trespassing while fraudulent meter
reader is Consideration of public interest and benefits to industry
3. Also, judges do not want to make common activities into torts.
4. External policy concern Opening up grounds for trespass too broadly could be
anti-competition, in cases such as customer trying to bid down auto dealer

Defense of Person and Property

1) Requirements
a. D’s harm must be proportional to the harm protecting against
b. D must act in response to a threat of harm (does not defend against revenge)
i. Notice Prior to using force, must make a demand that intruder leave
2) Policy:
a. Justice/fairness People have a right to security, and we want them to defend that right if
reasonably possible (courts will never be able to provide full redress like just avoiding harm)
b. Cost to society Privileged harm to original aggressor is more efficient than court system.
c. Deterrence Knowing a victim can defend themselves may deter the initial threat (careful
balance to avoid encouraging escalation)
 i. Don’t want victim reacting disproportionately or P beginning with greater threat to
overcome possible defense harm.
3) Proportionality- The Guiding Principle
a. Force used must be proportional to the threat posed by P (maybe slightly escalated)
i. If there are two equally effective ways to repel the harm, D must choose the method that
will cause least harm (objective standard for effectiveness and anticipated harm).
ii. Court will always consider the option to accept the harm and then sue
iii. Human life generally valued over property interest in proportionality.
b. Proportionality Factors:
i. Exhaustion of reasonable options
ii. Notice
iii. D present at time of defense
iv. Level of threat initially posed by P
v. Discriminate/indiscriminate nature of means of protection
vi. Other value associated with means of protection (i.e., dogs)
vii. What was threatened/harmed? (property v. person/ property v. property)
viii. Relative value of properties (if property v. property)
ix. What would a single owner do?
c. Katko v. Briney: higher value on human safety than personal property
i. Cannot do through a mechanical device (trap) what you could not do if present.
ii. Deadly force is not a proportional response to theft.
iii. You can only use deadly force when physically threatened, since traps are for when you
are not present (ergo not threatened), they will almost never be proportional.
d. Woodbridge v. Marks: Dogs chained on property are treated differently than “spring guns” and
other deadly force traps (no liability when P trespasses and is harmed by them). Why?
i. Dogs are not indiscriminately deadly (bark, bite, eventually may kill)
ii. Dogs serve many functions (gun traps are only meant to kill/harm)
iii. Dogs can give more warning and notice.
1. The more noticeable something is, the more proportionate it is considered to be
e. Single Owner “Rule”: What would one person do if they owned both properties?
i. Single owner would make the economically efficient decision. Dividing line is going to
come down to relevant value of properties, and air on side of D if there’s a tie.
ii. Kershaw v. McKown: When harming property to protect property, proportionality is
analyzed by the relative value of the threatened and harmed properties.
1. D may harm P’s property to save their own if D’s property is of equal or greater
value than P’s property. (Here, dog is worth more than goat, so liability).
2. Policy: Rule meant to minimize the total amount of costs incurred by both P and D
in these property vs. property scenarios
iii. Hull v. Scruggs: Dog costs more than an egg, but it would never stop eating them and
eventually the cost of eggs was greater than value of dog. D exhausted reasonable
alternatives before killing the dog.
1. Law requires reasonable assessment of the situation and alternatives.
 2. If reasonable alternatives are exhausted and the harm continues, then D may harm
property worth more than any 1 of their property harmed.
3. P’s property may cost more than that threatened, but if precautions cost more than
the harmed, it may be reasonable to harm it.
iv. If presented with problem of destroying property to protect own property- use rule from
Kershaw (relative value), followed by Hull rule (what was relative value? Alternatives?
 exhaust reasonable options before harming property of others to protect yours)
4) Threat of Harm
a. Applies after harm if the threat continues
b. Wright v. Haffke: Court makes clear that defense does not protect against vengeance sought
after the harm has occurred. Because D was present and a victim of a violent robbery that was
still ongoing when he shot robber (P), the threat of harm still existed so D could act in self-
defense. D’s force was in response to threat of physical force, not threat to property.
i. Court felt no other way to stop thieves (this “other opportunity” consideration matters,
but one may disagree with its application here).
ii. Issues, Timing and Threat:
1. Found D was still under threat even though he shot them as they fled, when does
ongoing threat become vengeance?
2. D could use deadly force because he was physically assaulted at the start of robbery,
how do we determine when 1 threat (bodily harm) ends but another (theft) continue?

Necessity: Public and Private

 Private: One person harming another to save themselves from third party danger.
 Public: One person harming another because they’re saving public (many people) from danger.
Private Necessity
1) A is allowed to harm B because A’s harm was in avoidance of harm from a 3rd party/event. A will
generally be liable for any actual damage caused by their actions (Vincent Rule). Ploof v. Putnam
a. Bars B from using protection defense in harm (forces them to take the accept and sue route)
and bars recovery for nominal damages
b. Most commonly invoked in trespass case
2) Harm must be:
a. Acute/impending (v. chronic)
b. Objective, or known to the other party
3) Policy: Cost Minimization/Single Owner
a. Ideally, parties would negotiate an agreement for the trespass. Cannot expect a fair bargain to
occur in emergency situations. Court is trying to force an outcome that we think would happen
under a normal, non-emergency bargaining situation.
b. Courts analyze the situation ex-post to decide what activities by both P and D would result in
the lower cost to society.
c. Single-Owner Theory: When A harms B to avoid their own harm, the harm was necessary
(and privileged) if their behavior would have occurred in a situation where they bore both costs
 i. If the behavior satisfies then it is privileged (i.e. harmed would be liable for any harm
they cause in “protection”) but harmer liable for costs.
4) Ploof v. Putnam: P’s trespass to D’s dock was necessary because of the impending storm, and D is
liable to the harm they suffered by his actively removing them. If you’re fleeing from imminent
danger, you have the privilege to do so.
a. D not legally required to help, just can’t forcibly remove.
b. Policy
i. Reciprocity Dock owners have just as much chance of needing to tie to another dock
as they are to have someone else tie to theirs.
ii. Deterrence Give incentives to make decisions that minimize collective social harm
iii. Justice D made choice to cast them aside, endangering not only the boat but also lives
5) Rossi v. Delduca: Ds are responsible for harm caused by their dog, unless it’s to a trespasser
(Woodbridge). Because the dogs chasing P made it necessary for her to go on D’s land, she wasn’t a
trespasser. Ergo, D is liable for the harm that his dogs caused P.
6) Vincent v. Lake Erie Transportation: D’s trespass was privileged, and they acted with due care,
but D is still liable for any damages they caused to P while trespassing. (Vincent Rule) Necessity
creates a right to trespass, but not a right to avoid liability for resulting damages.
a. Note: D cannot be liable for punitive damages due to privilege
b. Policy Rationale:
i. Some view Vincent Rule as breaking moral tie
ii. Courts want to structure rules to minimize the costs. Vincent rule is codification of
single owner Incentivize party to take approach that minimizes total costs to all parties
iii. Trespasser likely has more information and is more likely in the position to decide when
posed with necessity possibility (do I trespass, possibly harming owner, or do I allow
this 3rd party to harm me).  Who’s in best position to mitigate harm? Trespasser
1. Because shipowner is almost necessarily on board/present (dock-owner might not
be) at the critical decision point, we choose to put burden of deciding on them.
2. By making trespasser liable for damages even when necessary, their analysis will
likely mirror the expected analysis under single-owner.
3. If the actors receives all of the benefits from that choice and bears all of the costs of
that choice, the actor will make the socially optimal choice.
7) Texas Midlands: P’s predisposition to illness was subjective, but adequately disclosed to D.
Therefore, their trespass was necessary, and D is liable for removing them.
a. If they had been allowed to stay, likely would have been liable to D for the electricity and cost
of security, etc.
8) Southwark v. Williams (England): Long-term squatting is not covered under necessity (the 3rd party
harm must be immediate and acute). Necessity truly does require immediacy of danger.
a. Policy: Allowing long-term existential dangers (like poverty) to excuse harm would drastically
change behavior. Other institutions are set up to help with that, don’t want to incentivize taking
matters into people’s own hands in a tortious way.
Public Necessity

R2T § 262. Privilege Created by Public Necessity

One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the
act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster.

Illustration 1. In the course of fighting a serious and widespread conflagration, A, a fireman, removes B's
car lawfully parked on the highway for the purpose of gaining access to a fire plug. In doing so, A
unavoidably damages the car. A is not liable for the harm thus caused.
 
Illustration 2. A, an agister of cattle, kills B's bull, which is in his possession, to prevent a spread of
infection which is dangerous to other cattle and to human beings. If the act is reasonably necessary to
prevent the spread of the disease, A is not liable to B.
 
Illustration 3. A, a fireman, demands that B get out of his automobile and permit the fireman to drive it to a
widespread conflagration. B refuses to turn his car over to A, but offers to drive him to the fire. A is not
privileged to take the car.

1) R2T §262: D’s harm is privileged because it protected society as a whole (hurt 1 vs. hurt many)
a. D is not liable for the act or the harm (differs from private necessity)
2) Policy:
a. In acting to prevent a public disaster of this nature, you are providing benefits to others (i.e.,
externalizing benefits to others). So you should be able to externalize the cost as well.
b. Want to incentivize action when protecting the greater good
c. Two questions usually arise in someone’s head when they see public danger:
i. Is there a danger?
ii. What should I do about it?
d. Once (i) is answered in the affirmative, courts do not want people wasting time thinking about
the risks in (ii).
3) Jurisdictional Split:
a. When can the defense be invoked?
i. Struve v. Droge: Threat of harm (apartment fire) must actually exist to use this defense;
Perception of imminent danger must be correct. Inconsistent w/ Restatement
ii. R2T §262: Actor must “reasonably believe” the act is necessary to avoid public disaster
b. What if the Government is the one acting?
i. Some courts say the act is a taking (and government must pay)
ii. Other courts say it’s the same as a private actor. [Surocco v. Geary]
1. City mayor destroys house to stop fire from spreading, no liability.
4) An actor responsible for the public peril may not use public necessity for harm caused in stopping it
Negligence
(4 Elements):
1. Duty of reasonable care owed to P
a. Affirmative Acts
b. Undertakings
c. Special Relationships
d. Owners and Occupiers of Land
2. Breach of duty of reasonable care (“negligence” prong)
a. Reasonable Person
b. Hand Formula
c. Custom
d. Negligence Per Se
e. Res Ipsa Loquitur
3. Causation (cause in fact and proximate causation)
a. Cause in Fact
b. Proximate Cause
4. Damages
Duty (1)
 The precise claim in a negligence case is that the defendant had a duty to the plaintiff- a duty to use
reasonable care- and that the defendant breached that duty.
o This was of thinking about negligence is important because in some situations a careless
defendant may be found to have no duty at all toward a plaintiff, and so not be held liable
even if his lack of care caused the plaintiff great harm.
 Establish D owed a duty of care towards P; look at situations where there is no duty (generally we
assume and find a duty- act reasonably; some situations- not doing act is unreasonable);
o Default- assume there is a duty; Duty issues will most likely be failure to rescue
Affirmative Acts
Restatement (Third) of Torts. 7 Duty
(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of
physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that
the ordinary duty of reasonable care requires modification.
 
Restatement (Second) of Torts. 314 provides: "The fact that the actor realizes or should realize that action
on his part is necessary for another's aid or protection does not itself impose upon him a duty to take such
action."
Illustration 4: A, a strong swimmer, sees B floundering in deep water and obviously unable to swim.
Knowing B's identity, he turns away. A is not liable to B.

1) Background rule of our system of tort liability for unintentional harm:

a) People do not start out with duties to one another; a duty must be established, then a breach
of the duty, before liability can arise.
2) The law generally imposes duties of care on people when they engage in affirmative acts- the sorts of
acts that can create risks for others.
3) A defendant ordinarily cannot be held liable for simply doing nothing, even if that failure to act causes
harm to the plaintiff.
4) R2T §314: The fact that an actor realizes or should realize that their action is necessary to aid another
does not impose a duty to take such action
a) If Michael Phelps finds someone drowning, he can watch them die and have no liability
5) A defendant who does nothing has no duty of care to others; doing nothing sometimes is called
"nonfeasance," for which the law imposes no liability- as opposed to "misfeasance," or affirmative acts
done carelessly, for which defendants may be held liable.
6) Policy:
a) Individual Liberty people are in control of their own actions so long as they do not harm others
b) Further Risk Avoid legal compulsion driving amateurs to poorly perform a rescue
c) Administration (slippery) Where do courts draw the line on compelling acts? [Epstein donation]
d) Morality likely already provides enough incentive (Posner)
e) Compelled altruism weakens real altruism (contracts arguments)
f) Punishing for failure to rescue may lead people to avoid situations where they could be helpful/may
need to perform a rescue.
i) Empirically, good Samaritan laws don’t change things all that much (see VT)
Causing Peril and Undertaking Rescue
Actions Causing Peril
Restatement (Second) of Torts. 321 Duty to Act when Prior Conduct is Found to Be Dangerous
(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable
risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk
from taking effect….

Restatement (Second) of Torts. 322 Duty to Aid Another Harmed by Actor's Conduct
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 further harm.
 
1) R2T §322: If an actor knows, or should know, that his actions have caused bodily harm to another who
is in danger of further harm, the actor has duty to exercise reasonable care to prevent further harm.
a) Rule applies whether the act is innocent or tortious and is true even if contributory negligence
would bar recovery on the initial harm.
2) R2T. §321: If an actor later realizes, or should realize, that he has created an unreasonable risk of harm
to another, he is then under a duty to exercise reasonable care to prevent the risk.
a) Rule applies even if the actor had no reason to believe the risk would occur at the time of his action
3) Yania v. Birgen: D only has a duty to save if they are legally responsible, in whole or in part, for
placing the victim in the perilous situation.
a) D goading a mentally competent adult into jumping into a pool of water is not “legally responsible”
for the peril suffered and has no duty to save.
i) If child, or someone of lowered mental capacity, maybe goading would’ve caused them to jump.

Undertaking a Rescue
1) R2T §323: Someone who begins to save another owes a duty to continue reasonably if:
a) The actor leaves the victim worse off by his care, or
b) The victim detrimentally relies on the care
2) R2T §324: Someone taking charge of a helpless person, is liable to them for any bodily harm caused if
a) Actor negligently fails to secure the victims safety, or
b) Actor leaves the victim worse off
3) Episodic Duty: once the peril passes or changes, the duty must be reestablished
4) Victim in a Worse Position – Actor responsible for victim being worse off (like affirmative acts)
a) Courts frequently find that single event created Ds duty to P and represented D’s breach of that duty
i) United States v. Lawter: “Anyone who attempts to do anything, even gratuitously, for another
(has an obligation) not to injure him by the negligent performance of that which he has
undertaken.”
(1) As soon as P fell out of harness high above the water, D (a) left her worse off [creating duty
to continue the rescue], and (b) failed to reasonably discharge that duty [showing breach].
(2) Event was also (c) the cause in fact (one event = three of the elements of negligence).
b) Frank v. United States: Because Coast Guard was not responsible for P falling in the water while
his boat was being towed, the Coast Guard had to meet no higher standard (under tort law) rescuing
a private individual than anyone else. CG’s unsuccessful rescue does not make them liable.
 i) Two ways to frame this case:
(1) CG owed a duty to continue towing P’s boat, but (because they did not cause it) did not owe
a duty to rescue him from the water, or
(2) CG owed a duty to rescue P reasonably, but (because they did not cause his fall) did not
breach their duty.
(3) Issues: Courts struggle to distinguish between no liability because there was no duty, and no
liability because D did not breach the standard of care.
5) Detrimental Reliance
a) 3 Factors for a detrimental reliance:
i) Reliance on a specific act
ii) Must be connected to the peril and action in aid
iii) Must be reasonable given the circumstances
b) Ocotillo JV v. West: When D told golf-course employees that he would drive the drunk victim,
reliance on that claim foreclosed other avenues of aid (namely the employees) and created a duty
that D continue reasonably caring for the victim.
6) Medical Professionals – Look to Detrimental Reliance
a) Doctors have no initial duty to treat a patient, but duty to continue reasonably. Duty is episodic
even a family doctor can refuse to begin care for a new condition.
i) Hurley v. Eddingfield: Medical licenses allow treatment, but do not compel it. Doctor could
refuse to treat the patient for whatever reason, even though they treated them before, and knew
that no other doctors could help.
b) Once a doctor begins treatment for a condition, they have a duty to reasonably continue.
i) O’Neill v. Montefiore Hospital: Doctor hearing patient’s symptoms over the phone and telling
patient to return in three hours constituted the beginning of an examination. Patient
detrimentally relied on the medical advice that it was OK to wait, and Doctor is liable for any
harm due to his negligence.
(1) Issue of medical advice v. purely financial conversation.
ii) Jurisdictional Split Not all jurisdictions would find that a phone call = examination that
created duty; Rise of telemedicine has relaxed this doctrine somewhat.
7) Policy: Generally, liability for undertakings once begun is justified from a reliance perspective.
a) Your apparent assumption of responsibility may discourage others from attempting rescue.
b) The victim may forego other avenues of rescue if he believes you have begun one.
c) Federal statute has addressed O’Neill problem- hospitals are now required to find you treatment
regardless of insurance status.
8) Hypos: Phelps with a rope (a) stops pulling halfway through, or (b) swings victim into rocks
a) In (a), did he leave the victim “worse off”?
i) maybe there is a detrimental reliance argument? (Maybe someone else didn’t stop because they
saw Phelps helping)
b) In (b), when did his duty to reasonably save arise? (when he started pulling? right before the victim
hit the rocks? Somewhere in-between?)
Special Relationships
Restatement (Second) of Torts (1965)
315. General Principle:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm
to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the
actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to
protection.

Duty to Aid Within the Relationship

1) Nonfeasance is usually not tortious between strangers, but certain relationships may provide or increase
a duty to aid.
2) R2T §315- An actor may owe a duty to protect someone from harm if their relationship with the person
imposes a duty to protect them.
3) Ship Captain – and – Crewmen
a) Trans-Pacific Fishing & Packing: Every ship owner or operator owes a duty to its crew to use
every possibly means to rescue them from the sea.
b) Policy: Rationale for this category?
i) Most of the arguments in favor of no duty to rescue do not apply here
ii) Discrete category (captain and crew under sail) halts slippery slope.
iii) No fear of “amateur” rescues
iv) No other parties mean no interference and no ability to argue “worse-off” or “reliance”
4) Common Carrier – and – Passenger
a) Brosnahan v. Western Airlines: Airlines are common-carriers and they owe a duty to keep their
passengers safe while they are underway (includes while passengers are boarding).
i) Airline can be held liable when a bag drops on the head of a man during boarding, because it
would not have happened if there had been an attendant on help to help the other passenger.
b) Boyett v. Trans World Airlines: A common-carrier’s duty to its passengers is discharged once the
passenger reaches a reasonably safe space. Different legs of a flight highlight the episodic nature of
duty to act, during layover no duty and new duty for next flight.
i) Airline’s scope of duty does not extend into the airport. Airline not responsible for ALL ill
consequences associated with P availing himself of their services, only those that befall him
whilst he’s in their care.
5) Legal Custodian – and – Charge (Jailor/Prisoner)
6) Teacher – and – Student
7) Innkeeper – and – Guest
8) Shopkeeper – and – Visitor
9) Policy: People in special leadership roles (captain, innkeeper, common carrier) are in best position to
prevent the harm (they have specialized training and knowledge) and can easily be held liable,
defeating two main policy arguments against a general duty to rescue.
Duty to Warn Third Parties
1) R2T §315- An actor may owe a duty to protect someone from harm if their relationship with a third
party imposes a duty to warn the other of potential harm from the third party.
2) Therapist – and – Patient
a) Tarasoff v. Regents of University of California (Berkley): Therapists (D) have a special
relationship with their patients (R2T §315) which created a duty to warn the victim and her family
(P) when they believed that their patient would try to murder her.
i) “The protective privilege ends where public peril begins”
b) Policy:
i) Why this relationship?
(1) Therapists have the best access to info re: patient thoughts (lowest cost avoider)
(2) Therapists may be at a lower risk than others who might know of the murderous intentions
ii) Doctor’s Perspective:
(1) How do we balance reporting requirements and sufficient treatment/trust?
(2) When does the threat rise to the reporting threshold?
(a) Therapists do not trust that they can distinguish valid from empty threats.
c) Jurisdictional Split Duty to warn v. Duty to protect
i) Tarasoff implemented a duty to protect for therapists, must reach out to the possible victim
directly
ii) Other states have implemented only a duty to warn (must tell the police about valid threats,
increase oversight, etc)
3) Warning the Public
a) Thompson v. County of Alameda: There is no duty to warn third parties if the threat is not specific
enough to identify a discrete victim.
i) The warning would have had to go out to a very broad segment of the population, and a warning
would have interfered with policy interest of a fresh start after incarceration.
ii) Legislatures have responded to this ruling with statutes requiring notice (e.g. sex offender
registry)
Owners and Occupiers of Land
1) General Considerations:
a) Three characteristics that may create duties for “possessors” of land:
i) Dangerous Activities on the land.
ii) Dangerous defects/conditions that the possessor knows about.
iii) Dangerous defects/conditions that the possessor does not know about, but reasonably should.
b) Three classifications of people on the land:
i) Trespassers (those without permission)
ii) Temporary Licensees (Social guests and volunteers)
iii) Business invitees (customers, business partners, etc.)

Trespassers

§333. General Rule:

Except as stated in 334-339, a possessor of land is not liable to trespassers for physical harm caused by
his failure to exercise reasonable care
(a) to put the land in a condition reasonably safe for their recreation, or
(b) to carry on his activities so as not to endanger them.
 
§334. Activities Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know, that trespassers
constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them
by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care
for their safety.

§337. Artificial Conditions Highly Dangerous to Known Trespassers

A possessor of land who maintains on the land an artificial condition which involves a risk of death or
serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to
trespassers by his failure to exercise reasonable care to warn them of the condition if (a) the possessor
knows or has reason to know of their presence in dangerous proximity to the condition, and (b) the
condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize
the risk involved.

1) General rule (unknown trespasser)

a) R2T §333: possessors are not liable to trespassers for negligent harm from conditions or activities.
i) No duty to prepare land to make it safe for trespassers; no liability for failing to do so.
b) Haskins v. Grybko: Possessor’s duty to unknown trespassers is only to refrain from intentional
injury, or willful/wanton/reckless conduct (gross negligence). Not liable for simple negligence.
i) D shot trespasser P thinking the rustling was a woodchuck. Only duty D had to P was not to
intentionally injure him; no negligence possible with respect to unknown trespassers.
ii) But if this had been public land, D is probably liable for negligence.
2) Discovered Trespassers:
a) Herrick v. Wixom: When a possessor “discovers” a trespasser, then the possessor owes reasonable
care in their activities. Discovery = possessor knows of the trespasser’s presence (doesn’t need to
know they’re trespassing)
 i) “It is true that a trespasser who suffers an injury because of a dangerous condition of premises is
without remedy. But where a trespasser is discovered upon the premises… the danger to him
from a negligent act is known.”
ii) Man sneaks into circus without a ticket, injured, circus says no liability because he was
trespassing. You may not know someone’s a trespasser, but if you know someone is there, then
you have a duty not to negligently harm them.
(1) He was injured as part of the general audience, there was no link between his trespassing
and the circus’ duty to protect its audience.
3) Known/Constant Trespassers:
a) R2T §334: If a landowner knows or should know there is a constant stream of trespassers, he has a
duty not to carry out activities without reasonable care for their safety.
b) R2T. §337: Landowner that maintains an artificial condition they know involves risk of
death/serious bodily harm owes duty to warn trespassers if:
i) Landowner knows (or should know) they will come in dangerous proximity to the condition and
ii) Has reason to believe that trespassers would not discover the risk
c) Extension of “Attractive Nuisance” to adults, but with a higher bar for the trespasser (danger must
be hidden)
4) Children – Attractive Nuisance and Beyond
a) Keffe v. Milwaukee & St. Paul R. Co: If D had reason to know that a dangerous artificial condition
would attract children to play on it, then D owes a duty of reasonable care in eliminating the harm
(fence/lock/destruction)
i) Court finds that D knew of this habit of play and said D had “knowingly allured them to a place
of danger.”
b) Ryan v. Towar: If condition does not attract the children, but they find while trespassing because
kids are the worst, then attractive nuisance does not apply.
i) Invokes Hand Formula analysis discussing benefit of maintaining the condition/ precautions
balanced with effectiveness and cost of precautions.
(1) Court agrees it’s not worth people’s time to sue kids, so it’s not worth the cost of trying to
keep them out of dangerous places in any case.
c) R2T §339: (Rejecting Towar) Landowner liable when artificial condition harms children if:
i) Condition exists where owner knows (or should know) kids will likely trespass
ii) Owner knows (or should) the condition poses unreasonable risk of death/serious harm to kids
iii) Children do not realize the danger (because they’re young and dumb)
iv) The utility of maintaining the condition/burden of removal is low
v) Landowner does not exercise reasonable care to eliminate the danger
d) Rest. removes requirement that the condition attract the kids from outside the property
Licensees (Social Guests and Volunteers)
1) Activities
a) R2T §341: Owner owes licensees a duty of reasonable care in activities if:
i) Owner expects the licensee will not realize the danger and
ii) Licensee actually does not know (nor should) of the activities or risk.
2) Known Conditions
a) R2T §342: Owner must reasonably make a condition safe or warn licensees of the danger if:
i) Possessor knows of the condition and should realize the risk of harm and
ii) Possessor knows (or should) that licensees will not discover/realize the danger and
iii) Licenses actually does not know of the danger.
b) Owner may affirmatively disclaim duty to warn or remediate
3) Unknown Conditions
a) Davies v. McDowell: Owners do not owe a “reasonable duty to inspect” to their licensees and are
not generally liable for harm from defects the owner did not know about.
i) This was a social visit (so no liability to inspect property for hazards), despite the fact that the
parties had done some business and accident took place in a business office.
b) Lordi v. Spiotta: Owner improperly shutting off gas was “active negligence”, which made them
liable, even though they did not know of the defect.
i) D fails to turn off a gas heater used to heat water for baths; he instructs P’s decedent to go
downstairs and turn it on- the gas fumes explode when P strikes a match.
ii) Court distinguishes from Davies because of D’s affirmative act- “analogous to creating a trap
for P”
4) Licensees are owed:
a) Warnings about known hazards
b) Duty of reasonable care in affirmative acts
c) No duty to inspect property/remediate hazards.

Invitees (Customers and Business Guests)

1) Invitee Defined
a) R2T §332: Public invitees or business visitors
i) Public: person invited on land open to the public, for a purpose for which the land is held open
ii) Visitor: Person invited for a purpose directly/indirectly connected to possessor’s business
dealings.
b) Mattef v. Boca Raton: Someone who performs a business function on a property before
negotiations have concluded volunteers themselves and (at best) is a licensee.
i) Since he is not an invitee, he had to take the premises as he found them. City is not liable when
he falls from a broken ladder after deciding to go ahead and paint a water tower while his
contract with the city is pending.
c) McDonalds Bathroom/Window Shopper Hypo: Generally, anyone who enters a store open to the
public is a business invitee (even if they have no intention of shopping, they might buy something)
d) Jacobsma v. Goldberg’s Fashion Forum: Thief runs in P’s direction; D (manager) yells “stop,
thief!” and P is injured in attempting to stop the thief. Court finds D liable because thief had struck
days earlier and because P’s purpose was to benefit D, which sustained his status as invitee.
 i) Shoplifter was a known danger, he had been around the store before, the store had a duty to
warn or rectify it.
ii) This case contradicts Restatement, so unlikely to be useful.
iii) Both Jacobsma and Mattef have a sort of “implied contract” contemplated- liability here and not
Mattef because customer began as an invitee and was acting for economic benefit of the store,
not himself.
2) Activities
a) R2T §341A: Duty of reasonable care if
i) owner should expect invitees will not realize the danger and
ii) they do not so realize.
3) Conditions (Known and Unknown)
a) R2T §343: Liability for conditions if
i) Owners knows or should discover the condition and its risk of harm and
ii) Should expect invitees will not discover it and
iii) Fails to reasonably protect against the danger or warn of it.
4) Invitees are owed:
a) Warnings about known hazards
b) Duty of reasonable care
c) Affirmative duty to inspect and remediate hazards.
5) Policy:
a) Why different standards between Licensee and Invitee?
i) An invitee is a business guest and more likely to be strangers relative to the host
(1) Incentivizing strangers carries greater risk and numbers, so courts want to incentivize
maintenance of property in that field.
(2) Businesses may be more likely to cut corners on their property (no connection to patrons
except profit), probably not so with social guests/homes
(3) Businesses are typically better able to compensate
(4) Helps people go out in public/ onto private property and coordinate activity knowing that
others are striving for a standard of care they can rely upon.
ii) Lower standard for social guests (licensee) deferring to the private relationship
(1) Social responsibility might be enough on its own
(2) Don’t want to step on the toes of social expectation
(3) Social guests likely have more info about the home/owner than a customer
b) LR answer: Homeowners are likely sufficiently incentivized by their own living in the house, want
to put social guests on the same level as the owner themselves.
i) How diligent one wants to be is up to them, but once someone knows of an issue, likely that any
owners would correct it.
Breach of Duty of Reasonable Care (“Negligence Prong”)- (2)
The Reasonable Person Standard

R2T 283. Conduct of a Reasonable Man; The Standard

Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable man under like circumstances.

1) Objective Standard (Usually): Reasonable person is one of average intelligence/strength/etc.

a) Vaughn v. Menlove: having “lower than average” intelligence does not change the standard that D
is held against. Good Faith standard is expressly rejected.
i) Mismanaged haystack bursts into flames, damages property. Court rejects argument that he’s
dumb and didn’t know he was storing his hay wrong.
(1) Even if you’re doing your best, that might not be good enough for the law
b) Weirs v. Jones County: Illiteracy is not sufficient to alter the reasonable person standard.
Community standard is that a reasonable person could read or learn English.
i) County was not liable when man injured by condemned bridge that had English warning sign
2) Policy:
a) Rationale:
i) Overall Difficult to operationalize a purely subjective standard for every case.
ii) Administration fear that a subjective standard would lead to fraudulent claims that D should
have a lower standard of care.
iii) Behavior if everyone generally has the same standard, people know what to expect of other
humans, and how can mold their behaviors around that understanding.
iv) Deterrence encourages people to maintain a level of care and compliance that is well known.
People know societal standard and if they are living up to it (or not).
b) Issues – “Pockets of behavior”
i) Courts require a general objective standard, but many individuals will fall above or below that.
ii) Pockets of Immunity: People with higher intelligence/strength/etc. may be subjectively
“negligent” but not face liability because they met “reasonable person”
iii) Pockets of Strict Liability: People with lower intelligence/strength/etc. may fail to meet
“reasonable person” no matter how much care they subjectively gave.
3) Exceptions to Objective Standard:
a) Holmes – Distinct Defects: When a person has “distinct” disabilities that effect their capabilities in
certain areas, courts may sometimes relax the reasonable person standard as it pertains to those
areas. Measures of Distinctness:
(1) Discrete: can it be objectively measured? Can fraudulent claims be separated from valid
ones?
(2) Visibility: Can people understand how they should act/expect the person to act around them?
b) Mental Capacity – Must be severe. Generally unforgiving of mental disabilities.
i) Lynch v. Rosenthal: When D knows that P is severely mentally handicapped, he cannot fail to
warn P of a dangerous activity and then attempt to avoid liability on contributory negligence.
 Mental capacity may alter the reasonable person standard in contributory negligence defenses
(given certain facts). Important that D knew about P’s mental condition before accident.
c) Physical Ability
i) Davis v. Feinstein: A blind man with a cane has a “distinct defect” and his standard should be
that of a reasonable blind man. Reasonable blind man is not expected to discover everything a
sighted person would (e.g. an open cellar door), but the determination of the standard is up to
the trier of fact.
ii) Kerr v. Connecticut: A deaf man is still held to the same standard of a reasonable deaf person.
Failing to take any precautions in light of the disability indicates a failure to meet even the
adjusted standard.
d) Children
i) Dunn v. Teti: The reasonable person standard for children is a reasonable child that’s their age
ii) Presumptions: <7 = incapable of negligence, 7-14 = generally incapable but facts may show
capable of neg., >14 = generally capable but facts may show incapable of neg.
The Hand Formula – Failed Precautions
1) Most duty is to behave reasonably in actions, so negligence is usually framed as the failure to take a
certain precaution in your actions that a reasonable person would have taken. It is this failure to take
this precaution that caused the harm.
 Need to evaluate if failure to take precaution reasonable (not negligent) or unreasonable (negligent)
2) US v. Carroll Towing: (The Hand Formula) D is negligent in their failure to take a precaution if the
burden of taking the precaution would be outweighed by the reduction in harm expected to occur given
the precaution. Bargee away for 21 hours while barge floats away, is damaged, and sinks.
a) Cost of keeping bargee on board during hours would have been lower than PLLiable.
b) Formula: B < PL Negligent if B(urden)< P(robability) times L(oss)
i) B = burden/cost of taking the precaution at issue
ii) P = reduction in % likelihood of negative event occurrence under the alleged precaution.
iii) L = total cost of the expected negative event. (Consequences- level of harm at stake)
c) Policy:
i) Cost justified deterrence rationale (consider all the arguments against econ assumptions)
(1) Hand is not a hard econ rule, just a general input formula to think about precautions
ii) With very high Ls (like death), consider B not in terms of individual cost but in cost to society
of a given precaution
3) Hand Formula Applied
a) Adams v. Bullock: Loosely applying hand formula, D is not liable if a harm occurred due to
unforeseen activities (low PL), especially if the burden is very high (high B). Freak accident
i) Kid swinging wire hits tram and electrocuted. If P small enough ex ante, B may vanish
b) Eckert v. Long Island R. Co.: P is not contrib. when he tried to save a child believing there was a
chance he could survive: I.e., if L = 1 life, B <1 life, and P is some x such that B(<1) < 1x, then P
was reasonable to try and save.
c) Bolton v. Stone: D was not negligent in the fence height maintenance (though they might have
been) because the original probability of harm from a cricket ball was so low that it didn’t warrant
taking any precautions. Thus, B<PL can encourage parties to take an efficient level of precaution.
d) Note: Look at all of the risks that would have been reduced by the untaken precaution, not just the
reduced risk of the bad thing that happened in a specific circumstance.
4) Hand Formula Issues:
a) Marginal Analysis: the hand analysis must be compared to all other possible behaviors/precautions
(including no precaution). Was the behavior taken the most reasonable?
i) E.g. maybe a 7-foot fence still negligent if standard should be 10.
b) Durable Precautions and Compliance Errors:
i) Hand formula mostly deals with durable precautions Some safety measure that can be
implemented with a single decision (one payment, then risk is lower forever, e.g. fire escape)
ii) In contrast, compliance errors typically involve momentary failures to take repetitive
precautions with agreed upon standard (i.e. driver forgetting to look both ways).
iii) To eradicate all compliance errors would be difficult and thus “expensive” in terms of Hand
formula (perfect compliance is very burdensome, high B), so ok within hand analysis.
(1) BUT: once a behavior becomes that of a “reasonable person”, courts will expect that D
follows that standard in all cases. Any failure to comply with the precaution will result in
liability even if it was one of those rare lapses that even a careful person would commit.
Breach of Industry Custom
1) Custom Overview
a) Standard of Care established by the precautions customarily taken by the industry.
i) Substitute the analysis implicit in market forces for the BPL cost analysis?
ii) Custom as a sword and shield
(1) Sword: P sues D under theory that D failed to comply with industry custom higher than P
would otherwise be entitled to, and thus breached standard of care.
(2) Shield: P sues D under theory of negligence, but D defends on theory that they complied w/
custom lower than might otherwise be expected, and thus did not breach standard of care.
b) When do we use custom? (Jurisdictional Split) [Default: Custom is not dispositive; courts
determine their own reasonableness standard]
i) TJ Hooper: A business may be liable for failing to adopt new tech, even if industry has not
widely adopted it, if the use of the tech constitutes reasonable prudence. Courts may consider
custom as evidence of reasonableness but should rarely if ever be substituted as the standard and
is not a defense against a tort. (Most Jurisdictions Follow)
ii) Rhodi Yachts v. National Maritime: Whether to use custom to assign negligence depends on
which scenario the two parties fall in:
(1) P and D are “contractually” linked. (Custom)
(a) Market equilibrium represents an industry custom (safety/price balance) that the general
population has agreed upon.
(b) That custom should therefore be applied when there is harm to the customer, if they
don’t like it, they can pay more for a more cautious company.
(c) Competition itself will encourage firms to take cost-justified decisions, and the law
should interfere as little as possible to regulate this.
(i) In these cases, custom may get us to the same place as the hand formula.
(2) P is a “stranger” not connected to D (no custom)
(a) Because P did not have the opportunity to choose their harmer, there was no way for
them to decide what custom standard would be applied.
(i) Maybe social factors, but those aren’t direct supply/demand changes
(b) No market discipline here, and this is where the courts can help by applying the hand
formula (though there are reputational considerations as well for the firm).
c) Criticisms
i) Economics doesn’t actually reflect an agreed upon standard
(1) Perfect info assumptions
(2) Efficient market assumptions
ii) Does not consider insular (quasi-monopoly) markets
iii) How do you determine the start of a new custom v. a few companies deviating?
iv) If assumptions are violated, market forces may not work so cleanly, and D may be inclined to
cut some corners.
(1) Given concerns of this nature, not every court will entertain custom as a basis for setting
liability standards even in contractual scenarios.
2) Medical Malpractice – Largest exception to the general “no custom” rule
a) When medical professionals commit accidental harm during their professional work, courts defer to
the customary behavior in the field. Custom is essentially dispositive.
i) Policy: Why defer to custom here specifically?
(1) Medical field is complicated, and the stakes are high, court doesn’t want to risk getting it
wrong, and it’s hard for courts to do their own reasonableness analysis.
(2) Interactions with patient differ based on the individual (?)
(3) Courts defer to doctors because of their status (we like doctors)
(a) Society defers to their judgment
(b) The Hippocratic oath provides a strong, objective standard of ethical care (not just
supply/demand).
(4) Medicine is more of a profession than an industry, and courts can have more faith in its
ability to regulate itself because it’s not profit driven.
b) National/regional/local custom (Jurisdictional Split)
i) Brune v. Belinkoff: Standard is the custom in the field nationally (given access to resources);
Physician is required to exercise the degree of care and skill of the average qualified practitioner
nationally, taking into account the advances of the profession. (Majority Rule).
(1) Most courts have abandoned the historical local rule given the increasingly interconnected
status of the country, including more mobility and standardized medical education.
(a) Rural doctors can easily learn new information from centers of excellence, there’s no
longer an excuse for continuing to use a worse method.
ii) Gambill v. Stroud: Standard is custom in the “same or similar localities,” giving consideration
to geographical location, size, and character of the community, with similarity from the
standpoint of medical facilities, practices, and advantages (not population). (Minority Rule)
(1) P can attempt to show custom in other localities, must prove they are similar to the forum.
This helps avoid problem of expert witnesses not wanting to testify against other doctors.
c) “Medical Judgment” vs. “Resources”
i) Johnson v. Willis Memorial: Hospital resources and facilities (security/alarms/beds) are
assessed on a local level. Makes distinction between resource-based decisions and medical-
belief-based decisions, resources aside. More universal.
ii) Doctors can easily learn and adopt the best judgment and knowledge in the nation.
(1) Resources and technology vary by how much money a locality has.
d) Informed Consent
i) Half of states require disclosure of risks that are “customarily disclosed”
ii) Other half: Disclose what a “reasonable patient would find material”
3) Legal Malpractice
a) Cook v. Irion: Generally, legal malpractice is assessed at the State custom (each state bar regulates
behavior). However, some behavior (like litigation strategy) is assessed against local custom.
Negligence Per Se (Breach of Statute)
1) Overview:
a) The court determines that the defendant has violated some sort of rule, either statutory or judge
made, and the violation establishes the defendant’s violation as a matter of law (no jury trial).
i) Substitutes Standard of care for one set by legislature in a statute.
2) Elements:
a) D violated a statute;
b) P is member of class of persons the statute was designed to protect;
c) Intention of the statute is to impose a standard of care
d) P suffered harm of a type that the statute was designed to prevent;  Causation breaking the
statute has to be the cause of the accident.
i) Exceptions:
(1) Breaking the statute for safety purposes Not negligence per se; could still be contributory
negligence (Tedla v Ellman)
(2) Disconnect standard of care and statute no negligence. (Tingle v. Chicago)
3) Martin v. Herzog: When a statute requires an affirmative action, the failure to perform that action
constitutes a violation of a legal duty.
a) Headlight statute created a standard to avoid the exact kind of harm that occurred, violation shows
that D violated that standard as a matter of law.
4) Always ask: Was the violated statute relevant to the harm that occurred?
5) R2T §286: Court may adopt as the standard of care the requirements of a statute or administrative
regulation whose purpose is found to be exclusively or in part to:
a) Protect a class of persons which includes the one whose interest is invaded
b) Protect the particular interest which is invaded
c) Protect that interest against the kind of harm which has resulted, and
d) Protect that interest against the particular hazard from which the harm results.
6) Jurisdictional Split: Statute/harm: most (not all) states require that the statute be enacted to avoid the
harm which occurred.
a) Tingle v. Chicago: a law banning train operations on Sunday was enacted as a religious adherence,
not to avoid harm to grazing cattle. Violating that statute then is not per se.
i) Another view: did the violation fundamentally increase the likelihood of this type of harm
occurring?
ii) Counterpoint: reliance argument, P wouldn’t have let his cow roam near the tracks if he knew
trains would be operating.
b) White v. Levarn: the motivation for a law banning firearms on Sunday did not seem to matter
much, violating that statute was negligent per se.
7) Issues and Exceptions:
a) Tedla v. Ellman: (Beneficial Breach) Since the “left side of the road” statute would actually be
greater risk if the statute were adhered to, then the statute may be violated without breaching the
standard of care (reserved for extraordinary situations).
i) When the statute would not protect life and limb in all circumstances, then it should not be read
to eliminate historical common-law exceptions to negligence.
 ii) We want most reasonably safe outcome, and presumption that statute applies but not always
b) Selger v. Stevens Brothers: (Who is the statute’s duty to?) A statute requiring that store fronts
maintain sidewalks in front of their buildings creates a duty owed only to the city, not to anyone
who may be harmed by a dog poop not cleaned. Therefore, no per se.
i) Law requiring that someone pick up after their dog may come out differently. Have to think
about who the statute was enacted to benefit/protect.
c) Ignorance:
i) Ignorance of a statute is not a defense of negligence per se
ii) Ignorance that a statute had been violated (brake light burns out while D driving, no chance to
check before accident) may be a defense.
8) Policy:
a) Consider whether this violation increases likelihood of similar incidents.
b) Did injury occur because the injured party relied on others to observe the statute? (Tingle and the
Sunday train)
i) Split of Authority: Tingle and White- about whether breach of statute has to have nexus with
cause of action.
c) California, others, use breach of statute, as evidence of a breach of the background principles tested
by tort law.  Do we conceive of statutes as codifying common law or filling in its holes?
d) Exceptions: If you want to show good cause, your default will always be a Hand Formula analysis
of your conduct.
Res Ipsa Loquitur (“The Thing Speaks for Itself)
1) In cases where harm could not have occurred but for a breach of duty but there is no evidence (or way
of reasonably finding evidence) of that breach, an interference of culpability may be legally supported.
 Shifts Burden to D in some cases where P cannot show evidence of breach
2) Traditional Rule: P has the burden of proving by a preponderance of the evidence (more likely than
not (>50%)) that the elements of negligence have been satisfied
i) P may prove breach by direct or circumstantial evidence, but sometimes they do not have the
evidence required to show how specifically D breached the standard.
b) When the accident itself implies that D likely breached the standard somehow, then res ipsa
loquitur will shift the burden to D to prove that they were not negligent.
i) Allows P to survive SJ or JMOL in situations where evidence may be difficult to obtain but the
situation was clearly a result of some negligence.
c) Policy
i) D likely has better access to the evidence of their non-negligence than P would have of D’s
negligence (Bramwell’s point in Byrne)
ii) Fundamental distrust in the discovery process
iii) *Argument of last resort, generally*
3) Requirements for res ipsa loquitur
a) Accident most likely occurred because of D’s negligence (P(negligence | accident) >50%)
b) Caused by an instrumentality or agency under D’s exclusive control
c) Did not occur by any voluntary action or contribution by P.
i) If accepted, burden to show non-negligent explanation shifts to D
4) Not likely to occur without negligence
a) Byrne v. Boadle: A barrel of flour falling out of a window is not the kind of event that would
happen in a situation where D was not somehow negligent (+ D had exclusive control over barrel).
i) (Per Frakes) Framing: Given that the accident occurred, what is the likelihood that it occurred
from D’s negligence. Imagine 100 scenarios, how many of those would be N.
ii) *On exam, give arguments of stronger/weaker case for res ipsa relative to Byrne
b) Combustion Engineering v. Hunsberger: A tool falling from a hanging worker and landing on
someone is NOT the kind of accident that would not likely happen without negligence
i) (Per Frakes) language implies that >50% likelihood would lead to res ipsa, but really need
more than that. Courts often only apply in cases closer to 100% likelihood of negligence.
(1) If it is a toss-up defer to no res ipsa.
c) Hunsberger Hypos:
i) What if D dropped a cinderblock?
(1) More likely to be res ipsa, hand formula would expect more precaution taken with a
cinderblock, so more of the 100 scenarios would likely come from negligence
ii) What if the tool fell over a sidewalk?
(1) More likely res ipsa, expect other workers to be more cautious of falling objects than
pedestrians, so more of the 100 scenarios would come from negligence.
d) Guthrie v. Powell: A cow falling through the ceiling is not an event that happens without evidence.
 i) Likely could have said D was negligent in taking a cow to second floor, with its presence as
sufficient evidence. Res ipsa seals the deal, even if clear untaken precaution
e) Wilson v. Stillwill: Post-op infection in hospital with low-infection rate. No liability, rare harm with
some probability of non-negligent occurrence not sufficient for res ipsa.
5) Exclusive Control by D
a) Larson v. St. Francis Hotel: Because the patrons were the ones who through the furniture out the
window, D did not have exclusive control over the furniture.
i) Spontaneity of celebration (unforeseeability), burden of monitoring guests is too great.
ii) But D likely had a duty to watch their patrons, would this accident be evidence of that failure?
(1) Likely would not pass the first test of res ipsa (probably not the kind of thing that would not
happen without negligence)
b) Joint Control (Ybarra rule) – Actual D is hidden in a group.
i) Ybarra rule: When D is unknown Apply res ipsa to all possible Ds when
(1) They are in a position to observe the care taken by the others.
(2) There is a concern that they will conspire to remain silent.
(3) The smaller the group, the more likely the rule will apply.
(4) All possible Ds must be named
ii) Ybarra v. Spangard: When P receives injuries and cannot determine the single wrongdoer (due
to unconsciousness during medical treatment), all Ds who at some point had control over D or
over the instruments that may have caused the injury will be subject to liability under res ipsa.
(1) Policy: Rationale for applying res ipsa here
(a) Fairness consideration for P who cannot determine the true culprit.
(b) Want to incentivize/compel the innocent Ds to exculpate themselves by identifying the
real wrongdoer.
(i) Fear that these doctors or others who work together would otherwise stay silent,
killing Ps case.
(ii) Don’t want case where no D tells what went wrong, thus leaving no evidence. Res
ipsa should smoke them out by creating a presumption that they’re all negligent.
(iii) Smoking out function will only work here because Ds were all in a position
to observe each other. Weaker argument for res ipsa if not the case.
iii) Wolf v. American Tract: (Need all Ds) Ybarra rule does not apply when the group of Ds does
not represent all the possible wrongdoers (e.g. suing only 2 of 19 subcontractors on the building
when the brick fell is not sufficient). Seems unfair alongside being functionally problematic.
iv) Actiesselkabet Ingrid v. Central R. Co. NJ: (No Conspiracy need all Ds) Because the explosion
could have been caused by individuals not named in the suit (the powder company/packing
company), the Ybarra rule does not apply.
v) Bond v. Otis: (Conspiracy) Because the 2 Ds had a contract which stipulated each was
responsible for certain upkeep functions and it is unclear which negligent upkeep caused the
harm, both Ds can be sued under Ybarra rule.
(1) Joint control of elevator, shifting burden to D only way to figure out who was negligent.
vi) Samson v. Riesing: (No Conspiracy) because all the neighbors made their own turkey salad,
they are in no better position to point out the true wrong doer, so the Ybarra rule would not be
appropriate. Bad case for res ipsa, 1/9 likelihood of liability is far less than 50%.
6) Factors to look for in “Whodunnit” Scenarios (Ybarra Factors)
a) Are the various D’s in a position to be able to observe the care taken by the others?
b) Do we have a concern over a conspiracy of silence among them? (e.g. do they frequently work
together in teams?)
c) Number of parties (the smaller the better)!
7) Issues in res ipsa loquitur
a) Destruction of evidence and Equality of Ignorance
i) Judson v. Giant Powder Co.: When the evidence of possible negligence is destroyed in the
accident (like when an explosives factory explodes) then courts will err on the side of allowing
res ipsa as D should not be exonerated just because all the evidence is destroyed.
(1) Modern courts would probably say abnormally dangerous activity and apply SL instead.
ii) Haasmen v. Pacific Alaska Air Express: Planes don’t just fall out of the sky, the fact that the
plane can’t be recovered is irrelevant.
(1) When both P and D have equal knowledge or access to evidence, then res ipsa likely won’t
apply.
(2) Does not work in the reverse, res ipsa still applies when both parties lack the
knowledge/access. Equality of ignorance will not preclude application of doctrine.
iii) Cases cut against the policy belief that D must have better access to evidence, but when it
satisfies requirement (1) and the evidence has been destroyed by that accident, courts are ok
with imposing default liability on D.
b) The perils of the sea
i) Walston v. Lambertsen: res ipsa does not apply to a ship’s sinking. The sea may become
treacherous without warning and take even the best maintained ships. Unseaworthiness must be
at the time the ship set sail. (apply res ipsa to planes, not to ships)
(1) Accidents in areas with most safety equipment are the strongest res ipsa cases.
(2) L in boat situations is arguably lower relative to air travel, because passengers/crew often
survive boat accidents.
Causation (3)
Cause in Fact
 Negligence liability requires that the actor’s breach of duty be the cause in fact, or actual cause of
the injury.
But-for Causation
1) Overview
a) If breach of duty is established, P must then show injury caused by- or would not have occurred
“but for”- that breach.
i) “But for D’s negligence, this harm would not have likely occurred.”
b) But-For Test: The breach is an actual cause if the harm would not have transpired without the
actor’s breach of duty.
i) Better way to think about this is “given the harm it is more likely than not it was caused by the
negligence of the defendant.”
c) P has the burden of establishing causation by a preponderance of the evidence- more likely than not,
the cause of injury was D’s negligence.
i) That is, the chance that the injury was caused by D’s negligence >50%.
2) “Cause-in-Fact” Framework
a) P’s Harm comes from two sources:
i) Background Risk – baseline risk inherent in the activity undertaken (X% likelihood of harm)
ii) Negligence Risk – Additional risk added by D’s breach (Y% likelihood of harm)
b) Impossible to tell what risk caused the harm, but if Y% is greater than ½ the total risk (i.e. if Y% >
X%) then but-for causation satisfied
c) Normally: since but-for causation requires that Y% more than doubles the total risk, can’t have
causation if the underlying risk of harm is already greater than 50%
i) Causation informed by how the breach is framed. If the standard articulated changes, then X and
Y% change.
3) NY Central R.R. v. Grimstad: A defendant will not be liable for injury for injury suffered by a plaintiff
unless the defendant’s actions are the actual cause of the injury.
a) D‘s breach must “more likely than not” have caused the harm. P’s inability to swim made it more
than likely that he would die even without the negligent lack of life preservers. No evidentiary basis
to establish lack of buoy was the cause in fact of the death.
4) Loss of Chance Doctrine
a) Loss of Chance Doctrine allows a plaintiff to obtain damages from a defendant for a heightened
risk of death or injury, even if the plaintiff cannot prove by a preponderance of the evidence that the
ultimate injury was caused by defendant’s negligence (missed diagnosis and increased staging).
i) Damages limited to reflect the shared risk (courts take different approaches to limit the
damages)
b) Deals with situations where the background risk is greater than 50%- per our rule, that can’t be
doubled, so it makes an exception to the “preponderance rule” out of mathematical convenience.
i) An exception- partly explained by deterrence rationale to encourage diligent diagnosis practices.
Used sparingly, mostly in medical contexts.
 ii) A missed diagnosis is a type of negligence that typically is most consequential when the risk of
dying is already relatively high and gets higher. This exception is used when we want to deter
negligent conduct that takes place where the background risk is already sufficiently high.
c) Herskovits v. Group Health Co-Op: In a wrongful death action, proof that a defendant’s conduct
increased the risk by decreasing the chances of survival of a plaintiff is sufficient as to the issue of
proximate cause.
i) P’s decedent dies after Dr doesn’t catch lung cancer until it had progressed to stage 2. There
was a 39% 5-year survival chance if caught when P first presented coughs; 25% chance when it
finally was caught.
ii) Court finds cause even though chance of survival was under 50% in either case- otherwise any
time a patient’s chance of survival was less than that, Drs couldn’t be found liable even if
flagrantly negligent.
iii) Concurrence says how we conceive of the injury affects the analysis: If it is defined as
INCREASE in chance of death, then this is a very easy case.
(1) Proposes remedy starting at 39% of value of losing that life (with potential to be adjusted
upward)
d) Policy: Exception to address what the court saw as frequent malpractice that could not be
compensated because of the position patients were in to begin with (public law activity within
private tort realm).
e) If harm unrelated to risk, then traditional causation applies.
i) Hypo: doctor kills Herskovits P on operating table. 80% chance of death from cancer doesn’t
absolve negligent operation that kills P by rupturing artery. Damages (e.g. future earnings)
likely would be adjusted.

Alternative Liability
1) Overview
a) Traditionally, P must show by preponderance of the evidence that D caused the harm.
b) When multiple Ds were negligent and may have caused the harm and P cannot determine which it
was, exceptions may shift the burden to the Ds (like res ipsa loquitur)
c) Thus, Alternative Liability applies if:
i) Multiple actors were negligent
ii) At least one of the actor’s caused the victim’s harm, and
iii)It is impossible to tell which actor’s negligence caused the harm.
d) Note: liability here means “reaches jury”/” survives SJ” even in absence of a cause in fact.
e) If a fact pattern doesn’t align closely with these exceptions, it might simply mean no recovery for
lack of preponderance of the evidence (as it relates to “cause” element).
2) Summers Rule – Multiple Ds similarly negligent but can’t show which one caused the harm
a) All Ds had to have been negligent to hold parties jointly liable when precise cause in fact is
unknown.
b) Summers v. Tice: When two Ds were both negligent (shooting in P’s direction) but it is unclear
which D actually shot P, both are presumed liable.
 i) The burden at trial will shift to each negligent defendant to show that his negligence did not
cause the injury. Each defendant who fails to make that showing will be held liable.
(1) Both were in the wrong, so we’re comfortable holding both liable even in absence of
evidence which of the two actually caused the harm.
ii) The lower the number of Ds, the more likely Summers will apply
iii) Distinct from Ybarra rule, where one person in a group was negligent and Ds weren’t alleged
to have acted together- but both put burden on defendants to absolve themselves.
(1) If there’s a similar fact pattern to Summers, but only one of the Ds was negligent, may be
able to apply Ybarra factors
c) R2T §433: All Ds must have been negligent in a way that could have caused the harm.
d) Litzman v. Humboldt County: Although only one D ultimately left the firework out, both Ds
negligent in maintaining/tracking (since neither could say for sure it wasn’t theirs).
3) Jurisdictional Split Multiple sources (each sufficient) converging to cause the harm
a) Majority: P can recover against any identifiable negligent Ds upon a finding by the jury that Ds
negligence was a “substantial factor” in bringing about the harm.
b) (Minority) Kingston v. Chicago: If D can show that one source of fire was non-negligent then P
cannot recover. Fails “but-for” test because harm would have occurred either way
4) Market Share Liability
a) Sindell v. Abott Laboratories: In very specific situations (almost exclusively drug manufacture)
where the specific D cannot be identified, multiple Ds may be presumed liable and forced to pay %
of damages in relation to their market share of the product at the time of the harm.
i) Distinct in that Ds in this case are not in any better position to show what caused the harm-
equality of ignorance. But deterrence effect salutary where it’s known a harm would be
difficult to trace back to a single party.
b) Requirements for Sindell market share liability:
(1) Time Lapse
(2) Inability to identify manufacturer
(3) Identical chemical formulations
(4) Signature disease (this is a rarity)
c) Policy:
i) Pro-Market Share Method
(1) In these situations, the Ds in total caused (almost) all the harm. If we apply damages in each
case based on market share, eventually all Ds will be held proportionally responsible.
(2) Deterrence Though usually private, tort law is sometimes concerned with
public/regulatory issues.
ii) Anti-Market Share
(1) Institutional Competency legislatures are better suited for large scale regulation
d) Jurisdictional Split: Issues in application:
i) Which market to use (National v. Local to the area of the harm)? [Majority: National]
ii) When allocating damage, base it on total market share or market share among the group? (e.g.
50% of the 90% represented)
Proximate Cause
 The proximate-cause requirement ensures that the actor’s conduct is sufficiently related to the harm
to justify imposing liability.
o Essentially amounts to whether the injuries were too remote a result of the negligence to
permit recovery.
 Less concerned with the literal “cause” and more with remaining factors that help us decide whether
it makes logical/policy sense to impose liability for a particular harm.
 For D to be liable, there must be some logical connection between the breach and the harm, such
that the breach proximately caused the harm
 Question of FACT

§29. Limitations on Liability for Tortious Conduct (R3T)

An actor’s liability is limited to those physical harms that result from the risks that made the actor’s
conduct tortious.

§ 457. Additional Harm Resulting from Efforts to Mitigate Harm Caused by Negligence (R2T)
If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional
bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury
reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.

§ 460. Subsequent Accidents Due to Impaired Physical Condition Caused by Negligence (R2T)
If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the
actor is also liable for harm sustained in a subsequent accident which would not have occurred had the
other’s condition not been impaired, and which is a normal consequence of such impairment.

Illustration 1. Through the negligence of A, a collision occurs in which B’s right leg is fractured. B is
confined to a hospital for two months. At the end of that time, he is permitted by his surgeon to walk on
crutches, and while he is doing so, with all reasonable care, he falls and suffers a fracture of his left arm.
A’s negligence is a legal cause of the second injury.

Foreseeability and Remoteness

1) Main question:
a) Was the harm that occurred the kind of harm contemplated when determining the standard of care?
(was the behavior reasonable because it reduced the risk of this occurring?)
i) The extent or likelihood of the harm are not important.
2) Hand Formula Analysis
a) When calculating B>PL, we add (P1 x L1) + (P2 x L2) + (P3 x L3) to get total PL (the sum of all
contemplated risks and their possibilities).
b) If the harm suffered was not part of that Hand Formula analysis, then it is unlikely there is
proximate cause.
3) Historical Doctrine
a) In Re Polemis- Rejects the above formulation. Only requires that the negligence caused harm with
sufficient “directness” and not from the operation of independent causes.
b) Does not reflect modern rule but gives sense of the alternative.
4) Framing Breach to Change Foreseeability
a) Wagon Mounds (1 & 2)
 i) Wagon Mound 1: If P (boathouse owners) argued that the risk of later fire was a contemplated
risk of the oil spill, then they likely would have been contributorily negligent. Since they
couldn’t argue that, the court could not find that the articulated breach proximately caused the
fire.
ii) Wagon Mound 2: Since P (boat owner) could (and did) argue that the later fire was a
foreseeable result of an oil spill, the breach they articulated did proximately cause
b) Hypos: P wants to frame the contemplated harm as broadly as possible (e.g. bodily harm), D wants
to narrow as much as possible (e.g. poisoning only). Did D’s actions fundamentally increase the
likelihood of this harm occurring?
i) Unmarked rat poison near flour which falls on P’s foot (likely not PxC)
(1) Breach: failure to label.
(2) P: label meant to protect against harm generally.
(3) D: label meant to protect only against accidental ingestion (harm would have occurred even
if labelled).
ii) P skids on ice and hits D blocking fire-hydrant (likely not PxC).
(1) Breach: Per se to block fire-hydrant (will be per se only if there is PxC).
(2) P: not blocking fire hydrants is to give access to anyone.
(3) D: not blocking fire hydrants is to give access only to fire department if there is a fire
(would still have happened if there was no fire hydrant).
iii) Falling tree lands on trolley as it speeds by, causing injury (likely not PxC, maybe could argue
ability to see/avoid).
(1) Breach: Speeding might be per se (again, only per se if PxC)
(2) P: not speeding protects against accidents and harm, it gives driver more opportunity to see
and avoid hazards.
(3) D: not speeding is to protect against driver hitting something, not something hitting driver.
Speeding put the trolley in that place on earth when the tree fell, but if it ended up there
without speeding the harm would likely have been the same.
(4) Harm issues: If speed created injury where there otherwise wouldn’t have been, maybe
different negligence with PxC. Generally, have to show PxC before discussing what harm D
would be liable for.
5) Type vs. Extent – only type of harm needs to be contemplated, but sometimes difficult to distinguish
a) Petition of Kinsman Transit: When requiring reasonable maintenance of a “dead man post”, one of
the contemplated risks is that the boat will break free and cause damage. The damage here (flooded
buildings) is from that risk. D is liable, foreseeable types of harm.
i) D’s tried to argue only contemplated harm from direct contact but court rejects.
ii) Note: rejects Wagon Mound foreseeability principle but qualifies Polemis directness principle.
iii) Some liability given to dock-owner (for an insecure dead man post) because even though scope
of danger was unforeseeable, the damage was of type that made the risk taken by D negligent.
b) Doughty v. Turner: A chemical reaction that causes hot liquid to fly out of a cauldron is a
completely different type of harm from a splash caused by the lid first falling into the liquid (as
opposed to just a “bigger” splash)
i) Court thought explosion was not a foreseeable type of harm; “Different forces” at work.
ii) Explosion did not happen until minutes after the lid fell in, so separate from splash.
 c) Colonial Inn Motor Lodge v. Gay: Contemplated risk from hitting a building is damage to that
building, gas lines are frequently outside, a jury should decide whether this type of harm was
foreseeable. If hitting a gas line is foreseeable then the fire was proximately caused (eggshell skull
applied to PxC)
d) DiPonzo v. Riordan: A policy requiring people to turn off their cars at a gas station is meant to
protect other customers from the risk of fire, not from possibly running them over.
i) D was sued for failing to enforce engine shut-off policy at its gas pumps when car left running
rolls forward and injures P while unattended. No liability for gas station because this was not
among hazards naturally associated with leaving car engine running while pumping gas.
e) Policy:
i) Some connection here with “eggshell skull”/ “taking plaintiff as you find him”
(1) If type formulation in Petition of Kinsman is “damage to neighboring properties,” then you
are liable for that damage, even if your neighboring properties are unusually vulnerable to
damage.
(2) Ideas is that there will be some plaintiffs who are unusually robust/others who are unusually
fragile, and that this will balance out over time.
6) Attenuation of the Chain of Events
a) United Novelty Co. v. Daniels: (Inciting act) Making an employee clean with gasoline in a room
with a furnace is negligent because of the fear it will cause injury by fire.
i) Was the type of harm (and caused by the same force) that made the D negligent for sending the
employee into that room with the gas.
ii) Fact that the risk materialized in a crazy way (flaming rat) does not absolve D of liability and is
irrelevant. General risk of such a circumstance was so high that if it weren’t the rat it would
have been something else.
b) Steinhauser v. Hertz Corp.: P’s mental condition making her more prone to psychosis does not
absolve P of liability for harm since it is contemplated that anyone might have mental trauma from a
car accident.
i) Likely “eggshell skull” liability here if sufficient cause in fact shown between crash and
psychosis.
c) Central Georgia RR Co. v. Price: This faulty lamp would have caused a fire no matter how P ended
up staying in the hotel room. Therefore, D’s negligence in missing P’s stop did not proximately
cause these injuries.
i) Injuries not “natural and proximate consequences” of carrying P beyond station; no relation
between harm and background risk of negligence.
7) Further Harm in Attempt to Aid
a) R2T §457: D is liable to P for additional harms resulting from normal efforts of third parties
rendering aid, even if negligent (so long as it’s “normal” and not grossly negligent)
b) Pridham v. Cash and Cary Building: D’s negligence left P in a state requiring medical treatment.
It’s foreseeable that (due to the imperfect nature of treatment) P may suffer further injury during
reasonable attempts to aid him, so D is also liable for the further harm in the ambulance accident.
i) Hypo: What if P takes an uber to the hospital? Is it more like Pridham or Central GA?
Intervening Causes

448. Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor’s Negligence.
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to
another resulting therefore, although the actor’s negligent conduct created a situation which afforded an
opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent
conduct realized or should have realized the likelihood that such a situation might be created, and that a
third person might avail himself of the opportunity to commit such a tort or crime.

449. Tortious or Criminal Acts the Probability of Which Makes Actor’s Conduct Negligent
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which
makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does
not prevent the actor from being liable for harm caused thereby.

1) Overview:
a) Sometimes chain of events from D’s negligence to P’s harm involves the actions of some third
party. Third party actions MAY break proximate causation (but not always)
b) Rule:
i) No liability for first actor if their act creates an opportunity for a third person to commit a tort or
crime unless the first actor, at time of breach, realized or should have realized the likelihood of
such a situation arising.
c) Key Question:
i) At what point do we say this intervening act cuts off D’s liability and negates proximate
causation (i.e., at what point does it become a superseding cause)?
d) Overarching Principle:
i) Continue to apply foreseeability analysis. Was the act of a third-party intervener a foreseeable
consequence from D’s initial act of negligence?
2) Intentional Torts/Crimes
a) Were the Third-Party Acts Foreseeable/Contemplated?
i) R2T §449: If the risk of an act/crime/tort against P by a third party was contemplated in setting
standard of care, then D will be liable.
(1) If the act is direct proximate cause of D’s negligence (vs. a result of the negligence) then
obviously proximate cause between negligence and harm.
b) Did D create an environment around P that was “especially enticing”?
i) R2T §448: D is not liable for crimes/intentional torts of others unless at the time of D’s
negligence they knew that they would leave P in a position that would increase 3rd parties’
opportunity to commit a crime/tort and that someone might avail themselves of that opportunity.
3) Cases
a) Brauer v. NY Central RR Co.: D should have known that they increased the opportunity for people
to steal P’s goods, and that they would likely take advantage of that situation (indeed the had their
own guards for that reason), therefore proximate cause is not broken for the stolen goods.
i) “Intervening and contributing an effect necessary to the injurious effect of the original
negligence will not excuse the first wrongdoer if such an act ought to have been foreseen.”
 b) Village of Carterville v. Cook: It is contemplated that people might bump into each other while
walking on a sidewalk, that occurrence doesn’t break proximate cause between negligent lack of a
railing and P’s injury.
c) Alexander v. Town of Newcastle: It is not reasonably contemplated that someone will throw
another person into a pit, third party action there breaks proximate cause between negligent
maintenance of the pit and P’s injury.
d) Watson v. Kentucky & Indian Bridge RR Co.: The risk that someone would (even negligently)
innocently ignite spilled gasoline while putting out a match is one of the harms contemplated in
establishing reasonable care of not spilling the gasoline.
i) Whether the ignition was innocent or intentional is a question for the jury. Thus, liability
depends on facts/determination of motive of intervening causer.
(1) If not intentional, railroad is liable.
(2) Someone intentionally going and igniting the gas does not fall under §449.
(a) Gas on the street did not create an enticing opportunity. Arsonists will commit arson
wherever whereas someone thinking about stealing may not do it until it becomes easy.
e) Palsgraf v. Long Island Railroad: (Unforeseeable P) P must be within the “zone-of-danger” for the
harm to be proximately caused by the danger. D’s negligence (pushing the man on the train) might
have harmed the man or his property and might rarely have harmed other people near the train, but
P on the other side of the station was outside of the zone of danger as contemplated by D at the time
of the negligence.
4) Policy:
a) The primary harm must have some connection to the secondary harm- such as making it easier/more
likely to occur.
i) In Brauer, theft was made more likely, but not, e.g. murder.
5) Did D’s Negligence Inherently Increase the Risk of the Type of Harm?
a) The Roman Prince: If the woman fled the boat immediately and was harmed then, proximate cause
would exist, but because she waited and then fell while slowly exiting proximate cause was broken.
i) The woman might not have tripped if she had exited the boat in a timely manner.
6) Self-Preservation by Third Parties
a) Scott v. Shepherd: (the Squib case) When D tosses a lighted firecracker (squib) into a crowd, the
acts of self-preservation by third parties (knocking a firecracker away and towards someone else) do
not break the proximate cause between the D creating the danger and the P ultimately harmed.
i) “Look upon all that was done subsequent to the original throwing as a continuation of the first
force and first act, which will continue till the firecracker was spent by bursting.”
ii) The intervening causes (people throwing the firecracker away from them) were automatic…
people were acting in self-preservation and could not have done differently.
Defenses to Negligence
1) A defendant sued for negligently inflicting harm will often attempt to fend off the claim by pointing to
various features of the plaintiff’s own conduct. Such defenses can be broadly divided into two
categories:
a) Claims that the plaintiff was negligent (Affirmative Defenses)
i) Contributory/Comparative Negligence
b) Claims that the plaintiff assumed the risk of the harm that occurred.
i) Claims that the plaintiff expressly assumed the risk by agreement
ii) Claims that defendant had no duty to protect the plaintiff from the harm suffered because the
risk of it was inherent in an activity the plaintiff chose to undertake; and
iii) Claims that the plaintiff chose to encounter a risk negligently created by the defendant. These
are now rarely invoked and perhaps just handled via comparative/contributory negligence.

Contributory and Comparative Negligence

1) Overview
a) Affirmative Defenses – P was also negligent, so D shouldn’t pay (or at least pay less)
b) Most jurisdictions have replaced contributory negligence in favor of comparative negligence
c) Contributory Negligence- Any negligence from P bars recovery
d) Comparative Negligence- Allocating damages based on the comparative negligence (question of
fact)
2) Contributory Negligence- The traditional common law rule was that plaintiffs whose own negligence
contributed to their injuries generally could not recover anything from defendants whose negligence
also contributed to them
a) All or nothing in nature- rather harsh
b) Began to be mitigated by juries, judicial discretion.
i) Could have lower standard of care for P
ii) Last Clear Chance Doctrine- P could recover despite being contributorily negligent if D had a
sufficiently good opportunity to avoid the accident at a point when P did not.
(1) These doctrines got relatively complicated, and are largely an artifact today (precursor to
comparative negligence)
c) Harris v. Meadows: P may not recover against D negligently turning left into oncoming traffic
because P was negligent in not attempting to stop. Contributory negligence in not “breaking as hard
as she could have” to avoid collision.
d) Policy:
i) Pros:
(1) Don’t want to force D to pay when fault shared (justice)
(2) Incentivize P to avoid their own harm and not use it for recovery
ii) Cons:
(1) Unfair to bar recovery on 1% negligence (Drunk driver/taillight hypo)
(2) Incentive rationale doesn’t hold (No one wants to be D so will already avoid negligence,
contrib. incentivizes more risky behavior)
(a) Negligence system sufficiently induces parties to take precautions (reasonable care)
 (3) Most juries/courts implemented “shadow” comparative negligence already
(a) Finding no contrib. if P’s negligence was low.
(b) Creating doctrinal workarounds (last clear chance, and proximate cause issues)
e) By first half of 20th Century most states moved away from contributory negligence
3) Comparative Negligence- Reduce the damages paid to a negligent defendant but do not prevent
recovery altogether.
a) McIntyre v. Balentine: Tractor/truck collusion in which D was intoxicated but P had been
speeding. Jury finds equal fault under contributory negligence regime. Tennessee has to decide
whether to adopt comparative negligence regime- Adopts modified comparative (“less at fault”)
negligence system, so P is able to recover in 50/50 cases like this one.
i) “So long as P’s negligence remains less than D’s negligence P may recover; in such a case, P’s
damages are to be reduced in proportion to the percentage of total negligence attributable to P.”
b) Three approaches to comparative negligence (Jurisdictional Split)
i) Pure Comparative: if D is negligent, P can recover with damages reduced by P’s fault
(1) (e.g. if P 90% at fault for $100 damages, can still recover $10)
ii) “Not Greater Than” Modification: P can only recover if they are “not more at fault” than D.
(1) 50% rule. (i.e. less than or equal to 50%). Damages reduced by P’s fault. [Majority]
iii) “Less than” Modification: P can only recover if they are “less at fault” than D
(1) (i.e. less than 50%). Damages reduced by P’s fault.
c) Issues in Comparative Negligence
i) Breaking a Tie – “Not More” vs. “Less”
(1) Juries will frequently decide “50/50” allocation as an anchor when they can’t decide who is
more at fault (even though in actuality one party likely is more at fault)
(a) The two modifications result in significantly more variation than the 1% fault would
imply, because jury guesses tend to cluster around 50/50, instinctively.
(2) States decisions of whether to award damages in “50/50” situations reflect whether they are
more comfortable with an at fault P recovering (false positive) or with an at fault D avoiding
liability (false negative)
ii) Comparing negligence – allocating fault
(1) What is being allocated? (Jurisdictional Split)
(a) (Majority) Amount of negligence – what act was “worse”
(b) Causation – whose actions explain most of the damage
(2) Difficult to weigh D’s “failure to warn” and P’s negligent behavior leading to harm.
4) Exceptions – in some situations, P can either (1) recover fully, or (2) not recover at all
a) Oullette v. Carde: A rescuer may recover fully for any harm that D causes (while they are
rescuing D). Court says rescue attempts should be protected unless “rash and reckless.”
b) (Med Mal) P’s negligence leading to their needing aid does not change a Dr.’s Duty to them.
(1) Policy: Courts are interested in imposing a uniform standard on care owed to patients in the
medical community.
(a) Standard of care should not change based on the reason bringing patients to Dr.
ii) Fritts v. McKinne: The fact that P’s negligent drunk driving lead to his needing facial surgery
does not change the doctor’s duty to avoid hitting an artery in surgery.
 iii) Van Vacter v. Heirholzer: P’s negligent refusal to take medication that would lower his risk of
heart attack does not change D’s negligence in missing the heart attack diagnosis at the hospital.
c) Alami v. Volkswagon: P’s negligent drunk driving does not bar them from recovery on a defective
design that increased their harm, BUT (unlike Fritts) comparative negligence does apply.
i) Unlike in Fritts no fear of differing standards of care based on how patient ended up in the
situation, D doesn’t know how P will crash.
ii) No logical connection between the negligence causing the accident and the defect that made it
worse. Liabilities are balanced- P recovers but not as much.
d) Manning v. Brown: no recovery for injuries occurring during the joint commission of a serious
criminal act (joyriding without licenses).
i) D’s breach must directly relate to the serious criminal act  Not that a bad person can’t sue
someone else, but that they can’t do so where the harm arises from that bad act.
(1) (Robbery Hypo) fleeing police after a robbery likely falls in the exception but driving away
with no pursuit may not.
ii) Policy: One should not profit from their own wrongdoing

Assumption of the Risk

§496B. Express Assumption of Risk:

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the
defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as
contrary to public policy.

Comment d. General clauses exempting the defendant from all liability for loss or damage will not be
construed to include loss or damage resulting from his intentional, negligent, or reckless misconduct, unless
the circumstances clearly indicate that such was the plaintiff’s understanding and intention.

1) Overview
a) When successful, these arguments by D completely bar P’s recovery
b) Instead of being a situation where D breached their duty and P was also negligent, here we say that
D owed no duty to P in the first place.
c) Express Assumption of Risk- P assumed risk by formal agreement.
d) Implied/Primary Assumption of Risk- D had no duty to protect P from harm because risk of harm
was inherent in an activity that P chose to undertake.
e) Secondary Assumption of Risk- P choses unreasonably to encounter a risk that was negligently
created by D.
i) These are now rarely invoked and perhaps just handled via comparative/contributory
negligence.
2) Express Assumption – Liability Waivers
a) Ds can have Ps expressly assume the risk of harm, even from negligence. Document must (a)
specifically state the assumption includes harm from D’s negligence, and (b) it must be shown that
P had a meaningful choice in signing the waiver.
i) Policy: pros/cons of express assumptions of risk/waivers of liability.
(1) Pros – Largely rely on free-market arguments
 (a) Individuals have individual risk acceptance/cost considerations, waivers let different Ps
make different choices.
(b) Waivers provide clarity to D business about what they can/cannot be hailed to court for.
(c) Can’t apply the hand formula because B is usually “decreased fun” hard to analyze
objectively, better to let each individual do it.
(2) Cons – The free-market does not work
(a) General arguments against free market economics
(b) Ps don’t have good risk assessment (psychology not econ)
ii) Courts will sometimes consider industry custom in deciding whether to allow waivers.
b) Clarity of Language
i) Van Tuyn v. Zurich American Ins. Co.: Waiver for riding mechanical bull must explicitly state
that P will not sue for “harm caused by negligence”. The blanket statement assuming “any and
all risk” does not sufficiently assume risk from D’s own negligence, so P can recover.
ii) Manning v. Brannon: P can assume liability for simple negligence if (a) the waiver has clear
and explicit language, and (b) the waiver is not against public policy.
iii) (Jurisdictional Split) Gross Negligence:
(1) (Majority) Most Jurisdictions do not allow waiver of gross negligence
(2) Few Jurisdictions allow for gross negligence waiver if that is explicit as well
c) Meaningful Choice – Could P have avoided this waiver?
i) Manning v. Brannon (cont.): Sometimes “meaningful choice” is whether to even engage in the
unnecessary activity (e.g. skydiving)
ii) Anderson v. Erie R.R. Co.: The fact that this waiver was exchanged for consideration (reduced
fair) supports the idea that P meaningfully choose to assume the risk. If he wanted to be able to
sue, he could have paid full price.
(1) Because this ticket was not available to everyone, fears that D would cut corners are low
(most still can sue) and the choice is not illusory (if the option was public, fear D would jack
up the regular price).
(2) Key is P’s meaningful bargaining power, and the fact that D still exposed to liability for
most passengers. If everyone had waived liability, wouldn’t have market discipline.
iii) Tunkl v. Reagents of University of California: Is the waiver P signed upon being admitted
enforceable? Service was essential, compulsory assumption of risk not OK.
(1) Tunkl Test:6 factor weighing test for determining to reject the waiver on public policy
grounds (lack of “meaningful choice”) “Was this TRULY voluntary?”
(a) D’s business is of the type generally thought suitable for public regulation
(b) D performs a service “of great importance” to the public, frequently a matter of public
necessity
(c) D holds themselves out as willing to perform service for any member of the public
(d) D (because the service is essential) has much more bargaining strength
(e) D has created a standard form contract of adhesion for this waiver
(f) P (or P’s property) are placed under D’s control in this contract, subject to risk of
carelessness
(2) Because going to a hospital frequently satisfies most of these things, waivers are generally
unenforceable in medical malpractice cases.
 (a) Hospital patients cannot shop around, and thus waivers would exploit asymmetric
bargaining power.
iv) Shorter v. Drury: In med mal cases of specific waivers based on deeply held beliefs (like
refusal of blood transfusion), the waivers may be enforced. May still be negligent, but damages
may be limited.
(1) Issues of meaningful choice do not apply here the way they did in Tunkl
(2) Don’t want to discourage any treatment of Jehovah’s Witnesses (exception to Tunkl, sort of)
v) Hypo: Waivers in experimental medicine might also be upheld.
3) Primary/ Implied Assumption – Known risks inherent in the act
a) Overview: P cannot recover for injuries they suffer when they freely undertake dangerous activities.
i) The risk is both (1) inherent and (2) intrinsically linked to the activity itself (exceptional)
(1) Does not apply to situations like drunk driving (can remove drunk driving without changing
driving)
ii) Cannot remove the risk of the activity without fundamentally changing the activity
(1) Recreational activities that always carry risk of physical harm.
iii) Murphy v. Steeplechase Amusement Co. (Flopper): Because the entire point of the ride was to
throw people to the ground, and its function was obvious to all who might ride it, P assumed the
risk that he would fall and injure himself when he got on (D may still be liable if it was more
dangerous than it appeared).
(1) “One who takes part in sport accepts the dangers that inhere in it insofar as they are obvious
and necessary”
(2) Market is saying benefits are greater than risks, because if not customers would not
participate.
b) Exceptions to Implied Assumption
i) Risk is not inherent to the activity
(1) Baseball Hypos:
(a) Foul balls: some area be netted significantly reducing risk without fundamentally
changing the nature of the game, BUT likely can’t net the entire field and keep it the
same
(b) Distracting mascots during play are not a fundamental part of the game, can limit risk
from them.
ii) Risk was not assumed by P
(1) Woodall v. Wayne Steffner Poductions: P assumed risk inherent to being a “human kite”
(wind, pot-holes, etc) he did not assume risk that D would not listen to him and hire an
untrained driver who ignored his instruction and drove too quickly.
iii) Hackart v. Cinncinati Bengals: P assumed risk from injury during the football game, but not
from intentional injury occurring after the whistle. Also, the risk of post whistle attacks is not
“inherent to the game” despite district court’s discussion of the brutality inherent in the sport
4) Secondary Assumption – P choose to “unreasonably” meet the specific risks posed by D
a) Largely Obsolete (subsumed by comparative negligence)
Strict Liability
R2T § 20. Strict Liability
(a) An actor who carries on an abnormally dangerous activity is subject to struct liability for physical harm
resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) The activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors, and
(2) The activity is not a matter of common usage.

1) Strict Liability: D will be liable for any harm that is proximately caused by the activity, not just the
harm that results from a breach of the standard of care.
a. Specific policy rationales explain why the situations are treated on a strict liability basis.
2) Law is telling you that you’re doing these activities and deriving benefits, and we want you to do so
but at your peril. SL regulates activity-level decisions by requiring cost-benefit analysis of activity
a. You need to treat it as a cost of doing business every time you harm someone, and you need to
decide which costs you’ll incur and which you will dispose of, in taking on cost of precaution.
3) Two levels of decision making for risky activities:
a. Care-Level Decision: Conditional on deciding to do the activity in question, what level of care
does the party take in preventing harm caused by that activity (Negligence Standard)
b. Activity-Level Decision: Does the party actively engage in the first place (Strict Liability)
4) Default in US tort system is negligence standard. Court create exceptions using strict liability when
there is still substantial risk in the activity, even after all reasonable precautions are taken.
a. Courts want to ensure that these activities are only undertaken if they outweigh all risks
associated with them.
5) Considerations: When to apply strict liability
a. High degree of residual risk (i.e., even after all reasonable precautions taken, still high risk of
harm) Helpful for regulating activity level decision
b. Low reciprocity of risk:
i. If multiple parties place the risk of harm on each other in a society, then more likely to
use negligence standard.
Wild Animals
1) Owners of wild animals are strictly liable for all damage caused by their “out of control” animals
a. P doesn’t necessarily need to establish duty of care or untaken reasonable precaution, but rather
just that it’s your wild animal and it harmed P.
b. Policy: Deterrence Tiger owner may be in best position to mitigate and prevent risks, since
they know how better than anyone and risks aren’t being reciprocated.
2) Wild
a. Behrens v. Betram Mills Circus: D is liable for the harm caused by escaped “wild animals”
i. “Wild” is a function of the species, regardless of the level of training the specific animal
may have.
 ii. The animal need not be acting within its “ferocious” nature for the owner to be liable.
Because elephant was out of owner’s control when it caused harm, SL applies.
b. Earl v. Van Alstine: The utility of the animal is considered in its determination as “wild” or
“domesticated.” Bees are considered domesticated and not subject to strict liability
i. Only use SL when we need it, otherwise fall back on negligence. We really need it when
owning wild animals that have such a fundamentally inherent danger.
ii. The relatively small residual risk in keeping bees, combined with their social utility
makes bees a type of animal-keeping that need not be discouraged by SL.
3) Out of Control
a. Bostock-Ferrari Amusements v. Brocksmith: D is not liable for harm caused by a horse
fleeing when spooked by a fully restrained bear.
i. Wild animals must in some way be beyond the control of D for strict liability to apply.
4) Once-Biten Rule
a. Smith v. Pelah: If an owner of a dog keeps the dog after receiving notice that its bit someone,
and the dog bites someone again, the owner will be strictly liable for his dog’s second bite.
i. Implied rationale is that he had notice of the dog’s dangerous disposition.
ii. Applies to all tame species of animals If the owner had knowledge that the animal had
a propensity for the sort of mischief it created, the owner is strictly liable.
iii. Many states have statutes that make the first bite a matter of SL as well.
5) Damage
a. Candler v. Smith: D is liable for all harm that is proximately caused by the animal. Injury
while fleeing from a baboon is included in the damages.
“Escaping” Dangers
1) D is strictly liable for dangerous possessions unnaturally on D’s land, which breach the perimeter
and cause harm.
2) Think of Rylands for exam purposes as a historical tool that explains how we get to SL and §520-
not necessarily as its own type of SL. But still useful for analogy!
3) Reciprocal Risk
a. Rylands v. Fletcher: Owner strictly liable when his reservoir breaches into his neighbor’s mine
shaft, flooding it. Reservoirs are uncommon uses of land in England. 2 dif opinions of SL:
i. Blackburns If people knowingly bring something on their land which would “do
mischief” if it escapes, then they are strictly liable for harm caused by that escape.
ii. Cairns If an owner brings something onto their land that would not naturally be there,
then they’re strictly liable for harms caused by it.
b. Turner v. Big Lake Oil: It is normal and common for properties in TX oil land to maintain
pools of liquid for use in the oil extraction process. Therefore, there’s reciprocal risk among the
people who have property in this area, and harm from the breach of one of these pools is not
subject to strict liability.
c. Walker Shoe Store v. Howard’s Hobby Shop: P does not have to engage in the practice (e.g.
storing oil in the basement for the furnace) for there to be a reciprocal risk. All that is required
is that the practice is reasonable or common in the community.
4) Third Party Intervention
 a. Rickards v. Lothian: A third party causing apartment flooding and damage P below does not
open D to SL because running water is a common activity present on most properties, risk is
low given reasonable care, and a 3rd party contributing to the breach likely alters how courts
think about the escape and liability.
5) Cost Avoider
a. Crowhurst v. Burial Board of Amersham: D is strictly liable when a poisonous tree grows
outside the perimeter of the cemetery and into the public area where P’s horse can eat it.
i. From accidental perspective, D is in best position to know that the tree is poisonous and
is the cheapest cost avoider
6) Cost Spreader
a. Lubin v. Iowa City: D strictly liable for pipes that burst when they intentionally don’t maintain
them because D is unilaterally imposing risk on P (non-reciprocal) and D is in the best position
to increase their costs to maintain the pipes and then spread those costs to all of the customers
through higher taxes or rates.
i. City is in good position to bear this loss; Better insurance smoothing outcome than just
having all the losses fall on those living near the breaks
b. Jurisdictional Split: Not all courts think about cost spreading in deciding to apply SL
7) Policy: Why is this a good case for strict liability?
a. High degree of residual risk even if all reasonable care is taken, these possessions will still
cause significant harm if they ever escape.
b. If the activity is uncommon, then there’s usually no reciprocal risk. If the activity is common
(i.e. there is low reciprocal risk) then the escape will not be subject to strict liability (Turner v.
Big Lake).
c. Cost avoider P is usually not in a good position to avoid the harm since they’re usually
neighbors. (Rylands v. Fletcher)
d. Cost spreading D may be in a position to spread the safety costs among multiple possible P’s
Abnormally Dangerous Activities
R2T 519. General Principle:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land
or chattels of another resulting from the activity, although he has exercised the utmost care to prevent harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally
dangerous.

R2T 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are considered:
(a) Existence of a high degree of risk of some harm to the person, land, or chattel of others;
(b) Likelihood that the harm that results from it will be great;
(c) Inability to eliminate the risk by the exercise of reasonable care;
(d) Extent to which the activity is not a matter of common usage;
(e) Inappropriateness of the activity to the place where it was carried on; and
(f) Extent to which its value to the community is outweighed by its dangerous attributes. (R3T
removes this concern with valuing utility of activity- subjective and controversial determination)

1) Strict Liability is employed when courts want to shift parties to an activity-level analysis
a. Extending Rylands beyond just “escaping” hazards
b. Similar logic, focus on the residual and reciprocal risk of the activity
c. Essentially, does not matter how carefully you were doing X activity if X activity’s residual
risks are too great to be tolerated.
d. *Restatement VERY influential*
2) R2T §520: Factor Test for determining abnormally dangerous activities (as a Matter of Law)
3) R2T §519: Liability for abnormally dangerous activities
a. If the activity is abnormally dangerous (§520), then undertaker liable for harm regardless of the
care taken (strictly liable)
b. Harm must come from “that which makes it abnormally dangerous: (see dangerous animals’
“control,” Per se, Proximate cause);
i. SL limited to the TYPE of harm that makes the activity abnormally dangerous.
4) Siegler v. Kuhlman: SL for damages caused when D was transporting gasoline on truck and tank
fell off while on overpass, lighting fire and engulfing P’s car. Gas is inherently dangerous and
transporting it on public highway is even more abnormally dangerous.
a. No matter how much care you take, you cannot eliminate risks by using reasonable care, i.e.
cannot control for other drivers on highway or weather
5) Indiana Harbor Belt R. Co. v. American Cyanamid Co: Not a good case for SL Don’t be
distracted by the harm that actually occurred.
a. Residual risk is most important (care-level decision) Since there would be almost no risk if
reasonable care were taken, this should be analyzed under negligence.
b. Inappropriateness D cannot decide where these goods get transported or how, so the location
issues do not apply
c. Rule is tied to activities, not to substance, and D is just manufacturer here.
6) Takeaway: Abnormally dangerous is about making actors think about whether or not they should
even undertake the activity; If it can be performed safely with reasonable care, do not apply SL
7) Policy:
a. Want to encourage people to engage in reasonable activities. SL forces people to make sure that
benefits of activity outweigh costs, because they will be responsible for all resulting costs.
b. SL is easier to apply consistently. Creates incentive for creativity/research to reduce risk as far
as possible or restrict harmful activities altogether.
i. More efficient to litigate. Per case, SL is cheaper. But might lead to more lawsuits if
recovery is more often anticipated.
ii. Better distribution of loss in some cases
c. Loss-Spreading Cost should be borne by party best able to distribute/disperse costs. But this
argument rarely succeeds/ is dismissed by Posner in Indiana Harbor as search for “deepest
pockets.”
i. Difficult/complex process to establish where costs fall
d. 520(f) social utility criteria controversial because “utility is judged differently by those who
profit from it than by those endangered by it.” Some courts still look at this though.
i. If act is socially valuable but practitioners can only afford to do it if others bear the cost,
then how valuable is it really?
e. (Frakes): “It seems like what courts are doing (Posner in Indiana Harbor) is what they say
can’t be done,” in deciding which fact patterns should have SL applied.
i. Posner, in determining that activity-level changes would not prevent spills at a
reasonable cost (unreasonable, perhaps, would be requiring rerouting of railroad),
makes an activity-level claim of the type Posner says the negligence standard can’t
handle.
Respondeat Superior – Employer Liability (“Let the master answer”)
§ 220. Definition of Servant
1. A servant is a person employed to perform service for another in his affairs and who, with respect to
his physical conduct in the performance of the service, is subject to the other's control or right to
control.
2. In determining whether one acting for another is a servant or an independent contractor, the
following matters of fact, among others, are considered:
a. the extent of control which, by the agreement, the master may exercise over the details of
the work;
b. whether or not the one employed is engaged in a distinct occupation or business;
c. the kind of occupation, with reference to whether, in the locality, the work is usually done
under the direction of the employer or by a specialist without supervision;
d. the skill required in the particular occupation;
e. whether the employer or the workman supplies the instrumentalities, tools, and the place of
work for the person doing the work;
f. the length of time for which the person is employed;
g. the method of payment, whether by the time or by the job;
h. whether or not the work is a part of the regular business of the employer; and
i. whether or not parties believe they are creating the relationship of master and servant
(contract) and
j. whether the principle is or is not in business
 The word [servant] indicates the closeness of the relation between the one giving and the one
receiving the service rather than the nature of the service or the importance of the one giving it

§228. Scope of Employment

1. Conduct of a servant is within the scope of employment if, but only if:
a. It is of the kind he is employed to perform.
b. It occurs substantially within the authorized time and place limits;
c. It is actuated, at least in part, by a purpose to serve the master, and
d. If force is unintentionally used by the servant against another, the use of force is not
unexpectable by the master.

1) Idea that the employer is liable for the torts of its employees committed in the scope of their
employment.
a) Not that the employer did something wrong but that the employee did something wrong in the scope
of their employment.
b) Old rule was that anything done to serve the master creates liability (*can mention this on exam and
move on*)
2) Two ways to sue an employer:
a) Negligence
i) Employer must have failed to take some reasonable duty of care. Usually negligent hiring or
supervision.
(1) Ex. Negligent for improperly supervised employee
(2) Ex. Failure to fire an employee who was engaged in a negligent activity.
 ii) *Make sure to address this on an exam*
b) Respondeat Superior/ SL
3) Doctrine Turns on Two Key Questions:
a) Is the employee acting within the scope of employment?
i) Conduct is the kind of employment if it “is of the kind he is authorized to perform” and is
“actuated, at least in part, by a purpose to serve the master.”  § 228
b) Is this an employee or an independent contractor?
i) If they are an employee the doctrine applies, if they are an independent contractor it would not.
ii) Courts emphasize the nature of control the most  § 220
4) Tortfeasor is an Employee
a) R2T §220: Weighing test for determining when someone is an employee
b) Key factor for determining independent contractor status: If one securing the services controls the
means by which the task is accomplished.
c) Miami Herald v. Kendall: The fact that the contract labeled the position as independent contractor
is not dispositive. However, given the factors of §220, the paper delivery boy was an independent
contractor. Miami Herald was only concerned with result, not with manner or implements with
which paper delivery boy completed job.
1) Scope of Employment
a) Reasonably foreseeable given employment & employee
i) Ira S. Bushey & Sons v. US: Coast Guard is liable- Employee was within the scope of
employment because his behavior was “characteristic of the activities of the employer” and the
employer could generally have foreseen type of conduct/harm that occurred. Expect sailors to
get drunk on leave and cause harm while in the area (drydock) associated w/ their employment,
given that his home is on ship. Sufficient relationship between conduct and work duties.
b) Time and Place of Employment
i) Miller v. Reiman-Wuerth: Because D’s employee was on a break for a personal matter (cashing
a check) and returning to work, they were not in the time or place of their employment.
ii) Frolic and Detour
(1) Frolic Major deviation by employee from employment task (long-term break completely
separates from the task)
(a) Outside the scope of employment
(2) Detour  Minor (short) deviations by employee which may be related to the employment
(a) May be in or outside of the scope of employment
iii) Distance from place of employment is also a factor- in Bushey, being so close to ship increased
the chance Coast Guard could be able to prevent such harms.
c) Benefit of the employer – “objective” standard
i) Forster v. Red Top Sedan Service: bus-driver punching driver is operating for the benefit of the
employer (finishing routes faster) so Respondeat superior applies.
ii) Reina v. Metro Dade County: bus-driver exiting bus to attack a passenger during a fight is a
“personal vendetta” and not for the benefit of the bus company (so not in scope of employment).
2) Issues in Scope of Employment
a) Konradi v. US: SL when mailman injures someone on way to work, because postal service made an
activity level decision- policy required rural carriers to furnish their own vehicles and take the most
 direct route possible, which carries the potential consequence of more accidents. Respondeat
superior may be helpful in encouraging postal service to reevaluate policy and consider alternatives.
i) Basically states test of employment in terms of whether holding employer liable would create
any useful pressure on employer to reconsider its activity levels.
ii) Even though employees are generally not within the scope of employment while traveling to
work, courts might impose respondeat superior on employers if a corporate policy might need to
be rethought. Can employers make better (more complete) economic decisions re: this
policy?
(1) Policy forcing employees to undertake some activity (e.g. driving vs. bussing to work)?
(2) Policy externalities that should be avoided? (excess vehicles on the road)
b) Roth v. First National Bank: Even though employee was working at the time, the observation and
relaying were not in any way related to the activities she was employed to perform as a teller (she
never worked with P and could have gotten the info if she were just an observant patron), nor were
they in any sense for the employer’s benefit, so outside the scope of employment.
i) All possible policy changes the employer could make would relate to reasonable care (watching
tellers, changing withdrawal procedures) so this fails the Konradi analysis.
3) Policy
a) Liability under RS does not preclude/substitute possibility of employee’s liability. That’s a given,
usually. Just more likely to be able to recover from employer, in most cases.
i) It might not be known which employee in particular is responsible.
ii) Deep Pockets rationale- the one with the ability to compensate P for her losses is often the
employer.
b) Bushey sets outer bound of scope of employer’s responsibility for employees’ conduct
i) Says employers must be reasonable when personal conduct is characteristic of their class AND
different from the risks they generally pose as a member of the community.
(1) Sailor punching someone at a bar wouldn’t be an RS case, but access to a dock while drunk
does create a nexus between employment, place, and foreseeable behavioral tendencies.
c) If conduct could have been changed/prevented by an activity level decision by employer, then more
likely to be RS. (Contrast Konradi with Roth).
i) As default, torts during commute doesn’t invoke RS, but if commute is related to work, stronger
RS case.
Nuisance
§ 826 Unreasonableness of Intentional Invasion
An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if
(a) the gravity of the 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.
(Exception for when compensation would make nuisance-causing activity not feasible)

§ 826 comment d: “The utility of the conduct depends to a great extent upon whether its primary purpose
has social value and upon how much social value it has. It has social value if the general public good is in
some way advanced or protected by the encouragement or achievement of such purposes.”

§ 822 comment d: “An invasion may be regarded as unreasonable even though the utility of the conduct is
great and the amount of harm is relatively small.”
§ 822 comment g: “Liability for damages is imposed in those cases in which the harm or risk to one is
greater than he ought to be required to bear under the circumstances, at least without compensation.”

These provisions leave open possibility that the benefits of a defendant’s activities may excuse the costs
they impose on a neighbor, but it creates a presumptive obligation to provide compensation in such cases.

1) Overview:
a) A nuisance arises in classic form when a landowner (D) interferes with a neighbor's (P) ability to
use and enjoy his property.
i) As distinct from trespass which is more about a physical invasion of land of another
b) Whereas much tort law involves a party being put at risk by the conduct of a stranger, nuisances
typically involve two parties who know each other and live side by side, with one inflicting certain
costs on the other through repeated interactions rather than isolated incidents.
c) In nuisance cases the injury usually is a byproduct of some activity that may produce considerable
public and private benefits, making analysis a challenge.
i) Yes, neighbor’s property interests are being invaded, but, if we penalize P’s activity, may
threaten their liberty interests in engaging in valuable activities.
d) Classic Examples:
i) Pollution, fumes, etc. that enters land of another; noise; odors etc.
e) Policy:
i) D’s are usually using their land for some social benefit (tension)
(1) Courts need to balance incentivizing this beneficial use against neighbors’ right to use their
land free from offense
2) Is It a Reciprocal Harm?
a) Yes Done- No Nuisance
i) Norm of community= no harm (i.e., mowing grass)
ii) Bramwell Acts that are necessary for the ordinary use of the land may still interfere with
another’s use of property. These acts should be allowed to continue, because they’re reciprocal
and every landowner will create these types of nuisances as well as be hindered by them
 iii) OK use of your land (where no compensation is required)Those acts necessary for the
common and ordinary use and occupation of land and houses
b) No Which view? Strict Liability or Negligence
3) Two Views if Not a Reciprocal Harm:
a) Strict Liability (Bramwell)(Jost)- Entitlement to neighbor
i) Bramwell v. Turnley A defendant who causes a nuisance to a plaintiff through the use of his
property may lawfully continue his actions if they are for public benefit but must compensate
the plaintiff for any harm caused.
(1) Law is not signaling to D that they should not do this beneficial activity, but just saying that
they need to compensate others for those actions- treat this as simply a cost of doing
business.
(2) “Reasonable use” or short time are not a defense to nuisance. Reciprocity is a defense
(a) (Activity so common or ordinary that it is expected the harmed neighbor will one day
need to do something similar).
ii) Jost v. Dairyland Power Co-Op A continued invasion of P’s interests by non-negligent
conduct, when the actor knows of the nature of the injury inflicted, is an intentional tort, and the
fact the hurt is administered non-negligently is not a defense to liability
(1) D is strictly liable for the harm their coal-burning powerplant caused to P’s crops.
iii) Policy:
(1) If the social benefit truly outweighs, then it will continue.
(a) Assumption is that if the activity is economically beneficial, then the neighbors can
exercise injunction and business will negotiate with the harmed neighbors to compensate
them for the ability to continue.
(b) Given issue with post litigation transaction, some SL courts have moved to money
damages as compensation for nuisance.
(2) Puts burden on nuisance-maker to justify/excuse the harmful conduct.
(3) Not fair that one person should bear all the costs of a nuisance-causing activity
b) Negligence (Carpenter)- Entitlement to the nuisance-maker
i) Carpenter v. Double R Cattle Company In a nuisance action seeking damages the interests of
the community, which would include the utility of the conduct, should be considered in the
determination of the existence of a nuisance.
(1) Because the cow farming was reasonable for the area, no liability. Due to Iowa’s reliance on
agribusiness, and the lack of any discernable countervailing policy considerations, it is
unnecessary to “unduly burden” D by forcing them to try and purchase entitlement from P.
(2) Policy: Unless behavior is “unreasonable” businesses may continue.
(a) These courts are skeptical that post-trial negotiation will result in the efficient outcome.
(b) Don’t want to have to ascertain money damages
(c) Generally, want to incentivize land use that is “economically beneficial”
4) Remedy to Nuisance
a) Nuisances are continual and damages are about cases that happened in the past.
b) Thus, Standard Nuisance Remedy Injunctive Relief
i) D barred from continuing the activity. Done to encourage post-judgment negotiations.
c) Issues with Injunctions – Transaction Costs
 i) Courts awarding injunctions may depend on post-judgment negotiation to set a price at which
activity may continue (or cease, depending on losing party).
ii) BUT post litigation bargaining often breaks down for a number of reasons (transaction costs):
(1) Negative emotions towards the other side
(2) Collective bargaining issues (logistically grouping multiple parties)
(3) Free rider problems (individual benefit alone insufficiently great to inspire individuals to
take on transaction costs, so no one steps up).
(4) Holdout Issues (resolution might be delayed by party who uses leverage to get more than
they’re owed).
iii) When prominent, these barriers make damages preferable. Some courts may even abandon SL
and say there’s a nuisance when the act is unreasonable (costs outweigh benefits).
(1) If benefits truly outweigh costs, then adding in transaction costs, it seems unlikely the
plaintiffs could ever come to an agreement.
d) Coase Theorem – When conflict between two parties’ uses of some resources, the goal is to ensure
that the more valuable use prevails.
i) Strict Liability/Negligence will get the same result- parties will negotiate.
(1) Most valuable use of the land will emerge;
(2) Economic View- if there is a conflict, the goal is to ensure that most valuable use of the
resource emerges
ii) Assuming no Transaction Costs: regardless of court decision, the party that values the
entitlement (right to engage/block behavior) will simply pay the other party for the right. (e.g.
the party the court finds for doesn’t matter) This assumption is unrealistic.
iii) Assuming Transaction Costs: Since bargain may break down, courts should try to find the most
efficient outcome for both parties and set remedies that reflect that outcome.
(1) If the benefits (of harmer) and costs (of neighbor) are both known, then set injunction at
efficient output
(2) If only costs are known, then award money damages
Products Liability
1) Overview
a) Policy: Mass produced markets informed development of liability law when P injured by a product:
i) Usually multiple Ds ([maybe component manufacturer] Manufacturer, Distributer, Wholesaler,
Retailer), How to determine which is at fault?
ii) How should the breach be articulated?
(1) Maybe the product deviated from the standard expected by the manufacturer’s design.
(2) Maybe the product design was defective and unreasonably dangerous
(3) Maybe the product should have come with instructions/warnings that would significantly
reduce the risk of the product
iii) How should liability be articulated and established?
(1) What standard should we hold Ds to (and does it differ by the type of breach?)
(2) Even under current discovery rules, can we expect P to prove by preponderance some
specific breach when all she has is the finished dangerous product?
(3) What happens if P owned and used the product prior to the defect causing harm?
(4) What if a 3rd party other than the buyer is harmed by the product?
b) These considerations led to the 3 different applications of products liability law (manufacturing
defect, design defect, failure to warn)

Historical Treatment
1) Late 19th Century – Rise of mass production
a) Liability for harm to consumer was treated as a breach of contract (some tort law for “imminently”
or “inherently” dangerous products)
i) No requirement to show intention/negligence, only breach
ii) Required “privity” of contract – P could only sue direct counterparty to the contract (retailer)
(1) Retailer could then seek recovery from one above, and eventually liability might trickle up
to the manufacturer.
iii) Language in the contract could eliminate or severely limit recovery
b) Macpherson v. Buick (1916): A manufacturer is liable in tort law to any P that could foreseeably
have used or come in contact with their negligently made tire
i) Creating right of action in tort law removed privity and limiting language, but replaced it with
negligence requirement, so most cases stayed in contract law.
th
2) 20 Century – Post MacPherson
a) Uniform Sales Act – “warranty of merchantability” implied in all sales of goods
i) No longer required explicit contract breach
ii) Strict liability action, but kept privity and language weakness
b) Exceptions (tort law actions) arise in situations where courts fear that manufacturers are not
properly incentivized to avoid cutting corners
i) Policy: similar market distrust as-seen-in Custom Standard and Express Waivers of Liability
ii) Food on of the earliest industries to be excepted.
3) 1944 – Res Ipsa For Products
 a) Escola v. Coca Cola Bottling: Because glass bottles shipped to consumers should not explode in
their hands absent negligent manufacture, and because systems could provide for near perfect
inspection of the bottles to detect defects, res ipsa loquitur applies to this accident and the burden
rests on D to prove non-negligence in manufacture.
i) Bystanders get at least equal protection; perhaps more because they had no opportunity to
inspect the product.
b) Concurrence (Judge Traynor): Res Ipsa Loquitur does not offer enough protection (issues of
“exclusive control”). Manufacturers should be strictly liable to any person (who might foreseeably
use it) that is harmed by their defective product.
i) Policy: argument for strict liability
(1) Fairness
(a) Could have easily been anyone else who was injured, unlucky that this P was the person
who got the bad product.
(b) Manufacturer should have to compensate the one unlucky person for the harm and can
spread cost to everyone by marginally increasing cost to everyone.
(2) Efficiency
(a) Strict Liability applies basically the same principles of res ipsa but with less judicial cost
(b) Manufacturers are the least cost avoiders since they have the most direct ability to
change the safety of the manufacturing process
(c) Manufacturers can effectuate insurance market by spreading the cost of the safety by
increasing the cost of the products.
(i) Think of ‘insurance premium’ as the slightly higher price you pay under this system
4) 1963 – Strict Liability Becomes Law
a) Greenman v. Yuba Power Products: (Traynor) irrespective of any contract/warranty argument, D is
strictly liable to P because the product they sold was defective and caused harm.
b) Many States followed suit, instituting strict liability in tort, rather than breach of warranty, as
primary theory of recovery for defective products.  Milestone Case for this reason

Legal Status Today

R2T §402a. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or
to his property is subject to liability for physical harm thereby cased to the ultimate user or consumer, or
to his property, if:
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition
in which it is sold.
(2) The rule in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual
relation with the seller.

R3T §1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a
defective product is subject to liability for harm to persons or property caused by the defect.
R3T §2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is
defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm pose by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of reasonable
instructions or warnings by seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the instructions or warnings renders the product not reasonably
safe.

Comment c. One Engaged in the Business of Selling or Otherwise Distributing.

Only applies to manufacturers and other commercial sellers and distributors who are engaged in the
business of selling or otherwise distributing the type of product that harmed the P. The rule does not apply
to a noncommercial seller or distributor of such products.
Ex. You resell your car.

Comment e. Nonmanufacturing Sellers or Other Distributors of Products.

The rule applies to them. Liability attaches even when such nonmanufacturing sellers or distributors do not
themselves render the products defective and regardless of whether they are in a position to prevent defects
from occurring.
Many jurisdictions have enacted legislation that immunizes nonmanufacturing sellers or distributors from
SL. Typically only immunized if the following:
o (1) Manufacturer is subject to the jurisdiction of the court of P's domicile;
o (2) The manufacturer is not, nor is likely to become insolvent; and
o (3) A court determines that it is highly probable that the P will be able to enforce a judgment
against the manufacturer.

1) R2T §402A: Strict liability to manufacturer or seller of “defective products” that are unreasonably
dangerous and harm a party.
a) Language seems to support application only when manufacture does not comply with the internal
design standards set by the manufacturer
b) Implemented 2 years after Greenman
2) R3T: Products Liability: Separates defective products into three categories (with different treatments):
a) Manufacturing Defects (traditional) – manufactured product deviated from the design, making it
unreasonably dangerous
b) Design Defects – The design specifications themselves are unreasonably dangerous
i) The utility of the product does not outweigh the risks when compared against a reasonable
alternative
c) Failure to Warn – A foreseeable risk could have been reduced or avoided by providing adequate
instructions or warnings, but they were not provided.
3) Comments:
 a) C. Engaged in the Business of Selling or Distributing: products liability applies only to parties who
are “in the business” of selling the kind of product that caused the harm.
i) Only applies SL to commercial businesses, not interpersonal transactions (i.e. selling car to
neighbor)
b) E. Nonmanufacturing Sellers or Distributors: Rest. rule applies strict liability to all manufacturers,
wholesalers, distributors, retailers, etc. involved in the supply chain. (P cannot over-recover, but
may recover against a non-negligent retailer)
i) Many legislatures absolve intermediaries by statute when:
(1) Manufacturer is subject to personal jurisdiction in the state
(2) Manufacturer is not (and not likely to become insolvent)
(3) A court decides it is highly probably P will be able to fully recover from the manufacturer.

Manufacturing Defects
1) Overview
a) Product deviates from assembly line internal specifications
b) Liability irrespective of whether manufacturing methods are reasonably careful.
c) Even if P’s use was partially responsible for harm, he can recover a lesser amount so long as the
harm was not entirely due to his misuse.
2) Restatements (Jurisdictional Split) – not all states have applied R3T, but they say basically same thing
a) R2T §402A: Manufacturers or sellers in the business of selling the product type are strictly liable
for harm caused by an unreasonably safe defective product, if it was expected to (and did) reach the
user without substantial change to the product condition.
b) R3T. Products Liability §2- Comment a: Strict liability regardless of whether manufacturer’s
quality control efforts satisfy standards of reasonableness.
i) Rationale:
(1) Creates greater incentives in investment of product safety
(2) Deters consumption of dangerous products because dangerous products will be more
expensive to make safe (or made more expensive by litigation against them).
(3) Decreases transaction costs in litigation- SL do not need to show fault
(a) Counter: do you have more litigation now?
(4) P does not have good access to proof. Why not just shift burden as res ipsa and at least
allow manufacturers to prove that their quality control satisfied standards of reasonableness.
(5) Manufacturers are better able to share the burden by spreading costs to all consumers
(a) Only area of law that least-cost avoider (best pos. to disperse costs) gets much traction
(6) Also, notion that unharmed consumers should share the burden of the harmed consumers.
This sounds like social solidarity system- we are all in this together.
(7) SL creates incentive for local retailers and wholesalers to deal only w/ reputable, financially
responsible manufacturers and distributors- plus they can indemnify manufacturers.
3) Misuse and Substantial Change
a) Welge v. Planters Lifesaver Co.: (assuming facts for P) There is no indication that P was the sole
cause of the glass jar breaking, and even if it was K-Mart cannot use this defense since they invited
the cutting on the glass. Therefore, this case should go to jury (and should not grant sum judg. to D)
 i) “A seller who is subject to SPL is responsible for the consequences of selling a defective
product even if the defect was introduced without any fault on his part by” another party in the
manufacturing chain (“his supplier or supplier’s supplier”).
ii) Note: invited misuse precludes contributory negligence
b) Misuse is only a complete defense if: (hitting glass with a hammer hypo)
i) P was the sole cause of the defect
ii) The misuse was not invited by D
c) If D can prove misuse is a partial cause, then D’s liability will be adjusted to reflect P’s misuse
i) Comparative negligence
d) Strict Liability flows “downstream” from the introduction of the defect
i) E.g.: if wholesaler introduces the defect then manufacturer not liable but retailer is.
ii) But, can still get all Ds to jury- i.e. the burden effectively transfers to manufacturer to prove this
4) Product vs. Service
a) Primarily Service vs. Primarily Good
i) Magrine v. Krasnica: (Service) P went to D for individualized diagnosis and treatment based on
D’s highly technical dentist training. The use of a product (needle) in that treatment does not
change the fact that D is offering a service. No liability.
(1) Consider general policy of deference to the medical community.
(a) Dentist was not trying to sell a product Was trying to put P in a healthier position.
(2) Here, D is not in a “better position” to avoid this type of defect-based injury.
(a) Dissent disagrees on notion that D is no-better positioned to discover defect
(3) Spreading the loss does not work as well here.
(a) Dentist practice is not normally large enough to spread the costs that effectively
(b) Dentist malpractice insurance does not cover implied warranty necessarily
(c) Even if insured, would be passed on and medical costs are on the rise already.
(4) Concerned that if we hold liability here, then any physician, mechanic, etc will be liable if
the defective article they use in their service breaks due to latent defect and injures another.
ii) Newmark v. Gimbel’s: (Product) P came to the salon for the hair product. The fact that D
applied it for her doesn’t change that. There is no issue of professional judgment, just following
the instructions for application. There is no reason why if P bought the wave solution and
applied it at home (there would be liability for salon) that there should not also be liability if the
wave solution is applied at the salon.
(1) Commercial endeavors get less deference than medical necessity.
iii) Distinguishing Magrine and Newmark
(1) SOLD to home
(a) Perhaps the dental case can be distinguished because the needle was not something that
plausibly could have been sold to the P as an ordinary product.
(2) Different kinds of activities
(a) What is SL good for?  Changing activity levels
(i) The court also relies on the idea that medicine and beautification are fundamentally
different activities. Perhaps the idea is that the kind of activity level pressures SL can
create are more tolerable for less important services like hairdressing.
 (ii) Remember R2T §520 – the importance of the activity to the public cuts in favor of a
negligence rule
(iii) Relatedly, court places emphasis on notion that dentists and physicians are in
a profession, not a “commercial” enterprise
1. Professions are bound to give objective, disinterested counsel
2. Commercial enterprises generally profit-driven in their activity-level decisions
b) Printed words (Class hypo)
i) Product should be “tangible”
ii) Mushroom Foraging/Cookbook: (not a good) The advice within the book was wrong
(possibly even negligent). The harm came from the bad advice (words/thoughts) contained
within the book, not from any defect with the physical book.
(1) Expression of ideas, so if SL was applied may entangle First Amendment.
iii) Aeronautical Map: (good) The factual information presented on the map was incorrect. There
is no issue of judgment/advice (less first amendment issue), just the printing of reference
material about physical characteristics of runways.
(1) Courts strongly analogized the map to a compass, and stressing that it was not just an
expression of idea but that the map is truly an instrument with technical information that
impacts the safety of user.
(2) Not book with “how to read” aeronautical maps, but the map itself is an instrument with
tangible nature that can implicate PL.
5) Is D a “seller”?
a) Keen v. Dominick’s Finer Foods: D offering gratuitous use of a product (shopping cart) while in
the store does not make them strictly liable if that product is defective
i) But consider: could substantial purchases take place without the cart?
(1) Arguably, customer is “paying” for cart marginally in the products she buys.
ii) Maybe still negligence (re: business invitee?) or may go after manufacturer
b) Peterson v. Lou Bachrodt Chevy: Used car dealers are not treated like retailer/wholesalers. No SPL
i) Jurisdictional Split- Some split authority on treatment of used goods.
ii) Note: Used car dealer can still be sued on theory of negligence.
iii) Policy
(1) Rationale often invoked for SL against wholesalers and retailers (ability to change safety,
cost spread, etc) do not apply for used car dealer- break in chain of distribution.
(a) But if you market it as “like new,” will treat as though retailer and SL applies.
(2) Some courts invoke consumer expectations to justify no SL for used goods dealers.
(a) Consumers do not expect a new car w/ no defects, as is case at new car dealerships.
c) Nutting v. Ford Motor Co.: Even though HP wasn’t “in the business” of selling cars generally, HP
is effectively “engaged in the business of selling” these cars because of the volume, regularity, and
“continuing relationship” between them and Ford. SPL.
i) Invokes policy rationale for SL on non-manufacturing sellers: ability of the seller, because of its
continuing relationship with the manufacturer, “to exert pressure for the improved safety of
products and to recover increased costs within their commercial dealings…”
ii) Cannot avoid liability just because the rest of company is so much bigger than the part that’s
being sued. Also, have enough cars they could spread the cost of increased inspection.
6) Food Liability – “Foreign Objects”
a) Mexicali Rose v. Superior Court: Food provider strictly liable for any defect that consumer should
not reasonably expect to occur. P’s should expect “natural substances” to sometimes make it into
their food, so NO SL for chicken bone in chicken enchilada (negligence theory can still go forward)
i) Natural Substance: must be natural to the food prepared such that there is a reasonable link
between them (diseases/waste/other animals don’t count).
b) Harm Caused by Food Rule
i) Foreign Substances and P gets hurt Court imposes SL.
ii) Natural Substance and P gets hurt Usually comes down to whether the diner reasonably
should have expected to find the substance in the food.
c) Hypo: happens at a three-star restaurant?
i) Context (restaurant quality/price) likely effects consumer expectations. What expectations
should apply likely a factual question.

Design Defects
1) Overview
a) Specifications themselves are unreasonably unsafe because the risks associated with the design
outweigh its utility when compared with a reasonable alternative.
b) Often, the same qualities that make an item useful also empower it to do harm.
c) Requires an independent finding of reasonable responsibility in design, as opposed to the binary
proposition of a defect in reference to a plan.
d) Higher burden than manufacturing defects
i) More similar to negligence with reasonableness (process more closely resembles Hand formula)
(1) This is an important part of the determination in terms of alternative design
(2) Look to the costs/benefits of the design
(3) Notions of strict liability are still present as
(a) The retailer can still be sued
(b) It focuses on the product not the behavior of the defendant
(c) Manufacturers are still held to an expert standard of knowledge available to the relevant
manufacturing community
e) Statutory compliance is no guarantee of insulation from tort liability (§402)
f) Jurisdictional Split in determining design defectsGo through and recognize both on exam
i) Risk/Utility Weighing Test laid out in the R3T with Dawson v. Chrysler
(1) This is more popular and is being adopted by more jurisdictions
(2) Criticism is that juries are supposed to focus on the likelihood of the risk balanced with its
utility, but that can be hard to do when the risks have already materialized in front of them
ii) Consumer Expectation Test comes from R2T and is applied in Green v. Smith
(1) Looks at whether a products failure frustrated the safety expectations of consumers
(2) Criticism:
(a) With obvious defects manufacturers won’t be liable
(b) Consumer expectations may lag behind progress
(c) Consumer expectations test could be harsh on D where there are less obvious defects
(i) Under a notion that the consumer expects a product to cause no harm
2) Risk and Utility Weighing Test
a) R3T Products §2: Strict liability if the product design is unreasonably dangerous because the costs
outweigh the benefits when compared against a reasonable alternative design.
i) Needs more than just danger since threatening entire product lines, must show essentially
negligence (Rest. still calls it strict liability since the rest of the chain is strict and manufacturers
held to “expert standard” of knowledge).
b) Dawson v. Chrysler Corp.: It doesn’t matter that the design would be safer in most accidents, jury
entitled to find that the vehicle design was defective.
i) Police officer paralyzed when cruiser skids off road, hits pole, and folds in on itself. P says this
wouldn’t have happened if it had used continuous unibody design; D responds this would have
made it heavy/expensive and that in MOST cases, the crumpling that happened here is good
because it absorbs deceleration. Jury finds liability after balancing defect findings.
ii) Adherence to FTSB standards does not bar civil action
iii) A product is not “reasonably fit/suitable/safe” for its intended purpose if a “reasonable person
would conclude that the magnitude of perceivable danger outweighed the benefits of the
products design”.
iv) Seven factor risk/utility weighing test (Jurisdictional Split on application)
(1) Usefulness/desirability of the product (utility to user and the public).
(2) Safety aspects of the product, likelihood it will cause injury, and probable seriousness.
(3) Availability of substitute products that serve the same function and not be unsafe.
(4) Manufacturer’s ability to eliminate risks without impairing usefulness or inflating price.
(5) User’s ability to avoid product’s danger by exercising care in use.
(6) User’s anticipated awareness of dangers based on public knowledge of product/suitable
warnings and instructions
(7) Manufacturer’s ability to spread the cost of the harms.
v) Note: None of these factors alone is dispositive, and not all of them have to be met for a defect
to be reasonably found. Allows jury great deference to find a defective design.
3) Consumer Expectation Test
a) R2T. §402A (comment i): Article sold must be dangerous beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to
the community as to its characteristics.
b) Green v. Smith & Nephew: (Applying R2T §402A) even if the manufacturer did not know that the
harm would be caused, if a product is more dangerous than it appears, liable.
i) Recovery for patient who claims D’s latex gloves activated a new latex allergy.
ii) Rejects R3T’s burden of proof on injured part to show there were “reasonable alternative
designs available”- so P recovers. Instead leans on “ordinary consumer expectations.”
c) Policy: Most courts have moved away from consumer expectation test
i) Some did not like that manufacturers always had a defense for “obviously dangerous” products
(maybe actually a benefit (freedom of choice)? But consider externalities)
ii) Others were concerned that latent defects tilted towards the plaintiff since most consumers
expect products have ALL safety precautions (vs. just reasonable ones)
(1) Expectations may lag behind technological progress
iii) Also, no consideration for harm to bystanders
 iv) Inconsistent/ambiguous results that do not lead to any standards.
4) Ex-Post v. Ex- Ante Regulation
a) Ex-Ante (legislative regulation) Approach
i) Standardization, expectations for consumers/producers
(1) Insulates producers from liability if the regulation they adhered to (as in Dawson) leads to
worse outcomes in some small subset of cases
ii) Doesn’t require sacrifice/harm to befall someone to get to the right answer through test-cases
iii) Institutional Compliance- Congress has better access to constituents and what they want from
products/fear from them
(1) Regulatory agencies have specialized expertise and training that judges or juries might not
have access to
b) Ex-Post (tort-based) Approach:
i) Revolves particular disputes in context-specific ways
ii) Bulwark against regulatory capture (the tight relationship between regulators/companies often
leads to rules that serve the companies as much if not more than the public)
iii) Market forces are already encouraging industry players to take the right approach
iv) Could lead to overdeterrence because companies will take too many precautions out of fear of
being held liable in many different courts for many different types of dangers, perhaps even
those created as a trade-off between it and another precaution
(1) “After-market surveillance”- best way to know which precautions are needed is direct
observations
5) Policy: Legislative Regulation (Ex-Ante) v. Judicial “Regulation” (Ex-Post)
a) Jurisdictional Considerations: Products are sold nationally; tort cases are state specific.
i) Different states may develop different (sometimes even conflicting) standards if juries are
deciding based on specific accidents and alternatives.
ii) This may be a positive, letting states take risks to find the best rule.
b) Temporal Considerations:
i) Agency regulators can set the standard before any harm happens.
ii) BUT sometimes no one can foresee the design defect until it causes harm.
c) Expertise v. Capture:
i) Agencies presumed to have better understanding than juries about these highly technical issues.
ii) Agency capture might mean the juries will enact more equitable standards though.
d) Piecemeal Judgments:
i) Deciding the standard one at a time means that each new standard might be reasonable, but
overall, they massively increase costs.
e) Administrative Costs:
i) Court cases are expensive but very rare, overall costs are likely a wash (possibly leaning in
favor of courts)
6) Issues
a) Driesonstok v. Volkswagenwerk A.G.: Because the decision to move the seats forward increased
the cargo space (a distinct selling feature of the VW cargo van), the risk associated with that
decision could not be mitigated without changing an integral part of the product, so its design was
not unreasonably dangerous.
 i) No liability, feature that made it useful obviously came at expense of safety bumper zones.
ii) Purchasers have (assumedly) made that cost adjustment already when buying it.
iii) Distinguish from Dawson the risk taken on in exchange for storage space is visible to the
consumer and thus part of their choice. In contrast, consumer without specialized knowledge
won’t typically buy a car based on its frame specification.
(1) Frame is main attractive feature in this product, too
(2) Liability argument here would focus on paternalism, external costs imposed on people
besides purchases
b) McCarthy v. Olin Corp.: (feature, products dangerous by design) Unreasonably dangerous speaks
to side effects; When the entire point of the good is to cause harm (e.g. hollow-point bullets) then it
cannot be said that their design is unreasonably dangerous.
i) Black-talon bullets that expand on impact, causing destruction. Court: “there is no reason to
search for an alternative safer design where the product’s sole utility is to kill and maim.”
ii) Risk/utility test not applicable because the risk arises from function of product, not any defect in
product. There must be something wrong w/ product before risk/utility analysis may be applied.
iii) Think about the difference between a product category itself and a design within a category.
(1) The law will often refuse to hold a whole product category itself liable
iv) Dissent: Some products are of such low social utility that liability may exist even without proof
of a safer alternative design.

Failure to Warn
1) Inadequate warnings of inherent risks in the design that the manufacturer knew or should have known
about but that consumers were unlikely to recognize.
a) Foreseeable Risks: Risks that you knew or should have known about (constructive knowledge- if
competitors knew about it, it’s assumed you should have too)
b) Third Restatement: If a slight change in design would prevent serious injury, the designer may not
avoid liability to make that change by warning of possible injury
2) Common Knowledge and the Heeding Presumption
a) Heeding Presumption: In absence of evidence from the defense otherwise, it is presumed the
presence of a warning label would have stopped a plaintiff from the activity that caused the harm.
i) This is a rebuttable presumption Evidence of a plaintiff’s tendency to ignore warning labels
in other walks of life will make it a question for the jury of whether the label in this case would
have been heeded.
ii) Heeding question is a cause in fact question. i.e., did the harm occur as a RESULT of the
omitted warning?  Presumption is yes
b) American Tobacco Co. v. Grinnell: (relying on R2T. §402A)
i) D owes a duty to warn of unreasonably harmful conditions if it is not “common knowledge” at
the time of use. Because general harmful effects of cigarettes were common knowledge when P
started smoking but not the addictive qualities, there is a duty to warn here.
ii) When a harm is not “common knowledge” there is a presumption that P would heed the warning
and not harm themselves.
 c) Graves v. Church & Dwight: D did have a duty to warn that this baking soda could cause stomach
ruptures. BUT evidence that P smoked cigarettes despite warning and evidence that he did not read
the box rebutted the heeding presumption, protecting D from liability (no proximate cause)
d) Policy: Why have a heeding presumption? (Public Law)
i) If it were strict Ps would have to prove they would have heeded the warning; Most Ps do not
heed warnings, it would very difficult to prove but-for causation.
ii) The sheer number of products sold means that even a small percentage of people heeding would
greatly increase total safety.
3) Reasonable Warnings
a) Brown v. McDonald’s Corp.: Woman with seafood allergy sues McDonalds after eating a sandwich
made with seaweed. Court finds (per Restatement comment j) that a seller is required to give notice
if an allergy-causing substance is not one the consumer would “reasonably expect” to find in the
product. Case goes to jury.
i) (applying OH statute) Would a reasonable manufacturer warn given (hand formula):
(1) (P) Likelihood that harm would result (how common is the allergy)
(2) (L) How serious is the potential harm (what’s the normal reaction)?
ii) Many courts use the hand formula to determine costs of labels versus probability of harm.
b) Policy: Why not have duty to warn all the time since (B) of warning is usually so cheap?
i) Costs are higher than we would think (research, planning, equipment changes, etc)
ii) Each additional warning dilutes the efficacy of all the others (and the costs continue to add up)
iii) Don’t want every product plastered with so many warnings no one can read them all.
(1) This is why ex ante regulatory approach is so critical here- the FDA, etc.)
4) Design Defect v. Failure to Warn: Abandoning R2T §402A comment j
a) R2T suggested no design defect could exist if the danger had warning, much criticism:
i) Not everyone heeds warnings all the time.
ii) Some users cannot choose whether to use certain products.
iii) Manufacturers are always in the best position to decrease risk.
b) Rest. 3 removes any suggestion of this, warnings do not fully protect against design defect
5) Anticipated Misuse:
a) Liriano v. Hobart Corp.: Even if it is common knowledge that a guard-less meat grinder is
dangerous, it is not common knowledge that they will know guards are available to decrease that
risk. If a product is sold with safety features, they should have a warning stating as such and that
removing the safety features will increase the harm.
6) Medical Goods
a) R2T §402A (comment k): Unavoidably unsafe (but socially valuable) products exempted from
strict liability if accompanied by proper directions and warnings. Goods under this exemption are
not unreasonably dangerous. Warning + properly prepared = negation of design defect claim
i) (Jurisdictional Split) Some courts found that manufacturers of properly made prescription
drugs could never be liable for design defects if properly warned. Most courts applied the
exemption case-by-case.
b) R3T. PL §6: Drugs or medical devices are unreasonable unsafe if “the foreseeable risks sufficiently
outweigh the therapeutic benefits such that reasonable health-care providers would not prescribe the
drug”
 i) Even if there is a safer reasonable alternative, the product is still reasonably safe if a reasonable
physician would still prescribe it.
c) Learned Intermediaries:
i) Learned Intermediary Doctrine: A manufacturer of prescription drugs or medical devices
usually has a duty to warn only medical providers about any dangers associated with the
product; the manufacturer need not warn the product’s end users.
(1) The reasoning is that the doctor or other medical professional can be expected to convey
needed warnings to the patient.
ii) Brooks v. Medtronic: P injured by defective pacemaker device; doctor knew of risks but did not
disclose them to patient. Court find this fine= doctors in best position to assess risks.
(1) Medical device manufacturers have a duty to warn physicians of any risks associated with a
drug. The physician can then weigh (and rely) the risks to each patient based on the
personalized health plan.
(2) Policy: Court doesn’t want to inundate patients with warnings (see above) doctors can distill
out the most relevant risks to each specific patient.
iii) Perez v. Wyeth Labs: When a manufacturer markets directly to a consumer, then the learned
intermediary exemption does not apply, and they owe a duty to warn the consumer directly.
(1) If a company is attempting to subvert a doctor’s prescription power (hoping patient decides
on a drug from an ad vs a doctor) then they cannot rely on the doctor to also give out the
warnings
(2) Courts concerned about Doctor pharma capture, no longer relying as heavily on the
presumption that a Doc will prescribe and warn with patient’s best interest fully at heart.