Intentional Torts

I. Battery - R2T § 13, 18: Liable for battery if (a) there is intent to cause a harmful or offensive contact, or
an imminent apprehension of such contact, and (b) a harmful [or offensive] contact directly or indirectly
results.
A. Elements for Prima Facie Case of Battery
a.Act by Defendant
b.Intent
c.Harmful or Offensive touching
d.Causation
e.Lack of Consent
B. Requiring Fault
a.Van Camp v. McAfoos -Child riding tricycle hits pedestrian. Not liable – No fault.
C. Elements of Battery
a.Liable for battery when (1) D acts intending to cause a harmful or offensive contact, and
(2) when a harmful contact results. The least touching of another in anger is battery.
1. Snyder v. Turk – Dr pulls nurse’s face towards operation opening in anger.
b.D also liable not relatively trivial contacts which are merely offensive and insulting
(protecting personal integrity). Contact which is offensive to a reasonable sense of
personal dignity is offensive contact.
1. Cohen v. Smith – male nurse saw and touched P’s naked body, which was against
her religious beliefs (P had informed D). Liable – offensive touching.
2. Leichtman v. WLW Jacor Communications, Inc. – intentional blowing of smoke in
P’s face; D liable for battery. Offensive contact.
a. Employer only responsible for torts of employees if employee is acting
under scope of employment.
D. Intent - R3T §1: A person acts with the intent to produce a consequence if: (a) the person acts
with the purpose of producing that consequence; or (b) the person acts knowing that the
consequence is substantially certain to result.
a.Substantial certainty of result can provide required intent
1. Garrat v. Dailey – Child pulls chair out from under p; P falls. Even though D
doesn’t desire to harm P, if D knows there is a substantial certainty P will be
harmed, then intent element of battery is satisfied.
b.Transferred intent – (1) tortfeasers intends tort on A, but commits tort on B; (2)
tortfeasers intends a tort, but accomplishes another one.
1. Hall v. McBryde - D shot gun at passenger in car, D accidently shot P, pedestrian.
No intent to shoot P, but use transferred intent.
2. Extended Liability – D commits intentional tort; liable for all damages resulting,
not merely those intended or foreseeable
c.Child Liability – Most states children still liable for torts. Some states have an age cut-off
where children will be held liable (b/c presumed small children incapable of the required
intent). Standard of care (to find negligence) of minor is that ordinarily used by similar
children of same age.

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 1. Parental Liability for the torts of their minor children – depends on statute (state
will enact usually if willful/wanton tort, and damages capped at a low amt $);
common law says parents not vicariously for torts of their children.
d.Insanity - R2T §895J - One who has deficient mental capacity is not immune from tort
liability solely for that reason.
1. Polmatier v. Russ – D insane at time he murdered P. Still liable, b/c he intended to
harm him, although the reasoning for it was irrational.
e.In a “dual intent” jurisdiction, the fact of insanity may be considered when determining
whether an insane defendant appreciated the harmfulness/offensiveness of his/her
conduct.
1. White v. Muniz – Dementia patient (w/ loss of memory, impulse control &
judgment) hits caregiver. No intent b/c D couldn’t appreciate the harm of her
conduct, due to her dementia.
II. Assault – R2T §21 An actor is subject to liability to another for assault if (a) he acts intending to cause a
harmful or offensive contact, or an imminent apprehension of such a contact, and (b) the other is thereby
put in such imminent apprehension.
A. Elements for Prima Facie Case for Assault
a.Act by Defendant
b.Intent
c.Apprehension of immediate touching
d.Causation
e.Lack of Consent
B. No contact required for assault
a.Cullison v. Medley- Ds intended to frighten P, by surrounding him and threatening him
with bodily harm with a revolver. P suffers chest pains & psychological trauma.
C. Some apprehension of the imminent contact is required for assault
a.Koffman v. Garnett – D (football coach) tackled P, while explaining a technique, and
accidently broke P’s bone. No assault b/c no time for P to apprehend the imminent
danger. Once coach tackled him, the battery was already in progress.
1. R2T §29(1) The apprehension created must be one of imminent contact, as
distinguished from any contact in the future. “Imminent” does not mean
immediate, in the sense of instantaneous contact . . . . It means rather that there
will be no significant delay.
III. False Imprisonment – R2T §35 Liability for false imprisonment if (a) D acts intending to confine
within boundaries fixed by D, and (b) D’s act directly or indirectly results in such a confinement, and (c)
P is conscious of the confinement or is harmed by it.
A. Elements for Prima Facie Case:
a.Act by defendant
b.Intent
c.Confinement without lawful privilege for any appreciable time
d.Causation
e.Lack of consent
B. Physical confinement is not required; the confinement element of false imprisonment can be
shown by other factual circumstances
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 a.McCann v. Wal-mart Stores, Inc. – mere threats (can be implicit or explicit) of physical
force can suffice; confinement can also be based on a false assertion of legal authority to
confine.
IV. Torts to Property
A. Trespass to Land – R2T §158: A trespasser is liable, even if no harm is caused, if he
intentionally (a) enters another’s land or causes a thing or person to, or (b) remains on the land,
or (c) fails to remove from the land a thing which he is under a duty to remove.
B. Trespass to Chattels – R2T §217: (Chattels are personal property). Trespass to chattels is the
intentional dispossession, use or intermeddling of another’s chattel. With trespass to chattels,
you must show actual damages.
C. Conversion of Chattels – R2T §222A: Conversion is when property is interfered with the
owner’s control of it in a “complete or very substantial” way, and owner can get the value (but
not the thing back). Factors in determining the extent of interference and if actor must pay back
owner: (a) extent & duration of actor’s control over chattel, (b) actor’s intent to take away
owner’s control, (c) actor’s good faith, (d) harm done to chattel, (e) inconvenience & expense
caused to the owner.
V. Forcible Harms as Civil Rights Violations
A. The §1983 Claim (Summary): Every person shall be liable to the party injured under the
following circumstances: (1) when that person deprives the party of any rights, privileges, or
immunities secured by the Constitution and (federal) laws, and (2) does so under color of state or
other local law.
a.Yang v. Hardin – forcible harm against Yang by police officer Brown. Hardin there but
didn’t interfere. D’s failure to interfere deprived Yang of his civil rights.
b.Brown v. Muhlenberg Township – D (police officer) shot and killed P’s dog, who was not
posing any imminent danger. Unreasonable seizure within the meaning of the 4th
amendment.
B. Exemplars of Constitutional Violations
a.4th Amendment - The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures
b.14th Amendment - no deprivation of life, liberty or happiness without due process
c. 8th Amendment - Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
d.County of Sacramento v. Lewis – suspect killed in police chase. P alleges rights under 14th
amendment. No intent to injure; recklessness insufficient to show a due process violation.
VI. Affirmative Defenses
A. Protecting Against the Apparent Misconduct of the Plaintiff
a.Self-Defense – R2T §70: There must be an immediate threat of harm to trigger the self-
defense privilege. You must have a reasonable belief that force is necessary, but you can
be mistaken. You can use reasonable force in amount and duration based on the
circumstances to protect your person.
1. The force you use must be proportional in some sense.
2. Words are insufficient provocation to trigger the privilege of self-defense because
language doesn’t constitute assault.
3. You can only use deadly force to counter deadly force.
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 4. In own home, no obligation to retreat from deadly force. (but outside home, may
be obligation to retreat from deadly force, but depends).
5. Non-deadly force: no obligation to retreat; ok to respond w/non-deadly force
b.Defense of Third Persons – R2T §83: if actor is privileged for the purpose of stopping a
trespass or conversion, and in doing do, unintentionally harms a 3rd person, actor not
liable unless he knew or should have known of the risk created.
c.Temporary Detention for Investigation. R2T §120A – An actor is privileged to detain
someone whom he reasonably believes has taken his chattel or not paid for services, for
time necessary for reasonable investigation
1. Merchant privilege to detain for investigation
a. Great Atlantic & Pacific Tea Co. v. Paul – P suspected of stealing. No
reasonable belief for stealing (P wasn’t trying to leave store yet, D didn’t
actually see him take it, etc), so therefore no reasonable reason for the
detention.
d.Defense and Repossession of Property
1. R2T§ 77 - reasonable force and actor reasonably believes that the intrusion can be
prevented or terminated only by the force used ok if intrusion is not privileged.
The force involved is limited in particular by the requirement that the trespasser
first be asked to depart, except when the intruder is acting in such a way that a
reasonable person would find that such a request is useless or can’t be made in
time.
2. R2T § 79 - You do not have the privilege to use force that may cause death or
serious injury against trespassers unless the trespass itself threatens death or
serious injury. The value of human life outweighs possession of land.
3. R2T §85 – A possessor of land cannot do indirectly by using a mechanical device,
that which he could not do immediately and in person.
a. Katko v. Briney – mechanical gun set up to shoot trespassers. D were not
present, no threat of bodily harm, only possession of property. No
privilege to use this type of force.
b. Brown v. Martinez – P trespassed on D’s land; D shot P. Not shown that D
feared for his safety. No privilege to use gun.
4. Recovery of property– only if in “hot pursuit,” & only use reasonable force (never
justified to use deadly force for property).
e.Discipline – Parents are privileged to use reasonable force to discipline their child.
B. Consent R2T §892: Willingness for conduct to occur. May be manifested by action or inaction
and need not be communicated to the actor. If words or conduct are reasonably understood as
intending consent, they are effective as consent.
a.Effect Of ConsentR2T§ 892A – (1) If consented to, no tort claim. (2) Consent must be
given by one who has capacity to consent, or by person empowered to consent for him,
and consent must be to the actual conduct.
C. Privileges not based on Plaintiff’s Conduct
a.Arrests and Searches - Officers have the privilege to enter land to execute a search or
arrest warrant.

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b.Public Rights - Any person has a right to enter a public utility, and cannot be held as a
trespasser for exercising that right (civil rights). The privilege to enter land to reclaim
goods of one’s own
c.Necessity (public & private necessity)
1. Public Necessity – R2T §196: One is privileged to enter land in the possession of
another if it is, or if the actor reasonably believes it to be, necessary for the
purpose of averting an imminent public disaster.
a. Surocco v. Geary – Fire spreading, would have destroyed P’s house. Fire
chief blows up P’s house to stop the fire from spreading. Reasonable for
him to do so. Not liable.
b. Wegner v. Milwaukee Mutual Ins. Co. – apprehension of a criminal; police
caused damage to P’s house. There was a public necessity, but an innocent
shouldn’t bear the costs. City to pay back the damages, but officers not
personally liable.
2. Private necessity R2T §197: (1) Privileged to enter or remain on other’s land if it
is or reasonably appears to be necessary to prevent serious harm to the actor, or
his land, chattels. (2) Private necessity may privilege the use or destruction of
private property but the user/destroyer must compensate (except if the threat of
harm that forced the entry was caused by tortious conduct of the landowner).
a. Vincent v. Lake Erie Transportation Co.– Storm, ship would have been
blown away. So ship was moored to dock, and b/c of storm, kept hitting
the dock, causing damage to it. D has privilege to use the dock (private
necessity), but he must pay for the damage (b/c he got a benefit while P
was harmed).

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Negligence – The Prima Facie Case
I. Elements of a negligence cause of action.
• (1) DUTY - The defendant owed plaintiff a legal duty;
• (2) BREACH - The defendant, by behaving negligently, breached that duty;
• (3) HARM - The plaintiff suffered actual damage;
• (4) CAUSE IN FACT - The defendant’s negligence was an actual cause of this damage;
• (5) PROXIMATE CAUE - The defendant’s negligence was a “proximate cause” of the damage.

Elements of Negligence to create the Prima Facie Case

I. Duty
A. Reasonable Person Standard - The standard of care requires conduct of a reasonable and
prudent person under the same or similar circumstances.
a.External circumstances
1. There is no “exceptional” standard of care in dangerous situations (the reasonable
person standard applies), but the degree of care required does increase with
danger and risk
a. Stewart v. Motts – gas explosion; higher degree of care necessary when
dealing with dangerous substances like gasoline.
b.Sudden emergency doctrine
1. Wilson v. Sibert – Bank drive-thru; D backed up into P; sudden emergency b/c car
in front of D backed up, and D was trying to get out of the way.
c.Internal characteristics of actor
1. Child §10: Child held to a“reasonable child” standard – that of a reasonably
careful person of the same age, intelligence, and experience. Does not apply
when the child is engaging in a dangerous activity that is characteristically
undertaken by adults.
a. Robinson v. Lindsay – D (child) operating snowmobile, P (also child) gets
injured. Use reasonable person, not child standard b/c dangerous activity
normally conducted by adults, not children.
2. Disability §11: (a) Physical disability: person negligent if actions don’t conform
to reasonable careful person w/ same disability, (b) A sudden physical disability
(like loss of consciousness): actor negligent only if the illness was foreseeable, (c)
Mental/Emotional disability: held to reasonable person standard (no special
permissions) – except if a child (see §10)
a. Mental Disability
(a)Creasy v. Rusk– person w/ mental disability held to same standard
of care as normal reasonable person. BUT, not liable to a caregiver
(caregiver has duty to patient, not the other way around).
(b)Rationales for holding the mentally disabled liable under the
reasonable person standard:

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 (a) Allocates loss btwn innocent parties to party who caused
loss
(b) Incentive to those responsible for people with mental
disabilities to restrain them
(c) Removes inducement of “faking” of insanity to avoid
liability
(d) Avoids admin problems involved in courts attempting to
identify/assess significance of mental disabilities
(e) Unjust enrichment of insane; they should pay for the
damage they do if they are permitted to live in the world
(not institutionalized)
b. Physical Disability
(a)Shephard v. Gardner – P cannot see well & falls; P’s duty of care
is of a reasonable prudent person with a like infirmity
c. Sudden medical emergency
(a)Roman v. Estate of Gobo – D (decedent) suffers unforeseeable
heart attack while driving, killing and injuring Ps. Not liable –
sudden medical emergency doctrine.
3. Special Knowledge – someone who has special knowledge or skills is required to
exercise the superior qualities reasonable under circumstances.
a. Hills v. Sparks – operating machinery; D knew of the risks to passenger,
but didn’t warn, and passenger died.
4. Low Intelligence – held to reasonable person standard. No escape of liability just
b/c he does the best he can, or if he acted same as others of similar intelligence.
5. What Actor is Required to Know (reasonable person) (R2T §290)
a. Qualities/habits of human beings and animals and the qualities/
characteristics/capacities of things and forces, to extent of common
knowledge in the community; and
b. the common law, legislative enactments, and general customs in so far as
they are likely to affect the conduct of the other or third persons.
B. Reasonable Woman Standard
a.Conduct Of A Reasonable Man: The Standard (R2T §283)
1. 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.
b.Whether to make allowance for women’s “bad” driving – women drivers were thought to
be less able
1. The Lake Shore & Mich. Southern R.R. Co. v. Mary Miller
2. Calvin Daniels v. Richard Clegg
3. Tucker v. Henniker
c.Whether to require women to exercise extra care in light of their “fragility” – women
getting on an off trains and street cars (which often didn't stop fully or for very long) less
agile, given their long skirts and possible "delicacy."
1. Eichhorn v. Missouri, K. & T. RY. Co.
2. Asbury et ux. v. Charlotte Electric Railway, Light & power Co.
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 3. Little Rock & FT.S.RY.Co. v. T Ankersl
4. Henry Fox, Administrator v. Town of Glastenbury
a. Women as passengers – women passengers less accountable for warning male drivers
of impending danger
5. Denver & R.G.R. Co. v. Lorentzen
6. Denton v Missouri, K. & T.RY.Co.
C. Negligence per Se – Specification of Particular standards or duties
a.Attempts by judges to define the duty owed (what a reasonable person would do when
specific facts present) as a matter of law / The difficulties when judge’s announce a set
standard of care
1. Marshall v. Southern Railway Co. – P driving, hit D’s construction. Court says as
a matter of law, P must exercise reasonable care in keeping a lookout for
obstructions while driving.
2. Chaffin v. Brame – P driving at night, hit D’s truck, b/c blinded by another car’s
headlights. D negligent in leaving car in middle of the street. No contributory
negligence by P (b/c he was driving safely), court says as a matter of law.
a. Limitation of a judge-made rule. When presented with diff factual
circumstances, its application may not work
b.Negligence per se – defining duty by “statute”: Is the plaintiff in the class of persons the
statute is designed to protect, and is the injury in a class that the statute is designed to
protect? If you cannot establish negligence per se, you can use this as evidence to
establish negligence (but easier to establish negligence per se).
1. Martin v. Herzog – D driving, hit P, who died. P negligent driving w/o lights.
Statute that says vehicles must have lights. P’s violation of statute used as
contributory negligence, but not as negligence itself.
2. Rains v. Bend of the River – P’s son (18yo) buys gun from D, then shoots himself.
No negligence per se b/c suicide is not the type of injury the statute is designed to
protect against.
3. Wright v. Brown– dog bites someone, statute says dog must be quarantined for 14
days. D (dog warden) lets dog free be4 14 days. Dog bites P. D says P not within
class of persons, but court says she is b/c class is the community in general. But P
never alleged a claim of an injury that statute designed to protect (bite from a
diseased dog), so no negligence per se.
c.Excused violation of “statute” (excuses to negligence per se)
a. Actor’s incapacity (medical emergency, mental incapacity, child)
b. Neither knows nor should know of compliance (night driver’s taillight
goes out w/o his knowledge)
c. Unable to after reasonable diligence to comply
d. Confronted by emergency not due to own conduct (brake failure)
e. Compliance would have caused a greater risk to actor or others
2. Impson v. Structural Metals Inc.- D’s truck tries to pass P w/in 100 ft of
intersection, and hits P. Statute prohibits this. D says he is excused, denied.
II. Breach
A. Risk/Utility Formula: Assessing Reasonable Care by assessing risks and costs
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a.Breach: Assessing reasonable care
1. Brown v. Stiel Problem (and related hypos)
a. If D (contractor) knows has to choose btwn building with steel (cheaper
but kills or injures 3 ppl) and concrete (injures 1), is he committing an
intentional tort if he uses steel & someone gets hurt?
(a)Intentional tort – have to be certain ppl will be killed/injured, but
this is a statistic, not certainty. Not intentional tort. Also, intent is
to build cheaper, not to hurt anyone.
(b)If concrete used, person injured – not liable for intentional tort b/c
no safer way to build.
(c)Wood safer than concrete, no liability to use concrete b/c using
wood holds up progress (ppl will not build due to liability).
(d)If specific work/method negligent, then liable.
2. Criteria for assessing what constitutes “unreasonable risk”
a. R3T §3 – Negligent if actor doesn’t exercise reasonable care under
circumstance. Factors: foreseeability of harm occurring, severity of harm,
burden of precaution.
b. Indiana Consolidated Insurance Co. v. Mathew – Issue on whether D
breached reasonable care standard. Court decides no.
(a)Not reasonable to expect D to start mower outside garage
(weight/size of mower + that’s what garages are for)
(b)D very careful, only filled ¾, used funnel, & careful not to spill
(c)Not reasonable to expect D to push mower out of garage (would
have created danger to D). Exercised prudence in calling fire dept.
Human life/safety more important than property.
c. Stinnett v. Buchele - P hired by D to paint his roof; P fell and says b/c of
D’s failure to supply a safe working area. D didn’t breach duty.
(a)D is Dr, not a roofer (no knowledge), but P has. D reasonable to
assume P knows, and D complied with all of P’s requests. Also, it
was an obvious danger, nothing hidden.
d. Bernier v. Boston Edison Co. – Car accident, driver lost control, hit a light
pole (designed & maintained by D); Polestruck Ps (not inviting or
expecting danger – pedestrians).
(a)Duty of care breached – very foreseeable (force sufficient to break
poles was very slow, high rate of poles being struck), and
alternative design available to reduce risk.
b.Learned “Hand” formula: Impose liability where: The burden of precaution is less
than the probability of harm x the gravity of harm. If action would be very burdensome,
not reasonably expected to take that precaution (social utility).
1. United States v. Carroll Towing Co. – Accident and P suffers loss; barge employee
could have avoided it. Absence of barge employee negligence b/c burden of
precaution (paying employee) less than prob of harm (very probable) x gravity (a
lot of damage).
2. Benefits of hand formula: (1) social efficiency, (2) fairness
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 3. Only works when property is involved (can’t determine value of life)
4. Alternatives: (1) when danger is foreseeable, must act to deter, (2) community
expectation approach
c.Apportioning responsibility
1. Comparative fault – each faulty party bears burden of losses. Each party liable
only for % responsible.
2. Apportionment among defendants – multiple tortfeasers; they split damages based
on % of fault.
3. Joint and several liability – Multiple tortfeasers; P can enforce against either. P
can get judgment on either, but not for more than full amt of damages.
4. Contribution – if only 1 D pays full amt, not fair. So co-D would pay D his
portion, called contribution.
5. Insolvent or immune tortfeasers – 1 D is immune to tort liability. Co-D incurs all
expense of damages, and cannot get contribution.
6. Several liability and comparative fault – Determine % fault of each D, and D only
liable for his share. P can only pursue each D for the % fault.
B. Proving Negligence: Inference & Custom – P must prove negligence more probable than not
a.Proving Conduct
1. Santiago v. First Student, Inc. – P unable to show evidence that D was negligent.
Cannot pursue claim.
2. Upchurch v. Rotenberry – car crash; too much conflicting evidence. Jury decides
the truth, cannot overrule; can reasonable go either way.
b.Evaluating Conduct
1. Thoma v Cracker Barrel Old Country Store Inc. - P slipped on liquid in store. P
could not show through evidence than D was probably negligent by conduct.
Mere presence of liquid insufficient. To recover, P must show D created or had
knowledge of the dangerous condition.
2. Wal-mart Stores, Inc. v Wright – Wal-mart negligent based on its own manual
(higher standard), but not by reasonable person standard. Court says only
reasonable care must be taken (doesn’t want to discourage businesses from
employing a higher degree of care b/c they would be liable to stick to it).
3. The T.J. Hooper – Court says although radios weren’t the industry custom, it
would have prevented the accident, and so should have been used b/c of its
availability and not burdensome for D to use (use common sense). Courts want
advanced technology to be used (progress).
C. Res Ipsa Loquitur - R2T § 328D: “It may be inferred that harm suffered by the plaintiff is caused
by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in
the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff or
third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is
within the scope of the defendant’s duty to the plaintiff.”
a.Byrne v Boadle – Barrel rolled out of warehouse, hitting P. Barrels don’t just roll out w/o
negligence, and warehouse under exclusive control of D. Res ipsa.

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 b.Application of res ipsa means P can go to trial, and jury will be instructed that if elements
of res ipsa are satisfied, then they can infer negligence. Doesn’t mean P wins if he gets
res ipsa.
c.When does Res Ipsa apply? - Probably negligence and probably the defendant
1. Probably defendant: Harm-causing event must be tied to the defendant
a. Giles v. City of New Haven - P, elevator attendant keeps pressing buttons;
goes for a wild ride. Tries res ipsa, but cannot prove it was probably D
(who maintains elevator). Could have been P’s negligence.
2. Probably negligence: Event must be one that generally does not occur absent
negligence
a. Warren v Jeffries - Car runs over child (who dies); no res ipsa b/c cannot
be determined if negligence caused accident, or if there was something
wrong w/ car (not examined after accident).
b. Widmyer v Southeast Skyways, Inc. – Plane crash; apply res ipsa b/c of
technology it is unlikely plane crash to happen w/o negligence.

III. Actual Harm– Compensable Injury

A. Preston v. Cestaro – Car accident, D hit P. P claims back injuries. Found that back injuries caused
by previous incident. The negligence must have actually caused harm in order to recover
damages.
IV. Cause in Fact
A. The but-for test of causation (harm wouldn’t have happened but for D’s negligence)
a.R3T § 28 - Tortious conduct must be a factual cause of physical harm for liability to be
imposed. Conduct is a factual cause of harm when the harm would not have occurred
absent the conduct.
b.Salinetro v. Nystrom – P pregnant, but doesn’t know. Gets x-rays, Dr doesn’t ask if she’s
pregnant; and fetus dies. No causation b/c injury would have occurred even if Dr asked
(b/c she didn’t know, she would have said no).
B. Concurrent & sufficient causes, indivisible injury
a.Landers v East Texas Salt Water Disposal Co. – 2 D’s responsible, but cannot tell % fault
of each (so cannot apply but-for test). So, all of the wrongdoers will be held jointly and
severally liable for entire damages.
C. Substantial factor test - R3T §27: If multiple acts exist, each of which alone would have been a
factual cause of the physical harm at the same time, each act is regarded as a factual cause of the
harm.
a.Anderson v Minneapolis, St. Paul & Sault Ste. Marie Railway – Fire started by D, but
combines with another fire of unknown origin. D liable as if he alone at fault.
D. Proof: What Was Caused?
a.Present value approach to apportionment: The damages for negligence are decreased in
contributory negligence when negligence of D is great and other causals are present.
1. Dillon v. Twin State Gas & Electric – Boy trespasses on D’s bridge, but D knows
this happens a lot. Boy loses balance, grabs wire and is electrocuted, dies. If wire
were insulated, boy would have prob survived. D’s should have known the risk,
and insulated it.
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 b.Alternative causation
1. Summers v Tice – 3 ppl Hunting quail. 2 Ds shoot and P gets hit. We don’t know
who actually shot P, but since they were both negligent, both liable. D’s burden to
offer proof of apportionment (b/c D has more knowledge).
a. Doe v. Baxter Healthcare Corp. - Unsuccessful attempt to rely upon
Summers v. Tice alternative liability. Blood transfusion from multiple
sources; P gets HIV. Must show that other sources were probably not
responsible in order to hold D liable.
c.Lost opportunity doctrine/value of the chance - hard to quantify, but possible through
expert testimony. At present only for medical malpractice
1. Lord v. Lovett – P injured in accident. D (dr) negligent, and P lost the opportunity
for a better recovery
2. Approaches to lost opportunity:
a. Preponderance test – P must prove that D deprived P of at least 51% of a
more favorable outcome than p rec’d. If P can’t reach 51%, no recovery, if
P can, than P can recover for full extent of injury (can be unfair).
b. Relaxed-Causation test – P must prove D’s negligence more likely than
not increased harm to P or destroyed a substantial possibility of achieving
a more favorable outcome. Damages rec’d in full (NY has similar test).
c. Quantified-Causation test – P establishes lost opportunity; get quantified
value; P recovers differential.
3. Loss of chance can apply to future consequences which may never occur. The
damages are for the increased risk of harm, even if harm hasn’t yet occurred.

V. Proximate Cause
A. Proximate Cause R3T §29 - An actor's liability is limited to those physical harms that result from
the risks that made the actor's conduct tortious.
a.Medcalf v. Washington Heights Condominium Ass’n, Inc. – P wants to enter building,
buzzer doesn’t work; while waiting for door to open, p gets attacked. No proximate cause
– no foreseeability (buzzer is to protect residents of outside intruders).
1. Scope of risk – how to determine what risk is that makes D negligent?
a. Likelihood of harm x burden of precaution
b. Foreseeability
c. Also, depends on facts of each case. Use substantive analysis.
b.Palsgraf v. Long Island Railroad Co. – D tries to help man into RR (negligently), & in
process man drops package, which unknowingly contains fireworks, which explode,
injuring P. No proximate cause – not foreseeable that there would be an explosion, and it
was the explosion, not the D’s negligence that caused P’s harm (use foreseeability test)
1. Dissent (Andrews): Uses Direct Consequence test - says a person who is negligent
to any class of persons is negligent to everyone who is in fact injured. Not a
matter of foreseeability alone.
B. Scope of Risk Principle - D liable for harms only within the scope of risk he negligently created.
Not liable for harms outside the risks he negligently created.

12
 a.A harm or risk is not within the scope of the risks negligently created by the defendant in
any of the following circumstances:
1. Harm/risk of this type not foreseeable by reasonable person
2. If there is foreseeability, but reasonable person would not have taken greater
precautions to avoid it than D did (no breach)
3. Harm/risk to class of persons P falls in not foreseeable to reasonable person
C. The Rescue Doctrine R3T §32: If D’s tortious conduct creates a situation where rescue is
necessary, D is also liable for harm caused to the rescuer.
D. Manner of the Harm Rule – Harm/risk of a kind that is foreseeable is within the scope of risk
even if neither the exact harm or exact manner of occurrence could have been foreseeable.
a.Hughes v. Lord Advocate – Workers leave manhole open, boys don’t fall in but drop a
lantern in which causes fire, and boys burned. It was foreseeable that leaving the manhole
open & lantern unattended would cause injury, even though the manner it happened was
unforeseeable.
b.Doughty v. Turner Manufacturing Co., Ltd. – Worker knocked cover into molten liquid,
but no splash. A few minutes later liquid erupted. Even though eruption (exact harm) was
unforeseeable, risk of harm by dropping it in was foreseeable.
E. Extent of Harm Rule
a.Thin Skull / Eggshell Plaintiff - R3T §31: When D’s tortious conduct causes harm to P,
that b/c P is more sensitive causes a greater or different type of harm that might be
reasonably expected, D is liable for the full extent of the harm.
b.Fire Cases – tortfeasers responsible for full extent of damage caused by fire, even if not
foreseeable.
F. Intervening Person or Force - R2T §34: When there’s an intervening act or force, D liable only
for harms that result from within the scope of foreseeable risk.
a.Intervening intentional/criminal acts – traditionally, would be superseding cause, but not
so much anymore. Now ask if intervening act was foreseeable.
1. Derdiarian v. Felix Contracting Corp.- no barrier for construction site
(negligence). Car drove into site (intervening act); caused injury. Foreseeable for
this type of accident to happen if no barriers, so there is proximate cause.
2. Sheehan v. City of New York – bus stops in wrong lane, truck hits bus, passenger
injured. No proximate cause b/c intervening act not a foreseeable risk. Bus driver
provided an occasion for the accident, but not the cause of the accident. Also,
driver in wrong lane, but law is only to protect ppl getting on and off, not
passengers on the bus.
3. Ventricelli v. Kinney System Rent a Car, Inc. – D sold car to P w/ defective trunk.
P trying to close trunk when a parked car jumped up and hit him. Maj says
foreseeable for P’s inconvenience in closing the trunk, but not to be hit while in
safe (parked cars) area, where he could have been at any time. Not a proximate
cause. Dissent: Uses manner of harm rule. Foreseeable that P would have had to
close trunk even on highway, and gotten hit, doesn’t matter the manner he got hit,
only that it was foreseeable.

13
 4. Marshall v. Nugent – D caused a car to go off road, and helping to get back on. P
stayed on road to warn oncoming traffic and was hit. The risk D created was still
present when plaintiff was injured, so there is proximate cause.
5. D claims that he is not responsible for the plaintiff's injuries because the injuries
were caused by AB (3rdperson). If D is negligent, but P’s injuries caused by AB,
D can still be responsible, if D should have reasonably foreseen that his
negligence would result in AB’s act. If a reasonably prudent person would not
have foreseen it, then D is not liable.
b.Intervening forces of nature – only liable if foreseeable risk

14
Defenses to the Negligence prima facie case
I. Contributory/Comparative Negligence
A. Contributory negligence: Failure to exercise reasonable care for own safety
a.Legal effect of contributory negligence:
1. Traditional, common law rule = complete bar to Pl’s recovery
2. Comparative negligence systems
a. Pure – (NY) if P’s negligence contributed to the injury, figure out % fault
of each party
b. Modified– if P’s negligence contributed more than 50% of the injury, then
no recovery. If less than 50%, then P can recover total damages less P’s %
fault. Should jury know how damages will be apportioned? Better for jury
to know b/c then some ppl will know & others not.
B. Butterfield v. Forrester – P negligently riding & hit an obstruction (left by D). Traditional rule
was that P’s contributory negligence barred any recovery.
C. How responsibility is “compared” or “assigned”
a.Costs to each party of avoiding harm
1. Wassel v Adams – P attacked/raped while at D’s hotel. D didn’t inform P of recent
attacks in area (not a but-for cause b/c prob wouldn’t have changed P’s actions). P
contributed b/c of her naivety. Jury decides apportionment (P is 97% at fault),
judge won’t change this even though he feels it should have come out a diff way
b/c it could have come out either way. D’s costs to avoid ($20k for security
guard); and 3% of damages came out to $25k.
b.Balance multiple factors - R3T §8: Factors for assigning percentages of responsibility to
each person whose legal responsibility has been established include:
a. the nature of the person's risk-creating conduct, including any awareness
or indifference with respect to the risks created by the conduct and any
intent with respect to the harm created by the conduct; and
b. the strength of the causal connection between the person's risk-creating
conduct and the harm.
D. Traditional Exceptions to the Traditional Contributory Negligence Bar
a.Last Clear Chance or Discovered Peril - P is negligent but D has the “last clear chance”
to avoid injury yet negligently inflicts injury. ***This doctrine is mostly abandoned in
jurisdictions that have adopted comparative fault systems
1. Discovered Peril – applies above rule only if D actually discovered P’s peril
b.Defendant’s Reckless or Intentional Misconduct
1. Traditionally, not allowed to raise the defense of contributory negligence in the
context of intentional torts or willful, wanton or reckless torts. ***The vitality of
this rule is unclear after the adoption of comparative fault
a. Barker v. Kallash - 15-year old pipe-bomb maker (engaged in illegal
activity) barred from suing firework powder provider and others

15
 b. Alami v. Volkswagen of America - Drunk driver not barred from suing
Volkswagen on design defect claim following car crash. Recovery sought
b/c design caused severe injuries after the crash.
E. Causation and Scope of risk in comparative fault
a.P’s negligent conduct may completely bar recovery where it is a superseding cause or
brings about injury outside the scope of risk created by D
1. Exxon Company, U.S.A. v. Sofec, Inc. - Plaintiff as a superseding cause
b.Where P’s negligent conduct is not a cause in fact or proximate cause of his injury, it
does not reduce recovery
c.Causal apportionment – Both P & D negligent; liable for % of fault
1. If % cannot be quantified court may allow or deny full recovery, or use
comparative fault apportionment
d.Minimizing damages rule – If P can minimize damages caused by D, but doesn’t P cannot
recover full amount.
F. Allocating all responsibility to D (to protect P from his own fault)
a.R3T §7: No reduction in P’s recovery when D undertakes to treat or repair a condition
caused by P’s negligence or otherwise protect P from his or her negligence
b.Duty to Protect
1. Bexiga v. Havir Manufacturing – machine injures P’s hand, who was negligent in
using it. Court says D should know this type of accident can happen, and has duty
to protect P by installing safety devices.
2. Factors courts will look at to assign a special duty to protect:
a. Whether the risks are reciprocal – P only endangering himself
b. Whether D knows limitations regarding P’s ability to exercise care for
himself
c.Entitlements
1. Leroy Fibre Co. v. Chicago, M. & St. P. Ry. – P stacks flax on own land close to
RR, sparks from RR cause fire. Unreasonable risk taken by P? Court says no
contributory negligence b/c P is entitled to use his own land as he wishes.
II. Assumption of the Risk
A. R3T § 2. Contractual/Express Assumed Risk(when permitted by law) absolves D from liability
for future harms P might incur. But, D has burden to prove he warned P of risks.
a.Boyle v. Revici - woman who seeks out alternative cancer treatment and is expressly told
that treatment is not FDA approved/not guaranteed cannot recover when that treatment
fails
b.Exception: Unenforceable b/c of public policy
1. Tunkl v. Regents of University of California - admission to hospital conditioned on
signing a release immunizing hospital; signed release held void as contrary to
public policy (compulsory assumption of the risk).
2. Moore v. Hartley Motors – release form signed be4 taking ATV class valid b/c (a)
not violation of public policy, (a) service is available elsewhere, (b) fairly entered
into (no unfair bargaining, P could choose not to, not essential)
B. Implied assumption of the risk – doesn’t bar recovery, but diminishes it in proportion to P’s
conduct. BUT Actual knowledge or voluntary decision may be relevant in apportioning liability.
16
 Most courts that have adopted comparative fault systems for secondary implied assumption of
the risk which may reduce P’s recovery.
a.Primary assumption of the risk (limited duty/no negligence) – activities that involve risk
of injury, plaintiff impliedly accepts the risks; D not negligent; risk of activity.
1. Turcotte v. Fell – Jockey injured; caused by D. But the danger is inherent in the
sport, and by P’s consent in engaging, bars recovery. No duty to exercise ordinary
care, only to avoid reckless or intentional torts.
b.Secondary Implied (Unreasonable) - Just b/c P chose to confront a risk (like jaywalking);
doesn’t mean D is released from duties of ordinary care. P’s negligence judged under
contributory negligence.
c.Secondary Implied (Reasonable): Confronting a Known risk; D is negligent
1. Crews v. Hollenbach – D negligently strikes gas line. P works for gas company,
went to fix it and was injured. P assumed the risk by virtue of his employment
(had knowledge of risk; appreciated risk; voluntarily exposed himself to the risk).
Type of assumption of Short-hand description Legal Remedy
risk
Express Contract/agreement Bars recovery (if legal)
Primary implied D not negligent; inherent risk of activity May bar recovery
Secondary implied P unreasonably confronts known risk Comparative negligence
(unreasonable) negligently created by D
Secondary implied P reasonably confronts known risk negligently May bar recovery
(reasonable) created by D

Limiting or Expanding the Duty of Care According to Context or Relationship

I. Limiting Duties According to Class or Status of the Parties
A. Landowners’ Duties to Trespassers, Licensees, Invitees, and Children
a.Traditional entrant categories/duty

Entrant Category Definition Duty owed by landowner/occupier

Invitee Person on the premises (1) at least in Reasonable care
part for the pecuniary benefit of the
landowner or (2) on premises open to
the general public
(business visitors, general public)
Licensee Person on the land with permission, Avoid intentional, wanton, or willful
but with a limited license to be on the injury (w/ exceptions)
premises (traditionally, social guests)
Trespasser Person who has no legal right to be Avoid intentional, wanton, or willful
on another’s land injury (w/ exceptions)

17
 1. Circumstances where landowners/occupiers may owe duty of care (beyond
traditional, limited duty) to licensees and/or trespassers:
a. Reason to know of entrant and danger
b. Conditions v. actions
c. Frequent trespassers in limited area
d. Foreseeable highway user
2. Gladon v. Greater Cleveland Regional Transit Authority – P invitee only in station
& on train. P on tracks, so is a trespasser on tracks where he was injured (but he
was pushed onto tracks, so can’t be held liable as a trespasser). So, D’s duty is to
avoid reckless/willful acts only. So question was if conductor acted reasonably
once she saw him (for jury to decide).
b.R2T §339: The Attractive Nuisance Doctrine – Landowner liable for harms caused to
trespassing children if lured onto land b/c of an artificial condition there if:
a. landowner knows or has reason to know that children are likely to see
condition & trespass, and
b. landowner knows or should knows the risks to children, and
c. children don’t appreciate the danger b/c of their young age, and
d. burden of landowner of maintaining or eliminating the danger slight
compared to risk to children, and
e. Landowner fails to exercise reasonable care to eliminate danger or
otherwise protect children
2. Bennet v. Stanley – boy trespassed to neighbor, and drowns in pool; mother dies
trying to save him. Attractive nuisance doctrine – D owes duty to protect child
(pool unguarded, very dangerous), Mother – rescue doctrine.
c.Open and obvious danger
1. O’Sullivan v. Shaw – P gets injured while diving headfirst into shallow end of
pool. Danger so apparent, that D does not need to warn.
d.Eliminating the traditional entrant categories
1. Rowland v. Christian – P (D’s guest) injured by faucet. P knew of risk, but didn’t
warn P. Maj. says D has duty to warn P (traditionally, P would be licensee, and
then D wouldn’t be liable, but here eliminates the distinction btwn licensee &
invitee (Dissent goes for the traditional classifications.
e.Lessors - landlord must use due care (to be determined by evidence) in maintenance of
property
1. Pagelsdorf v. Safeco Insurance Co. – tenants moving out, P (movers) injured
when railing they were leaning on crumbled b/c of dry rot.Better policy is to
require landlord to exercise due care for maintenance (question is whether he did
use due care. Must find out if there was notice of defect, its obviousness, etc). No
longer using traditional entrant categories.
B. Medical Malpractice – Negligence of Dr to use reasonable care under circumstances.
a.Reasonable Care
1. If Dr has skill that exceeds avg Dr, standard of care based on his own skill.
2. Law recognizes Drs have diff abilities, but minimum keep up with developments
and use best judgment.
18
 3. No guarantee to good result; Dr liable only if negligent.
4. “Two schools of thought” Doctrine - When there are medically acceptable
alternatives, a Dr is not liable for using one method as opposed to another as long
as it is reasonable for Dr to use that method (b/c it’s widely accepted).
a. Walski v. Tiesenga – P goes into surgery; bad outcome. P’s expert says he
would have used a diff method. Dr not unskillful or negligent, just of a
differing opinion than the expert. D’s method was not proven
unacceptable.
5. A deviation or departure from accepted practice, traditionally based on
community standards [locality rule], but use similar areas as basis [modified
locality rule].
a. Vergara v. Doan – P saying Dr negligent, but D says use the modified
locality rule, which permits a lower standard of care. The reasons this rule
was established no longer apply. Technology has allowed rural doctors the
same training, facilities, etc as an urban doctor.
b.Good Samaritan statutes
1. Emergency care - Any individual … who in good faith renders emergency care at
the scene of an accident or emergency to the victim, or while transporting the
victim to a hospital or other facility where treatment or care is to be rendered,
shall not be liable for any civil damages as a result of any acts or omissions by
such person in rendering the emergency care (also provides relief from civil
liability for practitioners rendering emergency care).
c.Non-Medical Practitioners – standard not based on medical standards, only according to
their school of belief (chiropractors, Christian scientist
d.Proving negligence – common-law exclusion of treatises as hearsay
1. Smith v. Knowles – P could only show medical treatises to prove D’s negligence.
Treatises ok to provide medical facts, but legally insufficient to provide a standard
of care (experts better for that).
a. Possible ways (in some jurisdictions) for P to establish standard of care
w/o relying on expert testimony:
(a)Manufacturer’s directions
(b)Defendant doctor’s admissions
(c)Medical practice guidelines
(d)Arguments that public policy requires ordinary (reasonable) care
standard
(e)Res Ipsa Loquitur
e.Res Ipsa – P must have unusual injuries (not of the kind that happens w/o negligence),
while P is unconscious, has to be injured during medical treatment.
1. States v. Lourdes Hospital – P under anesthesia, cannot show how injury
happened. Use res ipsa. Expert necessary to explain to jurycommon knowledge in
medical community. Jury decides if negligence more probable than not, and
probably D.
2. Ybarra v. Spangard – P under anesthesia, use res ipsa, but many ppl involved,
cannot prove probably defendant (exclusive control), & all cannot be responsible
19
 b/c of diff functions. Court holds all D jointly liable, b/c Ds knows more info, and
they should come forward with it.
f. Informed Consent
1. Harnish v. Children’s Hospital Medical Center – Dr failed to disclose a risk of
operation, and P injured. P may not have gone through w/ operation if he knew of
the risk. Important to have informed consent – ppl have right over their own body
(dignity).
a. Is this something Dr should have known & informed patient of? – expert
testimony needed for this
b. Would a reasonable person still have proceeded with operation? – jury
question.
II. Relationships or Their Absence
A. Nonfeasance – No Duty to Act (as opposed to misfeasance – negligence in actively doing
something)
a.R3T § 37 - An actor whose conduct has not created a risk of physical harm to another has
no duty of care to the other unless a court determines that an affirmative duty is
applicable.
1. Yania v. Bigan – D came to P’s coal-mining operation; P taunted D, which
induced D to jump in trench & he drowned. P didn’t help him. No duty to act. P
not responsible for D jumping into water (D is adult making own choices).
B. Exceptions to “No Duty to Act” (Affirmative Duties):
a.R3T § 39. D’s prior conduct, even though not tortious, creates the risk of harm
characteristic of the conduct, has a duty to exercise reasonable care to prevent or
minimize the harm.
b.Voluntary Undertaking– R3T §42: actor who voluntarily undertakes to render services to
another has a duty of reasonable care if (1) failure to do so increases risk of harm or (2)
person relies on actor’s exercising reasonable care (b/c of imminent danger).
1. Wakulich v. Mraz – Ds induce minor P to drink full bottle of alcohol for $; P
becomes sick. Normally no duty to act, but they voluntarily undertook caring for
her by checking in on her, and also b/c by barring a call to 911, they took it upon
themselves to care for her.
c.R3T § 38. - When a statute requires an actor to act for the protection of another.
d.R3T § 40. If there is a special relationship then owe duty of reasonable care.(ex.
Employer/employee, business/customers, school/students, landlord/tenants).
1. Farwell v. Keaton – D’s friend gets hurt. D could have helped w/o endangering
himself. B/c of special relationship, D had an affirmative duty of due care
(implied understanding that D would help his friend).
e.Constitutional Duties
1. DeShaney v. Winnebago County Dept. of Social Services– Son badly injured by
father. Many witnesses, no one said anything. Mother suing based on XIV
amendment. No duty – meant to protect citizens from state, not citizens from each
other, so state only has to exercise reasonable care.
a. Dissent – says that state created an exclusive method of dealing with
domestic abuse, and the ppl who had authority didn’t take care of it. State’
20
 conduct produced the risk of harm to the child (by not allowing others to
get involved, so they HAVE to).
2. Bases for “constitutional duties” b/c person no longer in control of themselves,
but state has complete control, so state owes a duty:
a. P was in custody and officials intentionally failed to protect her;
b. P was victim of selectively unfavorable treatment of disfavored groups;
c. P had an entitlement created by state claw and the officials deprived her of
that entitled without due process; or
d. officials actively created the danger that resulted in harm to the plaintiff.
**** (dissent goes here)
C. Duty to Protect from Third Persons
a.Defendant’s relationship with the plaintiff
1. Posecai v. Wal-mart Stores, Inc. – P robbed in D’s parking lot. Court says there is
a duty as a matter of law. The greater the foreseeability of harm, the greater the
duty of care imposed.
a. Approaches in determining duty of businesses/landowners:
(a)Specific harm rule – if aware of imminent specific harm
(b)Prior similar incidents (foreseeability)
(c)Totality of circumstances - takes into account other factors that
may affect foreseeability
(d)Balancing test – balances the interests (risk-utility)
b. Comment (j) to § 7: The proper role for foreseeability. The extent of
foreseeable risk depends on the specific facts of the case. Thus, courts
should leave such determinations to juries unless no reasonable person
could differ on the matter.
c. Comment (f) to § 37 – reliance on foreseeability happens more often in
cases of affirmative duties, & especially in cases of protecting 3rdparties
(& involving criminal acts). Courts may develop rule or balancing tests to
determine foreseeability, or to determine insufficient evidence of
foreseeability, so no jury can make a finding.
d. Comment (d) to § 37 - business may provide occasion for risks or 3rd part
misconduct. Here, business must exercise reasonable care.
2. Marquay v. Eno – P (students) abused by D’s (school) personnel. Statute says they
must report the abuse (negligence per se); no legislative intent for statute to infer a
duty. School has affirmative duty b/c of special relationship (imposes on them
duty of reasonable supervision).
b.§41: Defendant’s relationship with dangerous persons, actor owes duty to 3rd person b/c
of risks established from the relationship.
a. Special relationships can be: (1) a parent with dependent children, (2) a
custodian with those in its custody, (3) an employer with employees, and
(4) a mental-health professional with patients.
2. Tarasoff v. Regents of University of California – patient confesses to therapist that
he wants to kill someone. Therapist (D) warns campus police, but not P. D kills P.
D had duty to warn P and exercise reasonable care to protect foreseeable victims
21
 a. Problem: confidentiality – lawsuits may arise. But court says safety more
important (cost of warning is low). Also, maybe false warning. Expert
testimony to show if therapist acted prudently or not.
3. Brigance v. Velvet Dove Restaurant, Inc.- D (restaurant) negligently served
alcohol to a clearly intoxicated person. Commercial vendor has duty. Driving
intoxicated high risk & very foreseeable. But also must show proximate cause.
a. Dram Shop Laws – establish the liability of establishments arising out of
the sale of alcohol to visibly intoxicated persons or minors who
subsequently cause death or injury to third-parties—those not having a
relationship to the bar, as a result of alcohol-related car crashes and other
accidents.
III. Limiting Duties to protect against special types of harm
A. Emotional Harm
a.R3T §45 Intentional (Or Reckless) Infliction Of Emotional Disturbance - D is subject to
liability for that emotional disturbance and, if the emotional disturbance causes bodily
harm, also for the bodily harm.
1. GTE Southwest, Inc. v. Bruce – boss terrorized employees. To prove intentional
infliction of emotional distress must prove:
a. D acted intentionally or recklessly
b. Conduct was extreme or outrageous
c. D’s conduct is substantially certain to caused distress and did cause P
severe emotional distress
d. D knows of risk, and fails to precaution against it, when cost is so low
2. May infringe on free speech rights/ onslaught of claims. Mere insult insufficient.
Btwn strangers not enough, must be a relationship.
a. Exception: racial slurs in employee-employer context
3. Comment (l) Emotional disturbance caused by harm to a third person - limits
recovery to bystanders who are close family members and who
contemporaneously perceive the event.
a. Homer v. Long – Therapist (D) seduces P’s wife; causes divorce. D not
liable to P (only to wife). P was close family member, but was not present,
so D didn’t intend to harm P (unknown presence wouldn’t work either b/c
D didn’t have the intent). *Maybe if P was a patient of D’s there’s a
special relationship, then D could be liable, or if D did it on purpose to
hurt P.

b.Negligent Infliction of Distress or Emotional Harm

1. Defendant’s negligent acts put the Plaintiff at immediate risk of personal injury
Parasitic Traditional Bar Impact Rule Physical manifestation/
Damages
objective symptom rule
Note 1, p. 570 Rest. § 46, comment Mitchell, p. 569 Text pp. 570-71
(b)
P can recover D not liable for Slightest impact to P in danger can recover for fright/shock
22
from pain & negligence if only P in danger permits even where there is no “impact” if:
suffering that causes emotional recovery for
• the fright/shock results in physical
results from harm. Liable if P emotional distress;
harm or
another tort by D placed in immediate no recovery w/out
danger of bodily “impact” • other objective physical
harm & emotional manifestation
distress results.
General rule of Subject to many Mostly rejected; • Some courts have relaxed the rule (P
law exceptions, inc. recovery now only needs to show a medically
where def’s neg acts permitted w/out diagnosable emotional disorder)
put Pl at immediate impact
• Some courts have abolished the
risk phys inj.
physical injury/manifestation
requirement all together
• Rest § 46 has rejected physical
injury/ manifestation requirement
Tort → Physical Tort → Physical Tort → Physical Tort → Emotional Harm → Physical
Harm → Harm → Emotional Harm → Emotional Harm
Emotional Harm Harm Harm

2. Emotional distress/harm resulting from injury to another

(a)Tort → Emotional Harm (no physical harm)

Grube Dillon Thing Rest. §47

P saw last look of person
getting hit by train, and
saw the carnage. P
operated the train.
Zone of danger
• P w/in zone of danger
of impact
• P fears for own safety
• Causes immediate
shock/trauma
Mother & sister saw car
strike and kill victim.
Bystander
(guidelines approach)
Is it foreseeable that P
will suffer emotional
harm from injury to third
person?
Consider:
• P close to scene?
• P observe accident?
• P/victim closely
related?
23
P not present at time of
injury, but once she found
out her son injured,
rushed to scene, found his
body.
Bystander Bystander (Rest.)
(bright-line rules
approach)
• P must be closely • 3rd person suffers
related to victim serious bodily injury
• P must be present at • P suffers serious
the scene at the time emotional distress
of the accident
• P “perceives the event
• P must suffer serious contemporaneously”
emotional distress
• P is close family
member
No recovery here, P Yes, recovery above No recover; wasn’t
caused it! factor satisfied here. present at time of injury

c.No physical risks (Tort = the emotional harm)

1. R3T § 46 (b). – D’s negligent conduct which directly inflict emotional disturbance
is liable if it occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is especially likely to
cause serious emotional disturbance.
a. Sacco v. High Country Independent Press, Inc.- P left D’s employment
(newspaper). D told police P stole photo negatives and proofs. P can
recover. Serious or severe emotional distress to the P was a reasonably
foreseeable consequence of the D’s negligent act or omission.
d.Toxic Exposures: R3T § 46 (c) Exposure to a toxic substance requiring a significant
latency period, and subclinical effects that do not rise to the level of bodily harm, do not
satisfy the zone-of-danger requirement (nor would it constitute impact)
1. Potter v. Firestone Tire and Rubber Co. - D dumps carcinogens into local water. P
drank water. P cannot recover b/c fear of cancer not recoverable, unless P can
show there’s a good chance of getting cancer.
a. Could use lost chance doctrine here, recovery discounted by probability of
getting cancer).

24
Strict Liability
I. Historical developments
a. The rejection of strict liability and adoption of the fault/intent/unlawfulness requirement
b. Writ of Trespass
i. Applicable where P could show D directly applied physical force to person/property
ii.P need only prove force and direct application to person/property
iii.Strict liability – No requirement to show fault
c. Trespass on the (similar) Case
i. Applicable where D caused harm to P BUT harm not direct or not caused by physical
force
ii.P must show “fault” (negligence or intent/unlawfulness)
d. Historical evolution of Writs
Traditional Forms of Action (Writs) Broad adoption of fault, Brown v. Remnants of Strict Liability*
Kendall
Medieval to mid-19th century Mid-19th century forward Mid-19th century forward
Writ of Trespass = Requirement of fault (negligence, Nuisance (?) - Bamford v. Turnley
intent/unlawful) even for direct
strict liability for direct, forcible England: Rylands v. Fletcher
harms
injury
U.S.: Abnormally Dangerous
Activities; Rest. (Third) § 20;
Dobbs pp. 687-91

II. Circumstances where strict liability still imposed

a. Nuisance
i. Private nuisance - Substantial and unreasonable interference with (invasion of) P’s
use/enjoyment of property (but would have to be by a normal person’s standard, no
recovery for an especially sensitive P). P’s use of property is custom, D’s use is not.
1. Bamford v. Turnley – D made bricks on his property, creating smoke, odors, which
entered P’s home (substantial interference). D not unreasonable, but still liable b/c
he’s getting a benefit, while P is taking the loss, so P has to be compensated.
ii.Public nuisance - Substantial and unreasonable interference with a right common to the
general public in use of public facilities, in health, safety, and convenience.
iii.P comes to nuisance – factor in determining is nuisance exists; P made choice to come
there. Also, prob already compensated b/c of lower price of property paid due to
nuisance.
b. Strict Liability for entities that escape from your property
i. Rylands v. Fletcher- D builds pond over old mine shaft, which breaks and overflows into
P’s mine shaft. No negligence or intent. D liable based on strict liability for entities that
escape from your own property.
c. Abnormally Dangerous Activities
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 i. R3T § 20: D strictly liable for abnormally dangerous activities
1. An activity is abnormally dangerous if:
a. the activity creates a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors; and
b. the activity is not one of common usage.
ii.R3T § 22. Wild Animals: An owner or possessor of a wild animal is subject to strict
liability for physical harm caused by the wild animal (not commonly domesticated).
iii.R3T § 23. Abnormally Dangerous Animals – if the owner knows or has reason to know
that animal has dangerous tendencies abnormal for the animal's category is subject to SL
for physical harm if caused by the animal’s dangerous tendency
III. Rules on Strict Liability
a. If an activity is normal - "a matter of common usage" - in the community, the strict liability rule
does not apply and liability is limited to negligence and intent.
i. B/c it’s acceptable. Also, if activity is common, more likely to benefit community
b. Imposed for abnormally dangerous activities: Hazardous Wastes/Blasting & Explosives/Poisons
(like crop-dusting)
c. Environmental statutes
d. § 349 Limitations on Strict Liability - When it comes to the intervening acts of third persons,
innocent, negligent, and even reckless acts of third persons present no barrier to strict liability –
nor do forces of nature (but some courts cut off liability if intervening act of god)

IV. Products Liability: Design and Manufacturing Defects

a. Rationale for Strict Products Liability
i. Nonreciprocal risks – If D imposes risk on P, but not vice versa, there should be CL based
on fairness.
ii.Deterrence – If there is SL, mfr’s will make products safer to avoid liability costs
iii.Moral basis - When D engages in a dangerous activity for his benefit, but at the risk of
harm/loss to the P. D would still proceed, knowing of danger.
iv.Consumer expectations – mfr’s represent their products as safe & healthy
v.Loss Spreading: mfr’s can more easily spread the costs that result from injuries caused
by defective products by raising prices and/or purchasing insurance.
vi.Sometimes there are harms a negligence inference won’t reach (hard to detect
negligence (like driving), so must use SL).
b. R3T § 1. One engaged in the business of selling or otherwise distributing products and sells or
distributes a defective product is subject to liability for harm to persons or property caused by the
defect.
c. R3T § 2. A product is defective when, at the time of sale or distribution, it:
i. contains a manufacturing defect (departs from intended design, although no negligence)
ii.is defective in design (when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design, and the
omission of the alternative design renders the product not reasonably safe)
iii.is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided

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d. Manufacturing Defects
i. Establishing the prima facie case
1. Commercial Seller/Sale
2. Defect (at time left D’s control)
a. consumer expectation test
b. product departs from its intended design
3. Causation - Defect was actual and proximate cause of P’s harm
ii.P may rely on circumstantial evidence to satisfy prima facie case; does not need to
identify specific defect (it can be inferred).
1. Lee v. Crookston Coca-Cola Bottling Co.- waitress injured when coca-cola bottle
exploded in her hand. P can’t prove specific defect (doesn’t know). In SL,
plaintiff needs to prove:
a. Product defective at time mfr relinquished control. How to prove:
i. Eliminate all other possibilities
ii.Then ask for res ipsa
b. For SL, P doesn’t need to show D was negligent, only that product was
defective.
2. R3T § 3. It may be inferred that the harm sustained by the plaintiff was caused by
a product defect existing at the time of sale or distribution, without proof of a
specific defect, when the incident that harmed the plaintiff:
a. was of a kind that ordinarily occurs as a result of product defect; and
b. was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution.
ii.Where alleged defect = dangerous but arguably natural component of food:
1. Consumer Expectation test (R3T §7) v. Foreign-Natural Doctrine
a. Foreign-Natural Doctrine: if product is natural to food, its ok. Only if it’s
something foreign in the food, then liability.
i. Mexicali Rose v. Superior Court - Chicken bone in the enchilada.
Says the injury-producing substance is natural to the product, so
court says it should be reasonably expected.
1. ****Most courts reject this.
b. R3T §7. Liability Of Commercial Seller Or Distributor For Harm Caused
By Defective Food Products. Under § 2(a), a harm-causing ingredient of
the food product constitutes a defect if a reasonable consumer would not
expect the food product to contain that ingredient.
i. Jackson v. Nestle –Beich, Inc. - Nut Shell in candy. Pecan shell is
natural to pecans, but court rejects the foreign-natural doctrine.
Court says a consumer does not reasonably expect to encounter a
shell when eating candy.
b. Design Defects
i. Establishing the prima facie case
1. Commercial seller/sale
2. Defect (at time left D’s control)
a. Rest 2d: Consumer Expectations Test
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 b. Rest 3d: Risk-Utility Balancing Test
3. Causation
ii.Consumer expectation test v. risk-utility balancing test
Consumer Expectations Test Risk-utility Balancing Test (R3T §2)
(R2T §402A)
It is more dangerous than an Risk-utility test - weighing the benefits and risks
ordinary consumer would
○ If the benefits of the challenged design do not outweigh the
expect when used in an intended
risk inherent in such design (risk-utility test)
or reasonably foreseeable
manner

• Factors relevant to asses risk

○ Likelihood that the product design will cause injury

○ The gravity of the danger posed

○ The mechanical and economic feasibility of an improved design

1. Leichtamer v. American motors Co.- P injured when jeep overturned. There was a
rollback that implied it would be safe during a rollover. But not made clear to
public that is was for side-side, not front-back. D created an expectation of safety,
but failed to warn of hazards.
2. Knitz v. Minster Machine Co.- no safety features to keep user’s hand out of area
when in use (P loses fingers). Court uses risk-utility test.
a. Risk-utility test -product design is in defective condition to the user or
consumer, if
i. It is more dangerous that an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner, or
ii.If the benefits of the challenged design do not outweigh the risk
inherent in such design.
3. Barker v. Lull Engineering- loader did not have safety net, which would have
prevented accident.
a. Consumer Expectation – can only be used for a simple product, where a
normal consumer could understand, and know what to expect
b. Risk-Utility – P needs to show defective design & proximate cause. Then,
D’s burden to show benefits of design outweighs any risk of danger
inherent.
iii.Some factors to be considered in applying the risk-utility test
1. Usefulness and desirability of the product
2. Availability of substitutes
3. Mfr’s ability to eliminate unsafe character
4. User’s ability to avoid danger
5. User’s probable awareness of the danger
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 iv.Factors relevant to whether an alternative design is reasonable and whether its omission
renders a product not reasonably safe include:
1. magnitude and probability of the foreseeable risks of harm
2. instructions and warnings accompanying the product
3. nature and strength of consumer expectations regarding the product, including
expectations arising from product portrayal and marketing
4. relative advantages and disadvantages of the product as designed and as it
alternatively could have been designed
a. likely effects of the alternative design on production costs
b. the effects of the alternative design on product longevity, maintenance,
repair, and esthetics
c. the range of consumer choice among products
v.Manifestly Unreasonable Designs - No Reasonable Alternative Design
1. Example: exploding cigar causes injury – no reasonable alternative available, but
the utility is so low, and risk of injury so high that it can be concluded that the
design is defective and shouldn’t have been marketed at all.
vi.§ 402A. - [This section has been superseded by the Restatement of the Law Third, Torts:
Products Liability.]
1. Comment i: Many products cannot possibly be made entirely safe for all
consumption, and any food or drug necessarily involves some risk of harm, if
only from over-consumption
a. Good whiskey is not unreasonably dangerous merely because it will make
some people drunk, and is especially dangerous to alcoholics; but bad
whiskey, containing a dangerous amount of fusel oil, is unreasonably
dangerous.
b. Good tobacco is not unreasonably dangerous merely because the effects of
smoking may be harmful; but tobacco containing something like
marijuana may be unreasonably dangerous.
c. Good butter is not unreasonably dangerous merely, because it deposits
cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.

II. Warning or Information Defects - Focusing on Point-of-Sale Warnings

a. Establishing the prima facie case
i. Commercial Seller
ii.Warning/Info Defect
iii.Causation (but-for may be implied)
b. R3T § 2 - A product 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 the 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.
i. Liriano v. Hobart Corp.- P injured hand by machine mfr by D. Machine sold with safety
device, but later taken off (unknown who). It is obvious meat grinder is dangerous, but a
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 reasonable person may not know of the use of safety guards, and that they are available,
so the manufacturer had a duty to inform of this alternative, and at a relatively low cost.
1. Duty to provide information
a. A mfr’s failure to provide info about the dangers and risks associated, may
make an otherwise safe product dangerous and defective.
b. Warnings alert users to risks that are not obvious, or to inform users of
safer alternatives.
c. Cost of warning low, so risk-utility balance: always place a warning?
i. Warnings pollution - the necessary warnings can get lost within the
unnecessary, trivial warnings. This is case-specific.
ii.Reasonability of warning
1. Characteristics of user group
2. The understandability and clearness of the warnings
d. Most courts reject SL for unknowable dangers (warning not possible)
2. Obvious Danger
a. If danger is obvious, product not defective for lack of warning (D can use
contributory negligence defense – open & obvious danger)
i. However, if the mfr foresees that harm will occur in spite of
obvious danger, mfr may be liable for design defect if it could
easily warn and failed to do so.
b. Open and obvious danger may prevent liability for failure to warn under
consumer expectations test, but not necessarily under a risk-utility test.
c. For allergies - must place warning if the allergy is one that a lot of people
have. Also, it must be an allergy to an ingredient that may not be
obviously is in it. Also considered, is the extent of harm caused by the
allergy.
3. Causation
a. If a warning is needed, the plaintiff would have to have read, understood
and heeded the warning. Otherwise, the failure to warn cannot be the
cause of the harm (causation test). But courts usually presume that the
plaintiff would have done this, and leave the burden on the defendant to
prove otherwise.
b. Shifting of the burden on defendant once plaintiff proved that the failure to
warn "greatly increased the likelihood of the harm that occurred."
ii.Carruth v. Pitway- smoke detector insufficient warnings. Warnings must be reasonably
clear, of sufficient intensity, and in such form to convey the types of risk and their extent
to a reasonable person.

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