Battery

Intent
o Intend the injury (or worse, intend the injury and maliciously)
Polmatier v. Russ (Delusional thinks hes attacking the Duke of Wellington): You dont have to
have a sound understanding of the risks, you just need to intend the harm.
o Intend the contact
White v. University of Idaho (Piano teacher touching the back): You dont need to intent the
harm, just the inappropriate (impermissible) contact.
Voserny v. Puttney (Boys kicks other in knee during class): You just have to intend the
inappropriate contact.
o Substantial certainty
Garrett v. Dailey (Boy pulling out chair from old woman): You just have to know that harm
will be caused by your actions. What the offensiveness expresses.
Harmful and/or Offensive
o Harmful
Easily to establish, physical, or mental harm is caused to an individual.
o Offensive: Reasonably offensive to personal dignity.
Fisher v. Carrousel (Black man yelled at in lunch club, plate snatched): It is the behavior that is
offensive, combined with the contact.
Brzoska (Dentist with HIV): Even if a reasonable person would find it offensive, it needs to be
a rational offense. POLICY.
Mink v. University of Chicago: It is offensive to experiment on someone without their consent.
Consent
o Consent is measured by an objective standard: what any reasonable person would consent to. Consent
is judged by outward manifestations, since we cannot know someones thoughts.
OBrien v. Cunard Steamship (woman holding out arm to be vaccinated): It is someones
outward manifestations that determine consent.
o Consent is judged by the social norms, or conventional meanings we ascribe to actions.
Woman tells man that her husband wont be home: That normally is an invitation for sex.
Elkington v. Faust (man sexually abused his adopted daughter, but she consented): You cant
consent to certain things at a young age, and there is something strikingly harmful about the
long-lasting damage he has caused.
o Consent is contemporaneous
State v. Williams (part of sorority ritual until it was her turn and she said no): Consent is
removed the moment you say stop.
o Markley v. Whitman (boy rushed by classmates): You have to give consent to be part of
the activity. Also, the setting, and what is acceptable for the setting.
Consent in activities
o Hackbart v. Cleveland Browns (football player injured by retaliatory hit): You consent
to what falls in line with the objective and goals of the game, what is better for the
activity.
o Boxer died from being punched in the heart.
Consent to illegal acts (More than law is important, oral sex, sitting on a bench)

o Majority view: Your consent to the illegal act does not remove your right to sue for tort
liability.
o Minority view: Your consent removes your right to sue for a tort claim.
Informed Consent
o Kathleen v. Robert (lied about having an STD so she slept with him): the consent is
wrongly procured, and he intentionally misled her=battery.

Medical Battery (there doesnt need to be harm)

It used to be specific consent

o It was very specific, you could only operate exactly where you had permission.
o Mohr v. Williams (he fixes the other ear): You can only do exactly what you have consent to do. (He
couldnt do this under general consent either).
General consent
o More general in nature, the surgeon may extend the operation to remedy a diseased or abnormal
situation in the area of the original incision. As the medical community would see fit.
Kennedy v. Parrot (fixing cysts): Okay to go beyond consent.
Rogers v. Lumberman (taking out ovaries): Nothing unexpected and consent could have easily
been procured.
Conditional Consent
o Ashcroft (blood transfusion only from family, gets AIDS): if consent is conditional, you cannot violate
the condition.
Emergency Rule
o Moss (young boy, sisters give permission): death needs to be imminent.
o You can proceed if a reasonable person would consent.

Self Defense
Types of Defenses:

Defense or privilege: Plaintiffs allegations are true, but I have a defense or privilege.
Prima Facia: Plaintiffs allegations are not true.

Subjective
Particularize: Take into account their
differences (psychological, physical).
First Person Point of View: What the person
sees.
Good Faith: Mental state, I sincerely believed
that I needed to kill him to save myself.

Objective
Standardize: take a standardize normal person,
and what they would be justified in doing.
Third Person Point of View: What an impartial
observer sees.
Reasonable/Correct: From the point of view of
other reasonable people.

Basic Rule of Self-Defense:

If someone reasonably believes that the use of physical force is necessary to prevent or repel, s/he may take
reasonable steps to do so. This is judged by what a reasonable person being attacked would do.

You can only use fatal force in your own home, or where you cant retreat.
Fraguglia: Only force sufficient to repel the attack.
Chapman: the use of force needs to be against the one who created reasonable apprehension.
Nelson: we particularize by taking into account the psychological and physical characteristics, but more so
physical, it is easier to observe.
Dupre (hotel guest beats up bell boy): there is more leniency for the attacked, it is hard to judge how much
power you are using, you have to intend the injury.

Circumstance

Subjective:
o Leidholm (battered woman who killed her sleeping husband): Take all the events and circumstances of
her history with husband into account.
Objective:
o Hattori (Japanese exchange student): Though they were scared, it wasnt reasonable. You cant exhibit
your paranoia onto strangers.
Rights:
o People v. Young (tries to stop white men (cops) from beating up a black boy): You only get the same
rights of the person you are attempting to defend.
o An employer can intervene for his employee-special relationship.
o State v. Young (Killing your wifes lover is only justifiable if you catch them in the act): Sometimes
there are competing interests.
Retrieval
o Kirby v. Foster (took $50 he thought he was shorted and quit)
o Pure seizure of property, dont need to go to court, can immediately take it back.
o Colorable claim of right- goes to court.
o Fraud- You can exercise force against.
Mechanical Devices
o Katko (spring gun outside of barn: You cannot do indirectly what you cannot do directly sufficient
force.)
So you can never use fatal force indirectly.
English Common Law: You can put spring guns on a wall if you post in the village.

Assault
Rule: Actor is subject to liability for assault if
a) Act is intending to cause harmful or offensive contact or apprehensive or such
b) The other is made apprehensive
Assault presentno battery.
Battery presentno assault.
Assault: We have a right to live in society without being put in fear of personal harm.

I. De. S. v. W. De. S. (Hatchet in door at wife): There is no contact in assault.

Beach (threatened by unloaded gun): Mental apprehension is an aspect of assault, even if there is no actual
fear.
Read (landlord sends men who rule up their sleeves): The threat needs to be imminent, but you dont need to
sit around and wait.
Manning (heckled pitcher): A miscarried assault that harms someone is a battery.

Reasonable

Cullison (doesnt take gun out of holster): A reasonable person would think that was enough for imminent
harm.
Ingraw (one time stalking, black man, white woman): He was too far away to cause actual fear.

Apprehension

State v. Barry (didnt see loaded gun pointed at him): Assault needs knowledge for apprehension.
Wilson v. Bellamy (Raped with unconscious): They sexually assault her, they committed battery, but there is
no assault, because there was no contemporaneous apprehension.
Trogden: inducing someone to give up a legal right, or commit an act that he otherwise would not commit, by
making him apprehensive of imminent bodily harm is an assault.

Trespass
Elements:

Act:
o Smith v. Stone: If you are carried without consent and trespass, you cannot actually trespass.
o Gilbert v. Stone: Coercive trespass is still trespass. There is still a voluntary action if someone puts a
gun to your head and asks you to do it.
Entry:
Intent: The entry must be intentional, but the intent to harm is not needed (SL).
o Southern Counties v. RKO (Wrong location, cigarette fire): You dont need to intend the harm, just the
entry, even if its a mistake.
o Longnecker (De-bagworming trees):
o Scribner v. Summers (waste onto neighbors property): Your action that causes something else to
invade others property is trespass (immediate).
o Case of Thorns (trimming hedges fall): Not a trespass because there wasnt a substantial certainty, just
a risk.
Wrong: Tort against persons property.
o Cleveland Park v. Perry (Tennis ball, swimming pool drain): The wrong is exceeding the scope of
authorization.

Privilege
Unconditional: Can enter, dont have to pay.
Conditional: Can enter, have to pay.

Public Necessity: the whole public is threatened, and they cannot receive damages.
1. Harrison (destroy all liquor): To preserve property against more damage. But there needs to be
substantial certainty.
2. Surocco v. Geary (stopped fire by destroying homes): They are not made worse off, but the public
benefits.
Public Taking: It isnt fair for one person to pay the burden of everyones benefit.
1. Needs to be justified, has to make the public better off.
2. Even if you are justified, you have to pay compensation.
o Wegner (Police cause damage trying to capture suspect): One person shouldnt have to pay the burden
of everyones benefit (are made worse off).
o Monongahela Navigation v. US (take property for bridge): You can take for public good, but you need
to reimburse.
Private Necessity: Have a privilege to be there, but have to pay damages.
o Ploof (docking at a private island): In an emergency, to avoid greater damage, you have a privilege to
dock at the island.
o Vincent (keeping boat at dock during storm): Not a trespass. You get the benefit of staying, so you
cant shift the burden of the damage you cause onto others.

Negligence
Shift to 2s.

Unavoidable Accident
1. Couldnt have been avoided.
2. Shouldnt have been avoided.
Excuse and Justification
1. I didnt do what I should have, but Im not responsible.
2. I did the right thing.

Movement from Strict Liability to Fault Liability

Weaver v. Ward (shoots another in the duty of the king): Before, he couldnt avoid it, he was required, now, he
shouldnt have avoided it.
Kendall v. Brown (Transition, hurts another while separating dogs) The standard governing is conduct is due
care (not extraordinary care).
o Negligence analysis: This is what you should have done differently.
Butterfield: If the plaintiff is contributory negligent, plaintiff will lose.
Nitro-Glycerin Case (Wells Fargo, opened up with hammer, explosion): Not negligent if you cant be
expected to understand the risks.
o Formulation of the standard of reasonable care: the measure of care against accident is the one that
a reasonable person would use if they were the person, and consider that persons interests.

Contest between SL and FL: FL is fair for reciprocal risks, but SL is fair for non-reciprocal risks.

Strict Liability
o Rylands v. Fletcher (reservoir broke and damaged mines): You are getting the benefit, and they
shouldnt have to bear the burden.

o Strict Liability for escaping things: Do what you want on your own property, but when it escapes,
you are liable.
Unless you are using the land for what it is naturally suited for.
Fault Liability
o Losee v. Buchanan (boiler explodes): Everyone benefits from living in an industrial society, and you
can do the same thing on your property. No fault.

Negligence
Elements to Negligence:

Duty
Breach
Cause in Facts: Injury caused
Proximal Cause: Injury caused as a result of breach

Duty:

Categorically presumed (w/ exceptions): Duty is presumed except in certain circumstances.

Reasonable foreseeability: Duty of care when there is reasonable foreseeability that when you dont exercise
reasonable foreseeability, you may cause harm. Evolved from average.
o Blyth v. Birmingham (frozen pipes in England): What would a reasonable man do during an average
year? Orient yourself to what normally happens.
o NY v. Bailey (flood):
o Van Skike (Toy lighter, lighter fluid): It is not foreseeable that the child will be inspired to play with
fire. Not foreseeable to the causation of harm. Doesnt trigger an obligation to be careful.
o Lugo (Vultron, spinning blade toy): HF, no value to sharp blades, low burden to make dull.

Rules & Standards

Rule: Determine a fact to determine a breach. (Speed limit). Tend to be over/underinclusive
Standard: Use due care, need to make an evaluative judgment. (Adhere to driving norms).

Determining Duty
o Stagl (Delta old womans hip):
Unreasonable as a Matter of Law: The burden of preventing would exceed the benefits of doing so.
o Clinton (uninsulated power line): It would be unreasonable for every power line to be insulated.
o Grace (graphic corrosion on pipeline): It would be unreasonable to dig up and check.
o Kimbar (light in camp woods): The precaution is unreasonable, it would take away the social good of
camp.

Classical Doctrine: No Duty to Act (Protects personal freedom)

1. If you arent legally responsible for putting another in peril, youre not legally obligated to prevent harm that
is coming
2. Persons who do come to the aid of others in peril are under a duty to exercise reasonable care.

Posners Flowerpot: If a flowerpot is going to fall on someones head, you have no duty to help them. But if
you had a duty, breach is easy to show.
o No duty to act: their action did not increase anyones foreseeable risk of harm.
o Kitty Genovese, Good Samaritan
o If you have a duty, easy to show breach.
HF: precaution of yelling is low cost and high value.
ARP: freeze when they see this.
Freedom of Contract (wanted to protect K)
o Hurley v. Eddingfield (Dr. wouldnt help an ill man for no reason): He owes no duty to help. Freedom
of contract, he can treat who he wants to treat. He didnt agree to treat them, so there is no duty.
o Losee (Steam boiler explodes, suing boiler co): They only owe a duty to those they are in contract
with.
Szabo: Imposes a duty between those that have contractual relations and to which they have
not contractually agreed.
Freedom of Property
o Buch v. Armory (Boy/trespasser loses hand at mill): No duty (legal responsibility) of care become that
would impair the free use of property.
o Union Pacific Rwy v. Cappier (Ran over trespassing man and died): No duty to act because he was
trespassing. There was never a negligent act because he trespassed. No carelessness because he was
trespassing.

Special Duty to Act

No duty to act with three general exceptions

o Control: your control of the instrumentality means you have a duty to help even when you are not
negligent.
Ayers (fingers in the escalator, contrast to Kappier train): Def had causal control of the
escalator (not culpable). Is in the best position to mitigate the harm .
J.S. v. R.T.H. (Wife, husband who sexually abused, horse): She has unique access to
information about her husbands sexual abuse, better than anyone else (not all about control).
Outgrown of Tarasoff (Crazy boyfriend at Berkeley) The psychiatrist has a unique
control or capacity to protect third parties from harm by patient. He is in a good
position to judge how serious the threat is.
Folsom v. Burger King (security system, terminated contract, stabbing): You are in unique
possession to know that there is trouble. But different jurisdiction. They didnt make the
plaintiffs any worse off, because they didnt stop other people from helping.
Modern version of Eddingfield: Freedom of contract case.
Custody
o Duty to protect 3rd parties from harming at hands of person in custody
Dudley (Felon, halfway house, raped-killed Debbie): Plaintiff should fall within the class to
whom duty who is owed. Affirmative duty to people in immediate vicinity. Reasonable
foreseeable that he would commit crime. Protect from harming.
Mirand: A school steps into the rule of parents and needs to protect students from classmates.
Protect from harm.
Assumed Duty

o Have a duty to act (rescue someone in peril) that they were not legally responsible for creating because
they have brought that responsibility upon themselves.
Increase of peril to plaintiff
Misleading the plaintiff into thinking the peril had passed
Posting a lookout at railroad encourages the plaintiff to count on that lookout.
Depriving the plaintiff of other help
Undertaking and then abandoning a rescue at sea deprives the ship of other help
Admitting a sick patient, then refusing to treat.
Foslom: Not negligent, didnt go any of these three things.
Variable Duty

Trespassers (Enter without permission)

o Not to do anything willful or wanton or aggressive act. (No traps)
o Child trespassers: duty to protect children from attractive nuisances.
Licensees (With permission, but do not benefit. Vendor on campus)
o Take the premises as they are, but there is a duty to warn of concealed dangers.
o Social guests used to be categorized as licensees, now some jurisdictions label them as invitees.
Pinnell v. Bates (woman broke her leg at friends home): Miss. We want to treat guests as
lessor standards of invitees because your house is your castle.
Invitees (For the benefit of the owner)
o Duty of reasonable care, keep premises in reasonable safe condition
o Modern: come at the encouragement of the inviter.
Single Standard *Not officially a law in many places*
o Basso (Motorcycle pothole helping): Does being a trespasser make your life less worthwhile? Only
one standard for one pothole.
o Pinell Dissent: Very few have actually adapted this standard.
o Recreational Trespassers
Children: If you have something that will attract children, you need to make it safe
Issues with Single Standard (shift from property to tort)
o To whom is a duty owed (Putnam): Duty is owed to anyone who is a plaintiff.
Old rule, mallyou owe a duty to make it safe for the storebut not to the customers, and the
store doesnt have an obligation towards customers, because they are not in control. But no one
owes a duty to costumer.
o Duty to protect premises liability
Dodgers stadium problem, what do you have to do to protect them from crime.
o Open & obvious risks.
Hazard that is open and obvious, but should it be eliminated in standard of reasonable care?
Significant: always a barrier to recovery, then you are using less than a reasonable standard of
care, but not always avoidable.

Breach
The Hand Formula

B < P (L)

B=Burden of precaution
P= Probability of harm
L= Magnitude of harm

Breach
Hand Formula

Did Def use reasonable care?

o HF is one test. (Institutions)
Begins with Pla coming forward saying what should have been done.
Look for way to avoid harm at lowest cost.
Or, look for way to avoid most harm at least cost.
Davis (Under train, legs, blue flag): Lots of harm done, walking along train is high cost, but blowing the horn
is very low cost.
Brotherhood Shipping v. St. Paul Fire (Overtopping, ships damaged in the harbor): There is a high probability
of great damage, so there should be a high cost solution.
o **Look at cost and effectiveness**
Snyder v. AABB (Blood bank, HIV): Stanford test is unreasonable, but HepB test is easy and cheap. For
magnitude of harm, it is worth it.
NNV v. AABB (Same sort of case in California): You cant fault BB for following the expert standard. Disagree
with Snyder.

Average Reasonable Persons *About individuals*

What can we ask of a reasonable person?

o Vaughan v. Menlove (haystacks start fire, dumb): Judged by objective standard, it isnt fair for others
to pay the consequences of his stupidity. You have to get up to the standard level of competence. If
youre not, thats your tough luck.
o Lady who falls in sidewalk ditch she forgot about: If you participate in an activity, you are responsible
to meet the level of standards for activity.
o Tires blow out on freeway: Some things everyone knows, responsible for. Experts are held to a higher
standard of knowledge.
Emergency Rule: For circumstances you dont expect.
o We expect less of people in exceptional circumstances.
Myhaver v. Knutson (Turned left into incoming traffic): In light of all the circumstances, did
they do the reasonable thing?
Some argue that the emergency rule is just another aspect to consider, and it tilts juries.
Degrees of culpability: La Marra
o Ordinary negligence
o Gross negligence
o Recklessness
Police Officer running light without siren.
o Willfulness & Wantonness
Obj: Reasonable person wouldnt proceed
Sub: Conscious appreciation of the risk

Disabilities *All about imposing risks and fairness*

Physical
o Permanent
Smith v. Sneller (blind man sidewalk).
You depart from the regular standard, to a standard for disability.
Hold accountable to the disabled standard.
Children: Compare to a child of the same age and intelligence.
But not when participating in an adult activity (driving), not fair.
Case
o Sudden: You are not liable unless you should have reasonably foreseen.
Foot cramp is sudden and unforeseen.
Mental
o Traditional Rule:
Wright v. Tate (Low IQ in alcohol car accident): Held to the standard of normal intelligence.
Jolley v. Powell: Dont take insanity into account. Policy: guardians will guard them.
o Modern Trends
Knowledge
Breunig (delusion while driving): You cant know that youre having a delusion, then
its not a delusion. But its not fair for us to live like this.
Theisen (falling asleep in the car): Contrast to Breunig, you know youre falling asleep,
so you are responsible.
Subjective Standard
CTW (pedophile): Using a subjective standard on the pedophile, you should have
known that you control your urges, so stay away.
Berbarian (Alzheimers nurse): Apply a flexible capacity-based standard because of
his illness. She has a heightened duty of care.

Valuing collateral objects/Economic Analysis

Reasonable risk is determined by how valuable the end is, and how likely you are to succeed.
o Eckert v. LLRR (saves girl from train, dies): Value of exposing himself to risk is very high, so he was
justified (didnt recover though).
o Carlsbad (Boys in front of trains): The value of their thrills isnt high.
Brotherhood: Value the cost v. benefit. High cost of loss, high cost of precaution. Reasonable care = Efficient
care.
o Doesnt always work. Hard to value life. Davis, Snyder.
How do you value life? It used to be your capitol asset.
Shilling: We make judgments each day about the value of our lives.

Custom

Rule: Determine a fact to determine a breach. (Speed limit). Tend to be over/underinclusive

Custom: Practice of some group with respect to an activity.
o Raim v. Ventura (young girls head broke glass): HF hard to apply, optimal thickness is difficult to
decide, just should be in a range.

Traditional rule: Custom is due care itself. Whats reasonable is what people do. You should do what people
normally do.
Modern Rule: Custom is evidence of care, but not due care itself. Needs to be reasonable care. It is a floor, not
a ceiling.
o The TJ Hooper (tugboats, radios): The custom of an industry may not be sufficient for due care.

Professionals: held to an expert (higher) standard of care.

In malpractice, you have to present expert testimony to show that they did not adhere to the standard of care.
Customary care is due care.
o Stepakoff v. Kantar: What an average or normal psychiatrist would do, is a psychiatrists duty of care.
Who is a professional?
o Esoteric knowledge
o Ethical obligation
o Individual obligation (learning curve)
Rossell v. Volkswagon (Crash, battery on passenger side dripped on little girl): Need to have a
duty to the clients.
Blood banks are given an expert label, obligation to whole country.
Riggins v. Mauriello: Departure from standard, good faith if there are two suitable options.
How to attack professionals
o Attack the standard
o Then say that they applied the wrong standard
Helling v. Carey (Glaucoma test under 40): Profession custom is wrong, use HF, test is cheap
and effective.

Relevant Community

Strict locality: Same community. Hard for plaintiff to find an expert. In-group membership.
Modified locality: Same or similar community: There is a different level of expertise for different places.
o Snyder v. AABB: Stanford used very sophisticated tests, but NJ doesnt have that same capacity.
National Rule: Standard of competence of medical expertise. Minimum standards of competency.
o Vegara v. Doan (Bad delivery of a child): Physician must exercise that degree of skill, care, and
proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to
which he belongs, under similar circumstances.

Medical Malpractice: Informed Consent

Duty to give informed consent so patient can make a knowledgeable choice.

o Obj test: What would a reasonable person consent to?

Statutory Negligence: Negligence per se

Martin v. Herzog (Buggy without lights): Standard rule, breach the statute and your contributory negligent and cant
recover. Breach is negligence itself.
The Rule

Safety Statute: Statute is about protecting from harm

o Pelkey (Skating rink): Not a safety statute, trying to protect morality.

Type of injury: Directed against the type of injury at issue in the case
o Di Ponzio (Car left on, rolled and hit): turning off injury is to promote safety so there isnt an
explosion.
Class of persons: The plaintiff is included in the class
o Snapp (Storage is disarray): Firefighters are the protected class.
o Schooley (Liquor to minor, friend hurt): Minors were the ones protected by the statute.

Weight of the violation (3 approaches, varies by jurisdiction)

Conclusive
o Negligence per se. The violation of the statute in itself is negligent.
o You need an emergency doctrine.
Tedla v. Ellman: (Walking with traffic, deaf) Under conclusive you need an exception (they
blew it) for when it is safer to depart from the statute.
Walker v. Missouri (Train blocking intersections during brake failure): Rule: Avoid the greater
harm.
Presumptive as prima facie
o We presume the failure to follow the statute is negligence, but you can rebut it. You just need
compelling evidence to show why you didnt do it.
o Burden of proof that they need to overcome.
Evidentiary
o (Seen in children cases): When children are involved, we treat the statute as evidence.
Problems with Per Se (Abstraction)
o Mussivand (Person with STD take precautions): But not negligence per se: Abstraction renders the
statute useless as negligence per se because they are not getting beyond the minimum imposed by
common law.

Excuse v. Justification

Excuse: Relieved of responsibility

o Krebs v. Rubsam (light off, fell stairs): Excuse: Its beyond my control (the better excuse).
Justification: Take the right precaution

Statutory Strict Liability: Tries to get rid of defenses.

Glue sniffing statutes: If the child who buys glue is always contr neg, we need to get protect children with
statutes.
Lead paint statutes: To protect small children.
o Whether you recognize the excuse that they didnt know they needed to comply.
o Lawyers give legal advice not to know.
o Bank that may just let the property be abandoned.
What should a reasonable person know?
Choice between fault & SL: Fault is norm, SL is the exception.

Res Ispa Loquitor

Evidence

Circumstantial & Direct

Specific & General Evidence
o Rational: the def is in the best position to have evidence about what happened, fairer for them
to have to exculpate themselves than plaintiff prove
o General: 99 yellow cabs, 1 red
o Specific: I have yellow paint on me.
Conjecture & Reasonable Inference
o Do you have enough circumstantial, physical, and specific evidence to infer a case? Enough evidence
that you can reasonably come to some conclusion.
o Conjecture: lightning, anyones guess.
Traditional rule
o Accident generally doesnt happen absent somebody negligence
Barrel of flour hits man on street, but no one remembers what happens. That doesnt normally
happen minus negligence.
Use general evidence to establish specific negligence.
o Exclusive control
Def was in control of the flour barrel
Physical possession or legal responsibility
o No voluntary contribution by P
He was just walking along the street, and didnt voluntarily encounter the hazard.
Distinguish wrongful victim conduct from causal participation
o Thompson v. Frankus (Fell down stairs, unlit, linoleum torn): We can only conjecture when the
evidence leaves open multiple possibilities, none of which is more likely than not given the
evidence; we can infer when the evidence makes one possibility more likely than not.
o Newing v. Cheatham (San Diego plane crash, drinking): Circumstantial is strong, but not strong
enough for directed verdict.
Planes dont generally fall out of the sky on nice days
Def was in exclusive control, the plaintiffs were in the back, owner and pilot.
Voluntary contribution: they knew he was drinking, but there is a presumption, and now there
needs to be evidence to overcome the presumption.
Relaxation of control
o Keyser: (Gas explosion with multiple defendants): You can have multiple defendants for exclusive
control, but you have to pay more attention to the duty of defs and filling gaps in the facts.
One youve identified a party, they dont need to have exclusive control. So for x to happen,
someone needs to be negligent.
Conditional Res Ispa (Second condition not met)
o Ybarra (goes in for surgery comes out with neck pain): Large group, one person needs to show theyre
not negligent, and tell who is. Threat.
To frustrate conspiracies of silence, but doesnt work when they stick to it.
Shifts burden of initial explanation to defendants.

Defenses
Contributory Negligence

Why to bar recovery:

o Causal: Since the accident wouldnt have happened without the action of the plaintiff, they are the
author of their own harm. The negligence of the defendant was only a condition.
Butterfield v. Forrester (horse pole): if he had exercised ordinary care, there wouldnt have
been an accident.
o Economic: To promote wealth, we should hold the party accountable when they have the lowest cost
to avoid the harm.
Last Clear Chance: Contributory negligence bars recovery, but not when the defendant has a last clear chance
to stop event.
o Washington Metro v. Johnson (suicide, train, high driver): Surely you are responsible, but if the
conductor could have avoided it, even after the plaintiff acted, the plaintiff can recover all the
damages. Def is 100% responsible.

Comparative Negligence

Reduces plaintiffs recovery to the proportion of the defendants fault.

o Pure: direct proportion in all cases
o 50%: apportion of fault up to the point at which the plaintiffs negligence is equal to or greater than the
defendants.
Survival from Contributory Negligence
o Davies: distinction between unreasonably endangering someones life or property and foolishly
endangering your own right or property
o Apply the reasonable person standard to determine negligence
Comparing Fault
o HF Factors
Magnitude and probability of harm
Burden of precaution
o Average Reasonable Person Doctrine
Knowledge of risk
Expert knowledge
Degree of culpability/capability (reckless, careless, gross neg, inadvertent, advertent)
Capacity
Of person
Of control/risks
Li v. Yellow Cab (turning left, hit by speeding man): Her fault is less because she is not primary negligent.
Switch to comparative negligence.
o Case by case
o More fair (more like jury practice)
Ferguson (father-son, power line): Knowledgeable company that imposes great risks on unknowledgeable
plaintiff. Sometimes lack of knowledge cuts against you.
Champagne (Indian res, suicide, no counseling): The plaintiffs lowered emotional capacity gives more
burden to the knowledgeable defendant. Comparative negligence is more subjective evaluation of ARP.
o Two Steps:
Existence of contributory negligence is done by objective standard
Degree of relative fault by subjective standard

Blazovic v. Andrich (bar fight, throwing stones at signs): Authorizes the comparison of negligent-intentional
since substantial certainty is on the same continuum as highly unreasonable risk of harm.

Assumption of Risk: waive a duty of care

Classical Doctrine: Implied Assumption of Risk

A/R is about choice, not carelessness

Plaintiff knowingly and willingly proceeds in the face of negligence
o Perrys Pizza Waiver (rollerblading): You have to sign the waiver to rent, but you are in a better
position to prevent your harm. But is it irrational to sign?
o Clayards v. Dethick (ditch, horse fell in, was aware): Not a defense because there is no pre-existing
relationship and the def has no authority to alter the plaintiffs rights. It is reasonable for him to want
to go to work on a public road.
o Lamson (Hatchet on walls, knows risk): Violate duty of care in an obvious way, you accept the risk.
Open and obvious. Better able to understand the risk of harm.
Ski waiver: the skier is in a better position to know their capabilities.
Tort v. Contract
o Farwell (Injured by fellow serviceman, RR):
Tort: Employer liable, masters are liable for employers in the course of their work.
Contract: Master of the liability
Farwell extends the contract rule: Employees assume the risks of negligent injury
created by their fellow employees as an incident of their employment.
o Control: In a better position to monitor co-workers behavior
o Compensation: Compensated for risks with higher wages
o Consent
Doctrine gets reversed
o Primary A/R: you assume risk even if people are careless
Advantage to plaintiff: less care, more fun
Plaintiff is in a better position to protect themselves from harm
There are circumstances when it is plaintiffs benefit to assume the risk.
Inherent Risks
o Steelers Fan (catches football, stomped on): You assume some risks (inherent) but not the risks above
and beyond, even if it is not foreseeable. It is not in the benefit of being a fan.
o Scott (ski track, off track, head injury)
Risk of falling is inherent, but not hitting head on a pole in a bad place.

Modern Assumption of Risk

Siragusa (door hook hit plaintiffs back): Rejects classic assumption of risk
o Employer didnt have to provide a safe workplace
o Employee had to bear employment related risks when they are sufficiently obvious
o Inefficient to externalize accident costs
Firefighters rule: Survives from classic
o Moody (Alaska adopts firefighters rule): Waive right to sue, assume risks of negligence that occasions
your presence on property.

Double compensation, employed by the public

Primary AOR *You assume the inherent risks that make the activity enjoyable, but not the increased risks*
o Scott (Skier, no duty). See above.

Express Assumption of Risk: Actual written agreement.

Expressly written document.

o Shorter v. Drury (Jehovahs Witness, no blood trans): Does not assume the risk the def will be
negligent, only assumes the possible greater risk because of religious beliefs.
Public Interest Contracts
o Tunkl: When the exculpatory provision involves the public interest, the waiver or pre-injury liability is
unenforceable.
Public Interest
Urgency: There isnt a lot of choice in an emergency.
Public Invitation: Open invitation for all to participate. Defendant normally provides
this service.
Bargaining power: Is it bargained for or coerced.
Capacity to Assume Duty: Cant perform surgery on yourself, but can assume duty
when skiing.
o Morgantown (ranching, how safe horse, well trained rider and well trained
horse): Doesnt assume duty because the plaintiff still had to do everything they
were told by def.
Children
o Cooper (teenage skier lost control hit tree): The child consent is not legally valid, so the parent does
know better than company. Parents owe their children duties of care, and those are not waivable.
o Killington (Skier hit pole): Buying the mid-week pass v. full season pass. The waiver is not
enforceable: The ski resort is in a better position to control certain things, so we shouldnt shift the
duty of the layout of the slope to the skiers. Policy overrides contract.

Actual Cause: Breach caused the injury

Single Cause (one breach)

o Barnes (steel piece, eye infection): Eye would still have been lost without breach.
But for test: But for the defs breach of duty, would the plaintiff still have suffered the same
injury?
o Sowles (hole in ice, horse, fence): Statute for fence around holes, but that wouldnt have warned a
horse.
o Ford (lifeboat not correctly, drowns): he disappeared, nothing to show that good lifeboats would save
him.
Zuchowicz: Most single cause cases dont go on in strict but for if you have neg and the type of harm neg is
protecting, inferred. Def has to prove otherwise.
Counterfactual But for
o Dillon (falls from bridge, electrocuted): His pre-existing condition is such that the negligence doesnt
cause more harm.
Loss of Chance (not on exam)

o Defendants negligence decreases chance of plaintiffs chance of survival.

o Either the breach of the pre-existing condition may have caused the injury, neither is sufficient, neither
is necessary.
Scafidi: Doctor is liable for the lost chance of recovery.
Burden of proof shifts to defendant
Dillon v. Evanston (left something behind, surgery, die anytime): Can get damages for
emotional distress and increased risk of harm.
Kingston v. RR (two fires, merge, one unknown): Shift to multiple causation. But in this case: some
defendants breach is necessary, but no particular defendants breach is necessary.
o But for would exculpate both defendants.
o Both are liable for entire harm, and each are liable for entire harm.

Multiple Causation

Johnson v. Chapman (adjoining buildings, walls collapse): Each defs breach is necessary, and their existence
in combination with another is a necessary cause of harm.
o Indivisible injury is key to multiple causation: neither is the but for injury, both are necessary for the
harm.
o Substantial Factor Test
Slater (Oil Wells Discharge): 1/15th of the harm is not substantial.
OBrien (Asbestos, NY statute): Divide damages 7 ways.
Alternate
Summers v. Tice (Two shoot one man): Both are equally negligent, both liable, one can
exculpate, is cause not as important?

Joint & Several Liability

All defendants are liable only for total harm, but each is liable for all the harm
o Shifts insolvability/inavailability risk to defendant
There must be indivisible injury
o Right of contribution: Can sue other defendants for their portion of liability
o Indemnity: Shift of financial liability to another (employee, insurance)
o Outcome
Crotta (dropped baby on concrete): Parents cant be liable to children in torts so HD is soley
liable.
Indivisibility is sometimes a matter of law.
Comparing Negligent and Intentional Wrongdoing
o Reichert (Bar fight, killed, owner didnt call)
Compare them using comparative negligence. Divide responsibility, but as one goes up, the
other goes down, undermines responsibility.
o Veazy More common and traditional rule. (landlord, woman raped)
Rank them using J&S, often falls on negligent instead of intentional
Comparing Negligence and Strict Liability
Joint & Several
o Declined to follow

Proximate Cause (Scope of Liability)

Two dominant interpretations of the doctrine

o Within the scope of those risks that made the defendants conduct tortious.
Larrimore (rat poison, coffee, tenant): The conduct was negligent, but the explosion of rat
poison was not the result of D putting it near food.
Gorris
DiPonzio
o While there is actual cause connection, the injury is merely coincidental.
Larrimore (rat poison, coffee, tenant): The statute was violated, but in the long run, this
doesnt increase the chance of harm (someone eating poison) happening.
Sugar Notch (Tree fell on a speeding car): The breach of duty was a cause in fact, but not in an
enhancing the harm that occurred (Zuchowicz). But for test doesnt apply here.
Zuchowitz
Paslgraf (RR, open door, explosives):
o Cardozo: Foreseeability test: Particular plaintiff isnt in the scope of the risk reasonably perceived
because the risk of an explosion is unforeseeable.
Weigh the benefits and burdens of precaution for each of these risks separately.
Squibs: Eliminates the egregious.
o Andrews: Hindsight test: Directness test where the liability is normally greater. Natural and continuous
sequence.
Dellwo: Consequences follow unbroken sequences that we dont expect.
Policy: Cut off liability when the victim is in the better position to prevent the harm.
Strauss (NYC blackout, downstairs to get water): Really foreseeable, but you need to cut off
liability because it extends too fair. You may be the best precaution taker.
Aggregation of Risks
o Aggregating will make foreseeability and hindsight closer together
Wagon Mound
o Risks:
High probability risk of low magnitude harm
Low probability risk of high magnitude harm
Characteristic circumstance where the foreseeability and directness tests diverge.
o Wagon Mound I (oil spill, fire): They said the risk wasnt foreseeable.
o Wagon Mound II (oil spill, fire): The risk was foreseeable because it happened.
If you dont protect against other low probability risks, then it may not be worth it to prevent
the harm.
Special Problems
o Hypersensitive Victims: You take your victim as they come (but not hypersensitive property).
Watson
o Rescue: When you commit a negligent tort, you are also liable to anyone in the immediate vicinity
who might attempt to rescue, does try, and gets hurt.
Wagner (Cousin fell from train): You are entitled to less than perfect judgment in this type of
emergency. We understand you trying to help. Not a superseding cause.
Purchase: Ordinary negligence is within the scope of liability, but gross negligence is not.

Superseding Negligence: When do the actions of a subsequent tortfeasor cut off liability or the original
tortfeasor?
o Scott v. Shepherd (Squib, market, toss around): Not liable for tossing around because it was an
involuntary action.
o Original Negligence and Subsequent Intentional Wrong
Hines (Hobo Hollow, drop off, rape): The intentional second tort is one of those things that
makes the original tort negligent (Sheridan).
Liberty (Insurance policy to aunt who doesnt have insurable interest in baby): Negligent to
offer policy because it could incentive someone to kill the baby.
Dierker (concrete from work, dropped on car): This doesnt incentive the crime that was
committed.
o McLaughlin (Fireman, nurse, heating blocks): Old majority rule compared to Sheridan. When the
subsequent tortfeasor has actual knowledge is grossly negligent, it blocks the negligence of the
original tortfeasor.
o Godesky (Utah, roof, uninsulated wire): Rejects superseding cause and moves to comparative
negligence.
Dramshop Liability
o Largo (13 beers at bar): Bar is liable, didnt stop serving. Bar is structurally and systemic negligent,
more capacity to pay insurance. Incentivizes good behavior.

Pure Economic Loss & Emotional Harm

General Rule: No recovery for pure economic loss because the loss would be disproportionate to the action,
and too much litigation. No urgency.
o But you can recover for harm accompanied with physical harm.
o Barber Lines (Cant go to harbor, have to go somewhere else): You cant recover for just economic
harm.
Exceptions
Nine: Business Torts (preexisting relationship)
Union Oil (oil spill, fisherman lose all business): Economic loss that plaintiff suffers is
disproportionate to what others suffer, lose all business.
One Meridan (fire shut down shopkeepers): Everyones right is interfered with, but
some people suffer disproportionately.
Pure Emotional Distress
o Old rule: If you feared for your physical safety, then you can recover for your emotional distress.
Pricked with a needle, might have AIDS. There is contact, but you recover from the fear.
o Dillon (Mother out of ZoD, watched, sister in ZoD):
Standard: If it is reasonably foreseeable that she would be a plaintiff and would suffer
emotional harm.
o Thing (Mother didnt see the accident):
Three part rule:
Closely related to the injury
Present at the scene of the injury, and is aware that injury is being caused
As a result, suffers serious emotional distress- beyond what would be anticipated in a
disinterested witness would suffer.
Pre-existing relationship: may allow for pure emotional harm

o Doctors, fertility clinics, contracts (Must hold someone accountable)

Strict Liability
Insurance

Chance of loss: Chance that something will occur

Uncertainty regarding loss: Uncertainty about whether actual losses will track expected losses
o The larger unit of risks lowers the uncertainty concerning loss.
o Why insure
Dont have to pay out of pocket when time comes
Paying for reduction of anxiety
Insurance enables accident law to pay for harm done
Garrett v. Dailey: Background institution that enables reparation
o Risks
Moral Hazard: insurance induces intentional torts
Morale Hazard: insurance induces vigilance against loss
Risks are insurable when
o There is a large group of homogenous exposure units
o Accidental loss
o Economically feasible costs
o Calculable chance of loss
o Non-correlation of losses (earthquake)
Extent of liability
o Sometimes the victims are better able to spread the loss through insurance
Ryan v. RR (liability for spread fire): Everyone should have loss insurance, and the cost should
be absorbed by the insurance.
o Sometimes the injurers are better able to spread the loss through insurance

Vicarious Liability: Within the scope of employment?

Master/Servant: ER strictly liable for the torts of EE

Master/Indentured Servants: ER not liable for Ind K
o No right of control, hiring for an outcome
o Why? K is in best position to
Control the risks
Spread losses of accidents
Distribute accident costs across those who benefit from the activity
Within scope of employment? Test
o Control
Konradi (mailman, car accident, death, commuting): He has to deliver in his own car, the
company has exercised control over commuting, which normally they dont.
Care v. Activity: We dont often think of activity level, but the more you do something,
there more likely there is a problem
Dominos Pizza (auto accident, said K): Not K because they exercised control over everything.
Motive/purpose/service
o Tort committed in the service of, or motivated by a desire to serve employer

Trying to collect debt and threatened parents

Benefit
o Employers stand to benefit?
o Bushey (drunk sailor, floods the drydock): Benefit to coastguard for him to blow
off steam so they are liable.
Policy: There are some risks that are foreseeable, but you shouldnt
reduce the risks. But because they are for someones benefit, they should
be liable.
Characteristic risks: increased risk, dont want to prevent, should be
responsible.
Mary M. (DUI, take home and rape): He as the authority to take
her home. Influence is part of his job.
Lisa M. (sexual assault by ultra sound tech): In a vulnerable
position, but he doesnt have coercive authority over her.
Lane (Mongoose devices): just randomly related to the
employment.

Exceptions (19 total)

o Negligence in selecting an Ind K
Becker (sub-K runs over mans pelvis)
If the GC requires adequate insurance, K will have it
Both stand to gain by skimping insurance, so they can split and pocket the cost saved
from insurance
o Shouldnt put liability on victim
Robinson (Limo from casino): opposite of Becker rule
o Non-delegable duties: duty cannot be delegated because the public has a right to rely on the principal
Something that the agent does creates a risk because of a relationship to a 3rd person
Maloney v. Ruth (Car not repaired, brakes injure someone): You cannot delegate your duty to
keep your car in repair to a repair shop.
o Work that is peculiarly, inherently, or abnormally dangerous
Peculiar: Risks that are heightened unless a precaution is taken by ER
Good Humor (child ran over by ice-cream): Corporations have data and info we dont.
Inherently: Especially dangerous because of the particular circumstances taken by ER
Redoing steel beams, but decided to keep the post office open.
Abnormally dangerous: Especially great no matter where the activity is conducted or how
carefully it is conducted
Should shift liability to the principal so they are incentivized to use safe policies.
Ostensible Agency: Imposes liability on a subjective basis, the basis of reasonable perceptions of potential
victims.

Strict Liability

Calabresi
o Distinguishing SL from negligence when thinking about preventing harm.
o Negligence: two questions
Who is the party who might have prevented this accident (duty of care)?

Siegler: driver, company, manufacturer

What should the parties have done?
precautions

o SL
Who is the party in the best position to prevent this kind of harm?
Greatest capacity to control the risk.
Strict liability is about Zones of Responsibility: you are accountable for things that happen in that zone
regardless of care and conduct.
o Leftover from Rylands
Liability for escaping things
Ambivalent, narrowly construed, broadly construed.
o Shipley (ice and snow fall onto lady): You can do what you want with snow on your property, but once
it leaves, you are liable.
o Marshall v. Ranne (Hog bit hand on property): Strictly liable for harms caused by wild animals and
vicious domesticated animals. But only for the propensities that make them wild or vicious.
Form of characteristic risk
Does not extend to trespassers.
Defenses to SL
o Restatement 2nd
o Knowing Contributory: It was noticeable, you should have known. Care.
Not inadvertent contribution: accident that you ran into. No ordinary negligence.
Andrade (moves calf away from cow, trampled): knew that cows act that way around babies
and didnt have to be on property.
o Assumption of Risk: Choice, you knowing chose to encounter the risk.
Not inadvertently encounter.
Or left without a reasonable choice
o Determining fault of plaintiff
You knew and proceeded anyway
You werent burdened to do activity
Boundaries to SL
o Harm can be eclipsed if the harm suffered would have been just as bad without the Ds liability.
Rain overflowing ponds and flooding.
Non-doctrinal
o Lubin v. Iowa City (water main broke, used till broke): Wouldnt be fair for city to get the benefit of
lifespan and no liability.
Strict Liability for abnormally dangerous
o Exner v. Sherman (dynamite near house in hut, blew up): Abnormally dangerous activity is one that
you cannot make safe. Could have kept dynamite away from town, but would have had to carry
through streets more.
High magnitude of harm (not loss)
Risk cannot be brought down to a reasonable level either by care or less activity
The party who chooses to use the product should bear the risk of liability rather than the victim
who has no relation to the product.
o Restatement
HFesque
High degree of risk

Social

High magnitude of harm

Inability to eliminate risk by the exercise of reasonable care
Common Usage
Appropriateness to place blame
Value of recovery

o ADA
Hazardous wastes, storing or using explosives, storage of natural gas, poinsonous substances,
fumigation
o Siegler (17 year old girl, gas tanker flipped, died): Dangerous and magnitude is very high. It is difficult
to apply negligence because all the evidence is burnt up and we dont want to hold the wrong person
accountable. But, the last person you want to hold accountable is the innocent victim and if you hold
the company strictly liable, they will be incentivized to fix the problem.
o American Cyanamid (Posners opinion): Narrow view of SL, if you couldnt do anything to change the
activity to make safer we wont impose SL.
Activity level effects are the only justification for SL: We want def to think not only about how
careful they do something, but how much they do it.
No fairness justification weight
o But much SL liability that harm should not be avoided but someone should pay
for it.
No loss spreading weight
And Construe activity effects narrowly
o Patch Test Duties
No duty: Allergy to strawberries, encounter tiger in the wild.
Warning Duty: When peanuts in factory. Patch when leg falls off .001% of time.
Beyond warning: prescription drugs, incentivize to find safer drug, but drives up price.
Defenses to ADA
o Assumption of the Risk
McLane (Construction work, gas explosion): He chose to go on property and knew there was
gas, but he was not in control of the explosion that happened at another tank.
o Knowing Contributory Negligence
Rare Feline (tiger bit hand): Assumed the risk of petting a tiger, but had been led to believe it
was a safe tiger.
But ordinary negligence, inadvertently and carelessly exposing oneself to a risk, is not a
defense.
Abnormal sensitivity is a limit.
o Proximate Cause
Yukon (criminals steal and blow up explosive house):
Is the risk of what happened within what makes the scope of the activity ADA? Yes.
Mink (minks kill young because of explosion):
Is animals killing each other what makes explosions dangerous? No.
o Owner has a greater capacity to control the minks if he is warned, but that wont
happen because there is no liability.

Product Liability

Manufacturing/Design defect and Warning

Sequence to PL
o Stage I: Privity of K (Winchester)
o Stage II: Negligence liability (MacPherson)
o Stage III: Implied Warranty obligation (Henningson)
o Stage IV: Strict Liability (Escola)
Tort>K
o MacPherson (tire from Buick): Tort overthrows contract, liability when no contract. Must use
reasonable care to avoid foreseeable harm.
Issue of Information
o McDonalds Coffee (Spilled coffee, wouldnt settle, old woman): McDonalds knows about the risk
and knows that victims dont know about the risk, but thinks its better to leave them in dark because if
they inform of the risk will lose customers.
Defect: should be lower temperature (but a warning might be better because people like it hot)
Warning: difficult to transmit warning risk
o Henningson (warranty states defective product needs to be mailed back):
Why doesnt market correct: Good seller has good warranty, bad seller doesnt and consumer
dont know so bad makes more profit. Good would have to pay to make consumers
knowledgeable, then bad gives warranty, so good dealer loses out.
Some say the government should produce information so public is informed.
Strict Liability
o Escola (exploding coke bottle): Not Res Ispa because it is fiction and defacto SL, your bottle exploded
and it shouldnt have, so you are strictly liable.
o But contract is preserved
Contract is still for pure economic loss, and tort for harm
Pure economic loss protects different interests (not no physical harm) but widely
varying monetary interests.
o Casa Clara (concrete breaks, damages steel and foundation): There needs to be
harm to something besides the harm that already occurred.
Policy: difficult because of the chain of contracts, no bargaining with
subcontractor.
CE test comes from K, and warning liability is about consumer choice
o Escola 402A
Takes off: if you are in the business of selling the product and it has a defect, then you are
strictly liable for the harm caused by the products failure.
Factors
In business of selling product
Reaches consumer without substantial change
Applies even though
o Exercised all possible care
o No contractual relation
Rationales for manufacturing defect
Accident and prevention: User can only not misuse, manu in better position to control
the risk.
Loss spreading: better to disperse through all those who benefit from the activity.

Fairness: spread it through everyone who benefits

o Elmore: Liability also extends to bystanders who have no contractual relationship.
Issues with SL
o Goldberg (plane crash, altimeter, killed daughter): Two issues
Not entirely clear who is responsible for the defect (manu, installer, airline)
Not always possible to bring PL against the D you want to (hard to determine what should have
been done because dont know who to hold accountable. But parties are in contractual relations
and should allocate risk correctly within themselves.
Economic Analysis
o Kennedy: Lemons in used cars. Users are informed about product risks, but it is a public good for
people to be informed. Person who educates will be worse off, see above. SL better so manu bears the
costs.
So we dont want SL for things like rabies vaccines.
o Buchanan: Exploding coal, SL prices out the poor since 80% of the cost would be for safety.
Adverse selection: the market attracts items that are not worth the price (lemons).
Henningson (bad warranty): consumer doesnt understand the terms. See above about edu.
Manufacturing Defects: One product in a line has a defect the others dont.
Design Defects: designing the whole product in a way that could have been better.
o Circular saw, spring that doesnt properly attach.
o Borcha (risk of stroke increased, but not a better contraceptive): bad design because it wasnt more
effective but had a higher risk of harm.
o Green (nurse uses latex gloves, allergy):
Consumer Expectation Test: Did the product conform to the reasonable expectations the user
had regarding the use of the product in its normal function? Point of view of the purchaser.
Linegar: Expectation must be reasonable.
Tabieros (Blind zone in construction car): When there is an open and obvious defect,
the CE test wont impose liability.
o Risk Utility Test: How was this designed and was it a reasonably safe design? If there arent many
accidents like this then it seems like a good design. It is a relaxed application of the test.
o Barker (high lift loader rolls in bad weather when normal operator is out): There are two tests, and
only you only need one for liability. Also: RU is more strict than ordinary negligence in three ways:
Judgment of the product design, not conduct
Impute knowledge at time of trial, not design
No need for a feasible alternate reaction: just point to feature that caused the accident.
Barker as a hard case: the operator should have said they needed different mach.
Dawson as a hard case: collapsible frame may be better in other accidents. Manu should
design against the more severe harm because it will make them less liable in the long
run.
o Modern: more are litigated under RU.
Restatement 3rd
o RU only for design defects
o There is a negligence standard focusing on foresight
o P must have the burden of proof for the prima facie case for feasible alternative designs
Only there is a focus on the product, not the conduct.
Contemporary Law

o Banks (9 year old eats rat poison, thinks candy): There is no advantage to having a warning over the
chemical for throw up, it is a much better precaution.
o Denny (rejects 3rd, Jeep accident, off-roading, safety):
Fails RU: Off roading is safer the way the car is designed.
But Passes CE: But they marketed the car as safe on streets and consumer wouldnt know
otherwise.

Capacity in Tort

At a young age you cannot be negligent, but you can commit a tort.
o Garrett v. Dailey: You have to be accountable for what someone your age would reasonably know.
o Ellis v. DAngelo: A child can commit a tort if they know what they are doing.

Two standards of reasonableness

1) Conventional, what do people normally think or know when entering into some activity.
2) Prescriptive, reasonableness in this sense is a matter of fairness.
Damages
1. Compensatory: Attempt to compensate for or right the wrong.
a. Lost (eg wages,)
b. Incurred (eg medical,)
c. Non-economic injury
i. Emotional distress
ii. Shame, humiliation *Can be compensated, but not essential to establish battery.
1. Fisher v. Carrousel (Black man, plate)
2. Fisher v. Jones (Teeth taken out of womans mouth when she didnt repay the debt):
Minimal embarrassment.
d. ALL you need for the damages is the standard of proof- preponderance of the evidence.
2. Punitive
a. Punishment by verdict.
b. Blameworthy intent:. Gross disregard for the persons well-being.
c. Sometimes higher std. of proof: jurisdiction to jurisdiction.
d. Forward & Backward looking: Looking backward to judge the case, and look forward so people dont
do it again in the future.
Macpherson v. Macpherson