Lewis Torts Fall 2014 Outline

Introduction
What is Tort Law?
Tort as wrongdoing
Torts are wrongs recognized by the law as grounds for a lawsuit
All torts involve conduct that falls below some legal standard
Harm Required
All tort cases, the defendants wrong results in a harm to another person (or entity), that the law is willing to say
constitutes a legal injury
Victim has a cause of action
A claim against the person who committed the tort
Claim can be pursued in court
Torts, Crime and Contracts
Breach of contract not considered a tort
Some torts, are crimes
Criminal law aims at vindicating public interests, while tort law aims at vindicating individual rights and redressing
private harm
Non-Tort Systems
Alternatives to tort law
Can be set up to avoid all tort suits (workers compensation)
Common Questions in Tort Law
Three Questions:
What conduct counts as tortious or wrongful?
Did the conduct cause the kind of harm the law will recognize?
What defenses can be raised against liability if the defendant has committed a tort?
Definition of a Tort
Tort is conduct that is a legal wrong that causes harm AND for which the law provides a civil remedy
Intentional or failure to act like a reasonable person
Aims of Tort Law
Justice, policy and process aims of tort law in summary
Morality or corrective justice
Righting wrongs done to another
Liability is imposed when and only when it is right to do so.
Social Utility or public policy
Bases tort law on social policy or good-for-all-of us view
Not concerned with the justice of the individual but to provide a system of rules that overall words toward the good
of society
Figuring out a set of rules of liabilities that is good for society overall
Process
Rules must be made with the legal process in mind
Looking inward at the law, it has to do with a guideline that al judges and juries can follow by the book and not left
up to the judge and juries discretion
Potential Conflicts
Conflict between decisions based on individual justice and social policy
One of these views will prevail or both will be sacrificed
Corrective Justice, distributive justice and policy
Two goals
Wrongdoer must pay compensation for his wrong,
It is a also a good policy to deter the wrongdoing
When policy goals are at odds with justice to individuals courts have sometimes focused on justice something policy
Fault and other normative bases for liability
Fault and justice
Want to compensate people who were injured, but sometimes we cannot put the blame on anyone and sometimes we
can
Cannot justify forcing one innocent person to compensate another

Strict Liability and corrective justice

Tort law imposes liability without fault; does it go beyond the principle of corrective justice?
Some strict liability
Compensation, Risk Distribution, Risk
Compensation
Compensation of persons injured by wrongdoing is one of the generally accepted aims of tort law
Risk distribution or loss spreading
Good risk distributors who should be liable for any harms they cause regardless of fault because they can distribute
the costs of paying compensation
If a cost is associated with torts a company or persons can make up those costs by charging higher prices for their
product, making up the difference they would pay out in a tort or works compensation
Limited acceptable of risk distribution arguments
Common law of tort has not generally adopted views that compensation is important than corrective justice or that
liability should be strict. This is due to the fact that it does not put fault as the common basis for a tort
Fostering Freedom, Deterring unsafe conduct; economic analysis
Deterrence
Another aim of tort law is to deter certain kinds of conduct by imposing liability when that conduct causes harm
An idea that not necessary that the person who committed the tort to not do it again but rather the idea that all
persons would tend to avoid conduct that could lead to a tort liability
They might engage into a conduct but only if they would benefit more of out it than the tort liability would cost
Deterrence: justice or social policy
Both would agree that deterrence is acceptable but they might call of different conduct:
If you focus on justice for wrongful you can regard any act as wrongful even if there are economic benefits
However if you think of social policy, if a wrongdoing occurred that was economically useful in a society, you
might let it slip or forgive them because it was beneficial to society as a whole
Economic Analysis
All social policies are in a sense economic policies
The Role of Fault
Make it such we need to show some kind of fault liability, make the person who did it, pay for it.
One of the purpose of tort law is deterrence
If we impose liability on someone who didnt do anything wrong it wont change anything
If individual is acting perfectly and innocent what is the point of tort? How can he change? What would be the
purpose, there would be no purpose?
Liability without fault has no impact or merit to society, not important to deterrence
Morality is also important in tort law because:
If you are not doing anything wrong, why impose it on them
It is not moral to punish someone who was innocent
We want people to do what they want to do, if there is torts without fault will deter people from doing what they
want
Liability without fault, people wouldnt do anything (social policy)
We want people to act carefully but we dont want people to not do anything with fear of being liability without
doing anything wrong (freedom)
It can go both ways though, women might not do what she was doing when the accident/incident occurred
Van Camp v. McAfoos
Facts:
P alleges that the D was riding his tricycle on the public sidewalk and without warning drove it into the back of the P
injuring her Achilles tendon.
P States that the D behavior was the proximate cause of her injury in which she required surgery.
P claims that she is entitled to compensation regardless of the presence of fault or wrongdoing.
Rule of Law:
An individual is liable for the harm they cause another only if the individuals conduct is wrongful (causing harm
without fault is not sufficient)
Not going to impose liability without fault
Trial Procedures
Complaint is filed
Something happened, some gets mad/injured so they file a complaint with the court

Delivered to the D
Motion to dismiss the complaint (* a stop can occur)
D says there is no cause of action
Court looks at the compliant (assumes all the facts of the case are true)
Will then grant the motion to dismiss/ or reject the motion
Answer
D will file an answer
Discovery
Each side gets a chance to learn what the other side knows/evidence
Gather information
Motion for summary judgement (* a stop can occur)
One side argues that there still isnt enough evidence or cause of action
Judge will either accept or reject the motion
Court says based on the facts there is no dispute
PreTrial Briefs
Selection of jury
File briefs
Opening Statements
Trial
P case
P presents case first
Objections to evidence and offers of evidence
Motion for directed verdict (* a stop can occur)
D files
No way a jury will find for the P based on the evidence
D case
Objections to evidence and offers of evidence (* a stop can occur)
Motion for directed verdict
Closing Arguments
Proposed Jury Instructions (* a stop can occur)
Created by both parties
If one party doesnt like the instructions, party can appeal (* a stop can occur)
Jury Verdict
Motion JNOV
Party doesn't like the decision, so they want to change the verdict
Motion for new trial
Appeals
Fault Based Liability
Intentional Torts
Battery
Elements of Battery
Intentional contact (touching)
Extended touching
If you throw a ball at someone and it hits the person in the face, that would be a BATTERY however if you miss the
person it would not be a battery
You dont necessarily have to touch the person (victim), you have indirect contract (extended touching)
Intent required
To harm OR offend test is if a reasonable person can conclude that
Result is harmful OR offensive
Defining Intent
Substantial Certainty
Knowing with substantial certainly (90%) that the action will cause harm, can constitute intent to harm
Only occurs when intent to harm/offense is not present
Example: Pointing a gun at someone and shooting them is intent to harm not substantial certainly
Doing something with substantial certainty a battery so it can deter from it doing it again/ morality
Transferred Intent

If you intend to hit person A and hit person B still liable because there was an intent to hit (regardless of who you
actually hit)
Extended Liability and Transferred intent very similar
Cases:
Elements:
Snyder v. Turk
Facts:
D was performing an operation to remove a patients gallbladder, when he started getting frustrated with the P
performance.
When P handed D an incorrect surgical tool, D grabbed Ps shoulder, pulled her face down towards the surgical
opening stating Cant you see where Im working? Im working in a hole. I need long instruments
P filed suit against the D for battery
Rule of Law:
To be liable for battery, a person must both intent to cause and actually cause a harmful or offensive contact (defined
as a contact offending a reasonable sense of personal dignity)
Measure intent to harm or offend by a reasonable person would a reasonable person find
the action offensive
Cohen v. Smith
Facts:
P was admitted to hospital to deliver her baby; she was informed that she would require a Cesarean section to deliver
the baby
P informed the doctor, who then informed the staff, that it was against the Ps religious for her to seen unclothed by a
male
Doctor assured them their beliefs would be respected, however during the procedure, D a male nurse observed and
touched the Ps naked body
P filed suit against the hospital and the man nurse D
Rule of Law:
Offensive touching can occur if an individual knows of a persons religious beliefs and then violates that belief, even
if a reasonable person would not be offended by the touching
If someone lets the other person know what would be offensive to them, and they do it anyways then we dont use
the reasonable person test, we look at the person who was offended
Close look at Intent
Garratt v. Dailey
Facts:
D, a five year boy, pulled out a chair from under P just as she was about to sit causing her to fall and break her hip.
P brought suit for personal injuries and alleged D acted intentionally
According to the D he wanted to sit not to embarrass her or her hurt her (trial court agreed)
Rule of Law:
The element of intent can be satisfied if the D knows with a substantial certainly that his act will result in a harmful
or offensive contact
Knowing with substantial certainty that an action will cause harm can constitute intent to harm
White v. Muniz
Facts:
D moved her elderly grandmother, Everly into a home, while at the nursing home Everly got diagnosed with
progressive dementia, loss of memory, impulse control and judgment a degenerative dementia of the Alzheimer type
P was changing Everlys diaper with little cooperation from her, and Everly struck P (on the jaw) and ordered her out
of the room
P then brought suit against the D for battery
Rule of Law:
In a dual intent jurisdiction, a tortfeasor must both intentionally contact another person and intend that the contact be
harmful or offensive be liable for battery
Dual intent an intent to contact and an intent that the contact be harmful or offensive
Wagner v. State
Facts:
P was standing in line at the customer service line at a department store when suddenly Giese a mentally disabled
patient of the Utah State Development Center attacked her from behind.

He took P by the head and hair and threw her to the ground.
Utah State Developmental Center employees accompanied Giese to the state because he had a history of violent
behavior and presented a potential danger to the public.
State is arguing single intent (since they are not liable for battery)
Rule of Law:
Under single intent the actor doesnt need not intent that his contact be harmful or
offensive in order to commit a battery so long as he deliberately made the contact and so
long as that contact satisfies our legal test for what is harmful or offensive
Baska v. Scherzer
Facts:
A fight broke out between the Ds and the two boys began to push and punch one another.
P yelled at the D to stop in order to break up the fight and when they continued to fight, P placed herself in the
middle of the fight and was punched in the face losing several teeth and receiving injuries to her and jaw
Rule of Law:
Under the doctrine of transferred intent the Ds act of punching was intentional towards one another, P has a claim
for assault and battery because the act was intentional (battery)
Assault
Elements:
Intent: to cause (reasonable) APPREHENSION of an IMMINENT (without delay) battery
What is imminent ?
Probably more than 24 hours would not be imminent
No significant delay
If it is not imminent than you can do something to get yourself out of the situation
If someone intentionally tries to hit you but misses can still sue for assault through transferred intent
Result: It does (cause the latter)
Test: measured by a reasonable person standard (if a reasonable person would believe assault was likely)
Cases:
Cullison v. Medley
Facts:
P met Sandy Medley (teenager) in parking store lot and invited her to his house.
Later Sandy and D came to P mobile home and confront him about meeting with her.
D (father, Ernest) had revolver strapped to his thigh, and repeatedly reached for it and shook the gun at P throughout
the encounter.
D threatened to jump on P, while D (mother), kept her hand in her pocket, convincing P that she also had a weapon.
P feared that one of the Ds was about to shoot him and felt intimidated by the five people inside his trailer.
After the confrontation, P learned that D (father) had previously shot someone.
P then felt great fear when D (father), armed with a pistol, glared threateningly at him in a restaurant.
P brought suit against the D for assault
Rule of Law:
Assault requires that a person acts while intending a harmful or offensive contact with another or acts while
intending to procedure a reasonable apprehension of an imminent battery, causing mental or emotional damages
P not alleging physical harm is immaterial, P can still recover for his mental and emotional harm
False Imprisonment
Elements:
Intent: to confine, within limited area, without authority, unconsented, awareness of restrain OR actually occurs
Fact specific have to look at circumstances before you can determine if it has occurred
Results: confinement actually occurs
Cant be confined if there is a way to get out, unless the only way to get out is UNREASONABLE, then you are
actually confined
way to escape has to be REASONABLE and SAFE
Cases:
McCann v, Wal-Mart Stores, Inc.
Facts:
P and her two sons were shopping at Wal-Mart, after they finished paying for their items, two employees blocked
them from leaving the store.
Employees asserted that Ps sons had previously been caught stealing and were not allowed in the store.

The employees were mistaken and were confusing the McCanns with another family.
The Wal-Mart employees took the McCanns to an area near the exit, and one employee left, claiming to be calling
the police.
P offered to show her identification, but the remaining employee refused to look at it.
When one of Ps sons asked to go the bathroom, the employee told the boy that he could not leave.
After an hour, the Wal-Mart employees realized their mistake and let the McCanns leave the store.
McCann brought a claim of false imprisonment against Wal-Mart, and the jury ruled in favor of McCann.
Rule of Law:
The elements of false imprisonment are:
1) words or acts intended to confine a person
2) actual confinement
3) awareness the confinement
False imprisonment does not require actual physical restraint
Torts to Property
Trespass to Land
Elements:
Intent to enter onto land AND [need to] actually do it
or an intent to not leave the land
Can also be an object that you hit/got to go on someone elses property
Landowner has to bring the case
Difference between Trespass/Assault/Battery
Did you intend to step on his land? (trespass)
Did you intend to touch me? Did you intend to do harm or offend? (Assault/Battery)
Trespass is a single intent but assault/battery is dual intent
Conversion of Chattels
Exercising the substantial dominion over property and interference with the owners ability to control
Conversion you would actually have to buy it
pg. 56-57 lists factors on substantial dominion
Elements:
Intent to exercise the substantial dominion over property
And actually do it
Damages:
Are typically the value of the chattel at the time of the conversion
Forced to buy what you converted
Voidable Title:
The title can be transferred back
Trespass to Chattels
Elements:
Intentionally, without consent physically interfered with the use and enjoyment of personal property
Acts with substantial certainly
And P was harmed thereby
Harm to physical, harm to value (deprivation), dispossession of use (interference with the P access or use)
Have to show damage/intent
Difference between Trespass to Chattels and Conversion is:
Liability is based on ACTUAL HARM
Difference is based on remedy:
Full value conversion
Defenses to Intentional Torts
Self Defense
Elements:
Actual or reasonable apparent threat to the D safety
Force used was reasonable
Not excessive
In order for P to win:
Must prove elements
D did not prove a valid defense

Burden of Proof lies with the D

Cases:
Touchet v. Hampton
Facts:
D terminated the P from the dealership in the summer of 2012.
A couple months after P got fired, he called the D on three different occasions and left voicemails cursing and
threatening the D.
The D then went to P new place of work to tell him to stop calling and quit harassing him.
When the D entered the P office, the P back was towards the window and he turned around and started yelling when
he saw the D.
The D out of self-defense repeatedly hit the P, and had to be pulled off by other employees.
Rule of Law:
D may assert self-defense as a defense to a claim of battery where the evidence shows that there was:
1) An actual or reasonably apparent threat to the Ds safety
2) That the force used by the D on the P was not excessive
Defense of Property
Katko v. Briney
Facts:
D own a farmhouse, which is unoccupied and in response to many years of break-ins and trespassers, the D set up a
spring gun trap in one of the houses bedroom.
The trap consisted of a shotgun pointed at the bedroom door and rigged to fire when the door was opened and it
could not be seen/ no warning of its presence.
P and a friend went to the house and collected old bottles and jars, on a following visit, P opened the bedroom door
setting the shotgun trap.
P was struck in the right leg and seriously injured.
Rule of Law:
A person, in protecting his property, may not use force calculated to cause death or serious bodily injury, except
where there is also a threat to personal safety that justifies self-defense.
No excessive force to protect property that can cause bodily harm or death
Brown v. Martinez
Facts:
P and two other boys visited the D garden patch and stole watermelons.
When the P returned the next night, the D came out of his house with a rifle and called out to the boys to get out.
D fired the gun toward the southeast to scare them (thought they were running southwest).
However P was struck in the back of the left leg.
Rule of Law:
There is no privilege to use any force calculated to cause death or serious bodily injury when only property is
threatened and not the safety of the D.
Arrest and Detention
Gortarez v. Smittys Super Valu, Inc.
Facts:
P were shopping in Smittys Super Valu, Inc. store when they were leaving the store a store clerk had a hunch that
P had taken without paying for 59 cent vaporizer.
Store clerk took the assistant manager and the security guard Gibson.
Outside of the store, Gibson began searching P without saying what he was looking for.
During the search, Hernandez did not resist and repeatedly denied that he or P had taken anything.
At the same time, P yelled at Gibson to leave Hernandez alone.
A struggle ensued and Gibson placed P in a chokehold.
Gibson kept P in the chokehold even after P insisted that he had left the vaporizer inside of the store.
P suffered physical injuries as a result.
After a store clerk confirmed that the vaporizer was where P said, Gibson released the P
P required medical treatment for his injuries.
Rule of Law
A merchant may, 1) with reasonable cause, detain a person suspected of shoplifting in a 2) reasonable manner and
for a 3) reasonable time and 4) for the purpose of questioning the suspect or summoning a law enforcement officer.
Shopkeepers Privilege

If shopkeeper has a REASONABLE belief that property was taken

Consent
Rule:
Consent is not a defense to an intentional tort
Burden of proof is on P/has to prove
If there is consent than not liable for that follows (however it is limited)
Test:
Reasonable appearance of consent what was reasonable under the circumstances, what a
reasonable person would believe
In many states consent is not an affirmative defense but is part of Ps prima facie case
Consent is an element that has to be proved by P
Consent may be explicit or implicit;
Implied in fact: playing baseball, do you need consent to tag person out?
Implied by law: If passed out on the street and doc comes to revive you that is consent is: Facts dont matter it is just
the law.
Consent obtained by duress or fraud is not effective
Consent to an illegal act is ineffective in some states
Consent procured by fraud is no consent at all
Relationship of parties:
can be important to determining apparent (implied) consent, also consider power relationships
Cases:
Robins v. Haries:
Corrections officer and inmate, sexual acts, inmates alleged consent to the sexual contact is no defense (power
relationship).
Incapacity of adult to consent is usually established only by showing that the adult could not manage his own affairs,
or that he did not understand the nature and character of the act.
Sometimes when one party has a position of power over of the other LIABLE (it depends on the situation)
Kaplan v. Mamelak:
Patient sued doctor for medical malpractice and battery because the doctor operated on the wrong herniated disks in
his back.
Trial court granted the doctors demurred, jury found for doctor on malpractice.
Rule of Law: battery can occur if the physician performs a substantially different treatment from that covered by the
Ps expressed consent
Consent may be bypassed in emergency situations where obtaining consent is impossible
Doe v. Johnson:
One who knows he has a venereal disease and knows that his sexual partner does not know of his infection,
commits a battery by having sexual intercourse
Would have known with substantial certainly because of his promiscuous lifestyle
Intent to offend

Public and Private Necessity

Rules:
One is privileged to make use of anothers property to prevent harm the person or to a disproportionately greater
amount of property damage
This privilege is conditional and the actor may be liable for any damage to the property used
Most authority holds that if it is a governmental agency asserting the defense, it is a complete defense
Source is common law
Cases:
Surroco v. Geary
Facts:
a large fire consumed P house and was in danger of progressing to other nearby buildings if it was not immediately
extinguished.
The mayor, Geary (defendant), ordered P home to be destroyed in order to stop the progress of the fire and save the
other surrounding buildings.
At the time that P home was destroyed the fire had already passed over his home and was progressing to nearby
properties.

Prior to P home being destroyed, P was in the process of removing his personal property from inside his home.
Had P not been prevented, P could have successfully removed almost all of his personal property from his home.
P sued D to recover damages.
The jury returned a verdict in P favor.
Rule of law:
Public Necessity does not have to be a public official could be a private person as long as
doing it for the public
Elements of Public Necessity
Necessity reasonable belief that the action was needed (actual OR apparent)
What for protect the community/ less value than what was at stake (danger)
Was the action that was taken was reasonable/ were there alternatives that were less destructive
Ploof v. Putman
Family sailing on rough water, / the boat at defendants dock, D unmoored the boat, boat was destroyed and people
were injured, found for plaintiff. An entry upon land to save goods which are in danger of being lost or destroyed
by water or fire is not a trespass. One may sacrifice personal property of another to save his life or the lives of his
fellows.
Vincent v. Lake Erie Transportation Co.
Where one reasonably believes his interests outweigh the loss or harm another may incur, his conduct is privileged.
That person will be held liable, however, to the extent he or she causes damage to anothers property or land.

Negligence
Background and Policy
Elements (Lewis Order)
Duty (1)
Breach of Duty (2)
Damage (5)
Actual Cause (3)
Proximate Cause (4)
Duty
General Duty Prudent Person Standard
What would a reasonable person do under these circumstances
Reasonable prudent person standard, the reasonable person as the circumstances change, the responses would
change
More dangerous more careful
The judge determines the standard
The jury determines whether the standard was met
Sudden Emergency Instruction:
In an emergency you cant really be reasonable since you are stressed at that time
Duty and Physical Disabilities
The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably
careful person with the same disability
Lessen the group of reasonable person, made it more subjective
Questions to ask with regards to negligence (duty):
Would a reasonable person foresee that they were creating harm to a person?
Would they have done something about it?
Cases:
Stewart v. Motts
Facts:
While defendant was working with gasoline in a garage on the plaintiffs car, the car backfired and caused an
explosion that injured the plaintiff. Plaintiff sought a jury instruction that due to the risks involved, a higher
standard of care is required when working with gas but was denied. On appeal, the denial was affirmed.
Rule of Law:
The care required is always reasonable care. The standard never varies, but the care which is reasonable to require
of the actor varies with the danger involved in his act and is proportionate to it.
Posas v. Horton (Sudden Emergency)
Facts:

P was driving her vehicle when a woman pushing a baby stroller began to cross the street in the middle of traffic.
P stopped suddenly to avoid hitting the woman D, who was following P very closely in her own vehicle, ran into the
back of P car.
P filed a negligence lawsuit against D for injuries she sustained from the accident.
At trial, D testified that she did not see the woman crossing the road and had made a mistake by following P
vehicle too closely.
At the close of the evidence, the trial judge provided the jury with a sudden-emergency instruction, over D
objections.
The instruction stated [a] person confronted with a sudden emergency which he does not create, who acts according
to his best judgment or, because of insufficient time to form a judgment fails to act in the most judicious manner, is
not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.
The jury returned a verdict for D. P appealed
Rule of Law:
A D whose vehicle strikes the back of P vehicle is not guilty of negligence if she was confronted with a sudden
emergency which she did not create and accordingly acted like a reasonably prudent person would have under like
circumstances
Shepherd v. Gardner Wholesale, Inc. ( Mental disabilities duty)
Facts:
A woman with impaired vision trips over raised concrete slab outside defendants store. Defendant seeks dismissal
for contributory negligence on grounds that plaintiff should have used a higher standard of care because of her
vision problems. Defendants motion is dismissed and case is allowed to proceed.
Rule of Law:
Reasonable care in the case of a disabled person is the same as an ordinary person with the same disability under
similar circumstance.
A person with a physical disability is not required to exercise a higher degree of care to avoid injury than is required
of a person under no disability.
Creasy v. Rusk
Facts:
An institutionalized Alzheimers patient flails while having his diaper changed and kicks a nurse, causing injury.
Defendant was granted summary judgment but it was reversed on grounds that standard of care was the same for the
insane.
The reversal was held but the defendant won because the patient had no duty of care to his caretakers once he was
institutionalized.
Rule of Law:
A person with mental disabilities is held to the same standard of care as that of a reasonable person under the same
circumstances without regard to his capacity to control or understand the consequences of his actions.
However, caretakers of the institutionalized are not owed care by their patients.
Robinson v. Lindsay
Facts:
P, a child, loses use of her thumb as a result of the conduct of defendant, also a child, while he operated a snow
mobile.
The D had substantial experience on a snowmobile.
The appellate court ordered a new trial because the jury was told to hold the defendant to a child standard of care.
Rule of Law:
Though a child standard exists, when the activity the child engages in is inherently dangerous or is normally one for
adults only, the adult standard is applied, especially in cases of operating powerful vehicles.
Powerful mechanized vehicles (boats, snow mobiles, tractors, motorcycles, minibikes) tend to be Adult.
Particular Standards and Duties
Cases:
Marshall v. Southern Railway Co.
Facts:
P is blinded by oncoming lights and runs into defendants railroad support in road.
P suit is dismissed because he was unable to stop his car within the range of his lights and was therefore negligent
as a matter of law.
Rule of Law:

10

Ordinary care while driving at night, supported by statute, is such that a person can stop within the range of his or
her lights.
Thus P was contributorily negligent as a matter of law
Judge made standard duty/ decided what a reasonable person would the standard they
are creating court decided the duty (judgment without looking at facts)
Chaffin v. Brame
Facts:
P struck an unlighted, stopped truck in the road while driving at night after he was blinded by oncoming brights.
He slowed his car but did not stop. D, the truck owner, argued P was contributorily negligent and referred to
Marshall (supra).
D argument is dismissed on grounds that circumstance must dictate what is reasonable conduct in a given situation.
Since P could not reasonably foresee the truck would be in road, slowing his car was sufficiently reasonable to
disqualify the contributory negligence claim.
Rule of Law:
Reasonable care is determined by specific circumstances.
Marshall imposed too much liability on a driver.
What would a reasonable person do in similar circumstances? Slow down.
Negligence Per Se:
Elements:
The statute or regulation must clearly define the required standard of conduct
The statute must have been intended to prevent the type of harm the defendants act or omission caused
The plaintiff must be a member of the class of persons the statute or regulation was designed to protect
The violation must have been the proximate cause of injury
Cases:
Martin v. Herzog
Facts:
While driving at night, D crossed the center line and struck an unlighted buggy.
Statute requires lights at night.
Court found the buggy drivers lack of lights was contributory negligence per se.
Rule of Law:
An unexcused omission of statute is negligence in itself and the jury has no dispensing power to overlook the duty
of one to another as required by statute.
OGuin v. Bingham County
Facts:
Children were killed in a landfill which wasnt fenced in while playing
Rule of Law:
Violation is reasonable of the actors incapacity
He neither knows nor should know of the occasion for compliance
He is unable after reasonable diligence or care to comply
He is confronted by an emergency not due to his own misconduct
Compliance would involve a greater risk of harm to the actor or to others
Negligence is acting unreasonable
Dont want to have too many expectations to failure to comply because dont want
individuals to always say they have a defense in some cases the defense should be
available
Take a criminal statute and substitute a duty look at the statute for duty not at the reasonable person standard
Impson v. Structural Metals, Inc.
Facts:
Petitioner trucker collided with and injured respondent accident victim when he was illegally passing on the left
within 100 feet of an intersection, in violation of a criminal statute.
Because the trial court found negligence per se against petitioner, it did not submit any negligence issues to the jury.
Petitioner sought review and the lower court affirmed the finding of negligence per se, but reversed and remanded
for a new trial because the jury did not make a special finding on the negligence issues of justification or excuse.
Rule of Law:
Unless a legitimate excuse for non compliance is offered, violation of a statue causing injury is negligence per se
Breach of Duty

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Assessing Reasonable Care

Whether the defendant breached that duty by failing to exercise the requisite quantum of
care breach = negligence
When talking about negligence:
If there is a duty and you breach it negligence
If there is a duty, you breach it, actual cause, proximate cause, and damages Liable
(valid cause of action)
Key idea of negligence:
Creating an UNREASONABLE RISK
Negligence is conduct is something you unreasonably do or you fail to do
Negligence and intentional torts are contrasting ideas (opposites)
Negligence no intent no substantial certainly but created an unreasonable risk
Does the conduct create an unreasonable risk?
would a reasonable person have foreseen that the risk would occur, and how would they handle the situation?
One who is confronted with a sudden emergency not of his own making it not chargeable with negligence if he acts
according to his best judgment sudden emergency rule
Several jurisdictions have ruled that one may be deemed negligent in voluntary risking life or serious injury for the
purpose of saving mere property
Questions for Analyzing Negligence (want to satisfy all 4 questions):
1st question What is the duty? Was it foreseeable?
2nd question How likely is it to happen?
3rd question Extent of the harm/ potential harm
4th question What is the cost to the D to prevent this from happening?
Foreseeability
Look at it in terms of Probability over possibility
Cases:
Pipher v. Parsell
Facts:
As the parties were traveling at 55 miles per hour in the drivers truck, the second passenger unexpectedly grabbed
the steering wheel causing the truck to veer off onto the shoulder of the road. Approximately 30 seconds later, the
second passenger again yanked the steering wheel, causing the truck to leave the roadway, slide down an
embankment, and struck a tree. The first passenger was injured as a result of the collision.
Rule of Law:
If future harmful actions are foreseeable a driver does have a duty to prevent such harm.
A driver owes a duty of care to her or his passengers because it is foreseeable that they may be injured if, through
inattention or otherwise, the driver involves the car she or he is operating in a collision.
In general, where the actions of a passenger that cause an accident are not foreseeable, there is no negligence
attributable to the driver. But, when actions of a passenger that interfere with the drivers safe operation of the motor
vehicle are foreseeable, the failure to prevent such conduct may be a breach of the drivers duty to either other
passengers or to the public.
Indiana Consolidated Insurance Co. v. Matthew
Facts:
When the insureds brother was attempting to start a riding lawnmower in the insureds garage, the lawnmower
caught fire. The insureds brother tried extinguish the flame, but was unsuccessful, so he ran to his home to call the
fire department. When he returned the garage was totally engulfed in flames.
P subrogation
Rule of Law:
One who is confronted with a sudden emergency not of his own making is not chargeable with negligence if he acts
according to his best judgment.
The law values human life above property. Greater risk of ones person is justified to save life than is reasonable in
protecting property. One may be deemed negligent in voluntarily risking life or serious injury for the purpose of
saving mere property
The sudden emergency doctrine requires the person so confronted to do that which an ordinary prudent man would
do under like circumstances. Mathews course of action can be deemed an exercise of ordinary prudence
Stinnett v. Buchele
Facts:

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The farm employee was injured when he fell off a barn roof. The farm employee brought an action against the farm
employer that asserted negligence in the failure to comply with safety regulations that required the installation of
safety nets for work in elevated areas and failure to provide a safe place to work.
Rule of Law:
For the issue of a partys negligence to go to a jury, evidence of that partys negligence must exist.
The liability of the employer rests upon the assumption that the employer has a better and more comprehensive
knowledge than the employees, and ceases to be applicable where the employees means of knowledge of the
dangers to be incurred is equal to that of the employer.
The employer also wasnt on the premises to oversee the work nor did he know that the worker was there that day
Bernier v. Boston Edison Co.
Facts:
Ramsdell drove out of a parking space on a street near a busy shopping mall. She collided with another vehicle and
lost control of the car. Ramsdells foot slipped from the brake to the gas pedal, and her car careened off the road,
down a sidewalk, and knocked over an electric pole owned by Edison (defendant).
The electric pole broke and landed on Bernier (plaintiff), causing serious injuries. Bernier brought a negligence
claim against Edison (also Ramsdell, Bireaus), claiming that Edison had negligently designed the pole.
Rule of Law:
To avoid negligence, a manufacturer must consider the reasonably foreseeable risks of injury created by a products
use in its normal environment and design the product to prevent an unreasonable risk of such injuries.
1st question What is the duty? Was it foreseeable?
Strongly probable, by looking at the history on how many poles have to be replaced
2nd question How likely is it to happen?
Yes, there is a team that goes replacing poles about 120 poles a year
3rd question Extent of the harm/ potential harm
Very harmful since one pole weighs 1,200 pounds
If that falls, it is almost certain injury would be significant
4th question What is the cost to the D to prevent this from
Could they have made the pole stronger with reasonable costs
Cost would have been $25 dollars, alternative would be there and it would have been reasonable to do it
Court also asks
If they took the risk, would it create extra harm?
D argued that the firmed they make the poles, the more likely the car and driver/passengers would be injured
This is another risk, and it may be even worst
More drivers at risk than pedestrians
Court says, that there is some protection to the drivers, since they have a barrier (extent of harm) as where the
pedestrians dont
Risk Utility Analysis
Test for negligence:
P Probability
L degree of harm
B Burden of preventing
B< P x L *negligent
B > P x L *not negligent
Assessing Responsibility When More than One Person is Negligent:
Comparative Fault:
each faulty party must bear his or her share of the losses
D liability is correspondingly reduced so he pays less than all of the plaintiffs damages
Apportionment among Defendants:
since both parties are negligent, it looks as if both Ds should contribute in payments to P
Joint and Several Liability
P can enforce her tort claim against each tortfeasor
can obtain judgment against both, but cannot collect more than her full damages
each may be sued for the whole amount, after D pays for the amount they might be able to get reimbursed by other
D based on fault apportionment
Contribution
payment is proportional to its fault

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Insolvent or Immune Tortfeasors

if one of D cannot contribute to the negligent payment, then the other D is responsible for the full payment
Several Liability and Comparative Fault Apportionment Among Tortfeasors
no tortfeasor is liable for more than his proportionate share in the negligence claim
Cases:
United States v. Carroll Towing Co.
Facts:
D was in charge of handling the mooring lines for a barge operated by the P.
D did so negligently and the barge broke free from the pier and ran into another ship. The ship's propeller made a
hole in the barge, and it sank.
P sued D for negligence. D claimed that P was required to have a bargee on board at the time and that if there had
been one on board, the damages could have been minimized.
Rule of Law:
A person may be liable for failing to take reasonable precaution against great risk of injury even when the
probability of the injury occurring is very small
Duty depends on:
How likely is it that the barge will break away from its moorings?
How big an injury did it cause?
How expensive would precautions be?
Contributory negligence case
Accident wasnt caused just by the negligence of the D but also by the negligence of the P
Proving Conduct
Plaintiff must prove each element of the case by a preponderance of the evidence, that is, by the greater weight of
the evidence
Cases:
Santiago v. First Student, Inc.
Facts:
P alleged that she was a passenger on First Students D school bus when the bus collided with an unidentified
vehicle on an unspecified day.
P was in the eighth grade and was returning home from school when the alleged accident took place.
P was unable to specify the date or location of the accident and was unable to offer details regarding the accident or
the names of other students on the bus.
Rule of Law:
If you dont know what happened, you dont know how the person reacted in the situation
Or know what he could have done in that situation
Without evidence of what happened, cannot prove that conduct was not unreasonable and created an unreasonable
risk/ reasonable
A partys negligence must affirmatively be established by competent evidence and may not be based on conjecture
or speculation.
P has the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact.
Forsyth v. Joseph
P in his car and hit by Ds truck. D admitted to be going 55mph when collision occurred. Had to have been speeding
before since tried to stop.
Inference that D was speeding - NEGLIGENT
Evaluating Conduct/Custom
Customs/ industry standards can use as evidence (5)
Custom > Code Use it
Code > Custom Cannot use it (note 2, pg. 158)
Custom not enough when the industry is lazy
Cases:
Thoma v. Cracker Barrel Old Country Store, Inc.
Facts:
Pwas dining in a restaurant owned by Cracker Barrel (D).
When P got up 30mins later, she slipped on a large patch of liquid on the floor.
While eating, P did not notice anyone spill any liquid on the floor.

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The area that the spilled liquid sat upon was in plain view of Cracker Barrel employees, and Cracker Barrel
waitresses routinely carried water near the area.
Rule of Law:
To prove negligence in a premises liability case, the plaintiff must show that the defendant either caused a dangerous
condition or had actual or constructive notice of the dangerous condition.
Wal-Mart Store, Inc. v. Wright
Facts:
P was walking in wal-mart when she slipped on a puddle of water in the lawn department.
She alleged they were negligent in the maintenance, care and inspection of the premises.
Wal-Mart said she was also negligent
Rule of Law:
Not what would a reasonable person do but instead asks what would Wal-Mart employees do in those circumstances
Violated the manual
Look at what the other stores are doing, other ways of setting a standard of care
Not bound by higher standard, still use reasonable care NOT NEGLIGENT
Duncan v. Corbetta
Facts:
P injured when walking down wooden stairs at Ps house and step collapsed. D did not build stair
and it was a commonly used type
Rule of Law:
Industry Standard (custom) > Codes
The industry standard is looked at instead of the codes
This is the whole industry standard, everyone is doing it
Violation of custom is not negligence ser pe, it can be a standard of care might be
Only when custom is a higher standard can it be admissible in court, if it is lower it can be admissible
The T.J. Hooper
Facts:
The P were shipping two barges full of cargo when the ships encountered a storm.
The barges sank and the cargo was lost.
The D owned the two tugboats that accompanied the barges.
Rule of Law:
The court held that unless the tugs were under a duty to be equipped with radios, a suit for negligence must fail.
However, the standard of seaworthiness is not dependent on statutory enactment or unchanging standards.
Miller v. Warren
Facts:
The Ps were staying in Ws motel when there was a fire. They were injured. They sued for negligence.
The P argued that were no smoke alarms which could have alerted them to the fire.
D argued that the local fire code did not require smoke alarms. Therefore, since he complied with the law, he
couldn't be held negligent.
Rule of Law:
The standard for negligence is different from the standard for legal culpability, and just because you are complying
with the law, that not proof that you aren't acting negligently.
Conversely, just because you have broken a law, that doesn't automatically mean that you are negligent.
Res Ipsa
Elements:
The accident must be of a type that normally would not occur in the absence of negligence.
There was no contribution to the plaintiffs injuries by the plaintiff or any third party.
The source of the negligence falls within the scope of the duty owed by the defendant to the plaintiff.
This is the kind of thing that would not occur without negligence
It was the D who caused the negligence/ show P was not negligent
Reason we have Res Ipsa:
Situation where P has no way of knowing what happened
If there is negligence Whos negligence, is it the Ds negligence that most likely caused
the accident
Can use Res Ipsa even without exclusive control

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Comparative negligence
Not giving P full recovery if she negligent
Cases:
Bryne v. Boadle
Facts:
P was struck by a barrel falling from a window as he walked past D flour shop and sustained serious personal
injuries.
A witness testified that he saw the barrel fall from Ds window but had not seen the cause.
P did not present any other evidence of negligence by D or his employees.
Rule of Law:
Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of
negligence
A presumption of negligence can arise from an accident.
A party need not present direct evidence of negligence when the mere manner and facts of the accident show that it
could not have happened without negligence on someones part.
Koch v. Norris Public District
Power line fell and broke onto Ps property causing fire
res ipsa loquitur is applied in the absence of a substantial, significant, or probable explanation.
Cosgrove v. Commonwealth Edison Co.
Power line sparking in alley behind Ps house. Line fell and started fire injuring P. Leak in buried gas line ignited the
sparks.
POWER COMPANY NOT NEGLIGENT
Gas company is negligent. Leak is result of negligence. Down line can come from other things (wind, storm, etc.)
Warren v. Jeffries
Facts:
Terry Lee Enoch (Enoch), a 6-year old child, was injured when a wheel of D automobile ran over his body. The
child died from his injuries.
P brought an action to recover for the childs alleged wrongful death
Rule of Law:
For the doctrine of res ipsa loquitur to apply, an accident must have been more likely than not caused by the
defendants negligence
Giles v. City of New Haven
Facts:
The elevator operator was injured when an elevator he was operating fell. The facts indicated that the elevator
installer installed the elevator 61 years prior to the accident.
Rule of Law:
While the res ipsa loquitor doctrine may only be invoked where a D is in control of the instrumentality causing the
injury
The control requirement is satisfied even in circumstances where a D is not in exclusive control of an
instrumentality, so long as a nondelegable duty rests on the defendant to ensure the safety of the instrumentality.
Collins v. Superior Air- Ground Ambulance Service, Inc.
Facts:
Bedridden mother lives with daughter. Daughter has to go away for a few days, so ambulance
takes mother to and from health care center while shes gone. When back discovers mother is
dehydrated and has broken leg. Sues health care center and ambulance. Ambulance company
contends they cant prove who is responsible.
Rule of Law:
Court concludes that where there are only 2 Ds who had consecutive control over P, and either one could have
caused Ps injuries, and both are named in the complaint, the complaint is sufficient for pleading purposes to raise
the inference of negligence under the doctrine of res ipsa loquitur.
Actual Damages
Duty + Breach of duty has already been established
Negligence has already been proved
The P who proves that the Ds conduct was negligent, but fails to show that actual damage resulted from it, will lose
the case.
Case:

16

Right v. Breen
Facts:
P was stopped at a red light in his automobile, when a car driven by D collided with P from behind.
P then brought a negligence claim against D.
The jury determined that P incurred zero damages as a result of the accident, and found D not liable.
P then moved to set aside the verdict and for additur, claiming that D owed P nominal damages because of the legal
injury caused by D.
Rule of Law:
Have to have actual harm/damages in order to bring negligence claim
No negligence claim without actual harm/damages
Did not allege injuries to the car, only brought personal injuries damages
Cause in Fact
Actual Harm
If the action was done intentionally will award damages even without actual harm because it would serve as a
deterrence
Want to deter intentional torts
In a negligence case actual harm is required
Deterrence aspect isnt as strong
Dont want to the courts to listen to nonsense cases
What kind of Damages can we get in personal injury?
Medical expenses
Loss wages/ earning capacity
Pain and suffering (including emotional harm)
Biggest damage
Harm to measure
Alot of the money is awarded
Any other specifically-identifiable harm (such as special expenses necessary to travel for medical care)
Punitive damages:
Can not receive punitive damages without some other kind of damage
Rewarded when conduct is willful, wanton, reckless or malicious
Factual Cause:
4 scenarios:
Did the D breach of duty directly cause the injury to the P?
Scientific cause
But for cause
Whos negligence caused the injury to the P?
Whos negligence caused what harm?
But For Test
But for the actions of the D, no injury would have occurred to the P
Cases:
Hale v. Ostrow
Facts:
The P was walking home from a bus stop in Memphis, Tennessee.
As she left the sidewalk, she tripped over a chunk of concrete and fell into the street.
Her left hip was crushed in the fall.
She filed suit against D ( property owners)
Rule of Law:
D is negligence for failing to maintain their bushes
But did NOT cause the injury
Failing to see the risk the bushes could cause
Not taking care of the bushes
City of Memphis is the owner of the sidewalk
Which did cause the injury
Used the but for test
Said there is enough evidence to send this to a jury to decide the case
Not looking for the cause, looking for A cause

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 Cause in act
The Ds conduct is the cause in fact of the plaintiffs injury, if, as a factual matter, it directly contributed to the P
injury
Salinetro v. Nystrom
Facts:
P got an ultrasound done, and D never asked if she was pregnant (she did not know at the time she was)
Later found out she was pregnant and the baby died.
Rule of Law:
D breach of duty
Should have asked about possibly of pregnancy
D argument:
Even if asked it wasnt the cause because she still did not know she was pregnant therefore same result would have
been the same
No actual cause to P
Problems with But For and Alternative to But For
Problems
Requires us to think about a set of behaviors that did not occur
Hard to make liability on hypotheticals
Causal Apportionment Two persons causing separate or divisible injuries
Fault Apportionment Two persons causing a single indivisible injury

Landers v. East Texas Salt Water Disposal

Elements when But For doesnt work use Joint and Several Liability Test:
Indivisible injury it is one injury
Who is liable what?
Who was the cause of this
Each is sufficient in and itself to cause entire injury
Concurrent
Even if I was careful/not negligent the fish would have died anyways
Problem, two D arguing that they were not negligence because of the other D
Indivisible injury turns to Joint & Several Liability
Preemptive causation
Injury has already occurred
Duplicative causation
When injury occurs at the same time
Cases:
Landers v. East Texas Salt Water Disposal Co.
Facts:
Pollution generated by East Texas Salt Water Disposal Co. (D) and Sun Oil Co. (D) damaged a lake belonging to
Landers (P).
Rule of Law:
Elements when But For doesnt work use Joint and Several Liability Test:
Indivisible injury it is one injury
Who is liable what?
Who was the cause of this
Each is sufficient in and itself to cause entire injury
Concurrent
Even if I was careful/not negligent the fish would have died anyways
Problem, two D arguing that they were not negligence because of the other D
Indivisible injury turns to Joint & Several Liability
Lasley v. Combined Transport, Inc.
Facts:
D killed when truck pilled load on freeway and car crashed into P truck, causing fire
Rule of Law:
Actions of both parties are substantial factors.
Evidence of driver's intoxication does not change causation analysis because expert testify accident would not have
resulted in fire if D was not stationary.

18

Substantial Factor Test:

To figure out if there was cause
Proof: What Harm was Caused
Alternative causation
Swifts the burden of proof on D to prove which one of the actors was responsible for the injury
Cases:
Summers v. Tice
Facts:
Summers (P), Tice, and Somonson (Ds) were hunting quail.
Tice flushed a quail which flew between Summers and the D.
D fired their shotguns and Summers was struck in the eye and upper lip.
Rule of Law:
Difference between this and res ipsa is that the burden of proof swifts to the D
In res ipsa the burden of proof does not swift
Know both are the cause of the injury if there was two bullets and two separate injuries
This is not the case here since there is only one injury/one bullet
By both D firing the guns, we lost the opportunity to figure out who caused the harm
Had no fire occurred, this would have not happened
Dillon v. Evanston Hospital
Facts:
Had surgery, as catheter was being taken out, part broke off and stayed in body. Hospital did not tell her. Eventually,
pieces got into her heart
Rule of Law:
May be able to collect damages for increased risk of future harm. Must look at evidence and the damages
proportioned to the probability future harm will materialize.
Proximate Cause
Scope of Risk
Proximate cause last element
When the D was negligent and in fact caused the harm to the plaintiff, the D is not liable if the actual harm was not
within the cope of the risk the D created
What is the scope/basis for proximate cause
Limit liability of the D
Causation has two elements:
Cause in fact
Legal cause
Defining Scope of Risk:
Relation to harm caused (or injury) Abrams v. City of Chicago, Thompson v. Kaczinski
What kind of harm is likely to arise and did it?
Person injured Palsgraf v. Long Island Railroad Co.
Whether or not the person injured is in the range of apprehension
Scope of risks questions:
Nature of the harm Type of harm
Persons at risk that are actually injured
Manner in which the harm results (Hughes v. Lord Advocate D argument)
Extent of the harm
Intervening Causes
Intentional/ criminal
Negligent
Cases:
Thompson v. Kaczinski
Facts:
Kaczinski, who lives in rural Iowa next to a gravel road, disassembled a trampoline and left it in his yard.
Weeks later, a severe thunderstorm blew parts of the trampoline onto the road during the night.
The next morning, Thompson, driving down the road, swerved when he saw the trampoline parts in the road, lost
control, and rolled his car.
He and his wife were injured and sued Kaczinski for negligence.

19

Kaczinski contended he owed no duty of care under the circumstances because the circumstances that led to the
trampoline being blown onto the road were not foreseeable
Rule of Law:
Scope of liability (harm)
Consideration of the risks that made the actors conduct tortious
Determination of whether the harm at issue is a result of any of those risks
Sometimes it is not the risk that the D was thinking of at the time the tortious conduct was committed
Not the risk in mind
What kind of harm do we think he is creating
Foreseeability still plays a role
Exclude liable for harms that are not foreseeable, even if the D conduct was tortious
Almost everything is foreseeable
Difference between breach of duty and scope of risk
Breach of duty the broader question of whether the D conduct was foreseeable risks some
type of harm to someone such that the conduct should have been avoided
Scope of risk concerned with whether the D conduct foreseeably risked the type of harm
that actually happened to the plaintiff in the case at hand
Abrams v. City of Chicago
Facts:
Dispatcher does not send an ambulance to pick up plaintiff who is in labor. Instead, plaintiff gets a ride with a friend
and a drunk and stoned driver hit them. The woman was put into a coma and her child died.
Rule of Law:
That plaintiffs driver would run a red light while intoxicated as a result of not sending an ambulance was not
foreseeable. Millions of women reach the hospital by private transportation each year.
Palsgraf v. Long Island Railroad Co.
Facts:
P was standing on a Long Island Railroad (D) train platform when two men ran to catch a train.
The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on
the platform and another on the train.
The man dropped the package which exploded when it hit the tracks.
The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and
injuring P
Rule of Law:
A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances.
A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger
There was no duty to the P therefore no wrong in respect to the P
Duty question for the court; proximate cause is a question for the jury
Hughes v. Lord Advocate
Facts:
Workers left manhole unguarded along with their kerosene lanterns while on a break. 2 boys went into manhole with
a lantern. Once back up, one of them accidentally dropped lantern into manhole, causing an explosion. This gaseous
form of kerosene came into contact with the lanterns flame and created a large explosion. One boy fell into manhole
as a result and was severely burned.
Rule of Law:
measures scope of risk by what were the potential damages
Need to look at the type of harm results, was the harm that resulted what we thought it would
State (D) wants to look at:
At the manner in which the harm was results
Court says that the manner in which the harm results does not matter
Doughty v. Turner Manufacturing Co., Ltd.
Facts:
Doughty was injured in his work at a factory owned by Turner when a cover over a cauldron of molten hot liquid
fell in and caused an explosion, propelling the liquid toward him. It was not known that the cover would explode
when it fell in the liquid. Turner was found liable at trial and damages awarded, which they appealed.
Rule of Law:
D only owed duty to foreseeable risk of the splash not the explosion

20

Court is now saying the manner in which the harm results

What happened here was completely different than what the foreseeable risk
the splash did not occur, instead something completely different occurred
Have to look at the manner in which it occurred, and the manner in which it occurred is unforeseeable
No one thought this would occur
Reading risk and duty in a very limited fashion
Defining proximate cause: in which the manner it occurred not by the type of harm and does not look at the persons
at risk/injured
Hammerstein v. Jean Development West
Facts:
P, about 70yrs old, was guest at Ds hotel. Hotel knew he was diabetic and walking up and downstairs was bad for
him, but no 1st floor rooms available. There was an elevator. In the AM, fire alarms went off and elevators locked. P
had to walk down stairs. He twisted his ankle and got a blister, which became a gangrenous infection probably
because of his diabetes. There was no fire and fire alarms had done this in the past but were never fixed.
Rule of Law:
Injury was foreseeable (since they knew he had diabetics)
However, the extent of the injury was not
Injuring ankle was foreseeable but the gangrenous infection was not
Intervening Persons or Forces
Intervening Acts
How that effects concept of proximate cause
A party who engages in negligent conduct and that conduct itself does not result in damage, but another party
conduct results in the P injury
The other partys conduct is called the intervening acts
Comes between the first party who is negligent and the act that creates the injury
Question is whether, the first actors negligent is outside the scope of liability
Traditional Approach
Intervening criminal act was unforeseeable as a matter of law
Modern Approach
Intervening criminal acts maybe be foreseeable, at least in some circumstances, and so within the scope of the
created risk
Cases:
Marcus v. Staubs
Facts:
Ds drove 14-year-old Samantha Staubs and her 13-year-old sister Jessica across the WV state line into VA to
purchase alcohol.
D purchased the alcohol, the group traveled to a house in WV where they began drinking.
D left the party shortly thereafter. Samantha called D for a ride home, which he declined to provide.
Samantha and Misty Johnson left the home and stole a neighbors truck. Misty, who was intoxicated, drove the car,
got in an accident and killed Samantha.
Rule of Law:
A criminal intervening act DOES NOT immediately releases the D of liability. HOWEVER, liability depends on
circumstances and whether the injuries were reasonably foreseeable
Question asked: Whether the intervening criminal act was foreseeable to the D in terms of what he did
Collins v. Scenic Homes, Inc.
Facts:
Ps were injured or killed in an apartment complex fire. It was later discovered that the fire was the result of criminal
arson. P sued the construction contractor and the manager of the apartment complex for negligently failing to
construct and maintain the apartment complex with reasonably adequate fire safeguards. The apartment complex
was constructed more than 20 years before the fire occurred.
Rule of Law:
P alleged that their harms were proximately caused by the defendants failure to provide reasonable fire safeguards,
rather than the failure to protect against fires, the Court held that the fact that the fire was intentionally started did
not relieve the D of liability
Question asked: Whether or not the harm was foreseeable due to the negligence
Delaney v. Reynolds

21

 Facts:
P and D lived together at Reynolds house. P knew that D was depressed and abusing drugs while living with him. D
also kept a loaded and unlocked gun in the bedroom, a fact that D knew P was aware of. One day, P was under the
influence of drugs and alcohol and D demanded that P move out of the house. Upset, D went to the bedroom and
grabbed P gun. D then shot herself in the head, seriously injuring herself. D brought a negligence action against P for
her injuries
Rule of Law:
Is suicide foreseeable?
Traditional answer No unless you did something that drove the person to suicide or you
knew they were likely to do it
Derdiarian v. Felix Contracting Corp.
Facts:
D lost consciousness while driving and hit the P, a subcontractor at a construction site.
The P sued D and the construction company, the latter on the theory that they negligently failed to maintain a safe
work site.
The P prevailed at trial.
The D appealed, claiming that the accident was unforeseeable and thus that they should bear no liability.
Rule of Law:
When the risk created by the Ds negligence has not stabilized and an intervening case occurs, D is still negligent
Ventricelli v. Kenney System Rent A Car, Inc
Facts:
P leased a car from D. The car had a defective trunk lid, which would not close correctly.
D tried to repair the trunk, but was unsuccessful. While parked in a parking space, P attempted to close the trunk.
The driver of the car parked behind P accidently accelerated forward and collided with P, causing him injuries
Rule of Law:
Three factors that determine whether a defendants negligence is a proximate cause of a plaintiffs injury are
convenience, public policy, and justice.
It was foreseeable, the matter in which it occurred was unforeseeable
Recovery for negligence may be obtained only where the injuries incurred were reasonably foreseeable from the acts
or omissions constituting the breach of duty.
Marshall v. Nugent
Facts:
Car (1st car) where P was passenger, was swerved off the road by truck driver, D. Truck driver helped 1st car get
back on road. Meanwhile,P stayed by the road to warn oncoming traffic (with a flag) of the accident scene. While
doing so, P was struck by an oncoming vehicle (2nd car). Court found truck driver negligent, truck driver appeals
that he was not the proximate cause of the accident.
Rule of Law:
The D remains liable for the full consequences of his negligent act when the intervening force is one which a
reasonable man would have foreseen as likely to occur under the circumstances, and the issue of foreseeability
remains a question of fact for the jury.
Defenses to Negligence
Allocating Full Responsibility to the Defendant in the Interests of Policy or Jusitice
Nonreciprocal Risks + Known Disability

Case 1:
Knowledge (YES) + Duty to Protect (YES) + Risk to Himself (YES)
Case 2:
Knowledge (YES) + Duty to Protect (NO) + Risk to Himself (NO)
Case 3:
Knowledge (NO) + Duty to Protect (NO) + Risk to Himself (NO)
Case:
Bexiga v. Havir Manufacturing Corp.
Facts:
P minor worker was injured while operating a machine for his employer, and he and P father filed an action for
negligence, strict liability in tort, and breach of warranty of fitness of purpose against D manufacturer in a products
liability case.
Rule of Law:

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 If you are responsible to protect someone against their own actions (negligence) than they are negligence for failing
to protect them against their actions
Assumption of Risk:
Three types:
Express
An agreement/contract (formal)
Bars recovery
Implied
No agreement but look at what the person did and by their actions were consenting
No formal agreement that is written or sign with the risks that might occur
Implied risk sometimes is so strong and so out there that it can turn into express risk
Primary
There is such an assumption of risk that the D owes no duty
Questions Regarding Express Risk:
Choice/voluntary or essential
Stelluti not essential but voluntary
Tunkl essential
Moore not essential but voluntary
Bargain Power
Stelluti no bargaining power
Tunkl no bargaining power
Moore yes bargaining power
Scope
Stelluti no scope argument here
Tunkl no scope argument
Moore inherent use word negligent
Cases:
Stelluti v. Caspapenn, LLC
Facts:
While participating in a bicycle spinning class, the adjustable handlebars dislodged from the member's bike and she
fell forward while her feet remained strapped to the pedals, and she incurred various injuries. The member asserted
negligence against the fitness center in failing to maintain and set up the bike, failing to properly instruct her on its
use, failing to provide warnings and safe equipment, and other claims
Rule of Law:
A valid health club contract of adhesion with a waiver and release of liability for injuries will be enforced so long as
the clubs actions do not rise to the heightened standard of recklessness or intent to harm.
A plaintiff participating in a sporting event assumes the risk of harm caused by dangers inherent in the sport, while
the host of a sporting event has a duty not to increase these inherent risks.
Tunkl v. Regents of University of California
Facts:
The decedent brought this action to recover damages for personal injuries alleged to have resulted from the
negligence of two physicians in the employ of the University of California Los Angeles Medical Center, a hospital
operated and maintained by the Regents as a nonprofit charitable institution. The jury returned a verdict in favor of
the Regents based on the decedent's execution of an agreement releasing the medical center from liability for
services provided to him.
Rule of Law:
The court found that the agreement exhibited all of the characteristics set forth by the courts of the type of
transaction in which exculpatory provisions would be held invalid, including the following:
(1) the agreement involved an institution subject to public regulation;
(2) the hospital's services to those who needed the particular skill of its staff and facilities constituted a practical and
crucial necessity; and
(3) the hospital held itself out as willing to perform its services for those qualified members of the public
Moore v. Hartley Motors
Facts:
The injured party was injured when she drove her ATV over a rock and the vehicle rolled over.
Before participating in the class, the injured party signed a release of liability

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 Rule of Law:
A signed waiver and release will not preclude liability for negligence if the danger was unrelated to the inherent
risks of the activity and could be eliminated or mitigated through the exercise of reasonable care.
Betts v. Crawford
Facts:
P worked as a housekeeper for D.
When she was carrying bundled sheets, she tripped over some items left on the stairs, fell down the stairs and
suffered serious injuries
Rule of Law:
Assumed risk is now merged into the comparative negligence system
There is no distinction between contributory negligence and assumption of the risk when raised as a defense to an
established breach of duty.
Sunday v. Stratton Corp.
Facts:
P was a skier at the Ds ski resort, he was on smooth novice trail when the P hit a small bush that was concealed by
snow.
Ps injuries resulted in permanent quadriplegia
Rule of Law:
When P assumes the risk of injury then cannot recover HOWEVER when the D fails to use reasonable care and
breaches a duty then P can RECOVER
Avila v. Citrus Community College District
Facts:
P was participating in a preseason college baseball game against a team played, coached, and hosted by the District
(defendant).
During the game, a pitcher for the Districts team hit Avila in the head with a pitch, possibly intentionally in
retaliation for a prior hit batter
P sued D for negligence
Rule of Law:
A P participating in a sporting event assumes the risk of harm caused by dangers inherent in the sport, while the host
of a sporting event has a duty not to increase these inherent risks.
Special Duties
Landowners Duties to Trespassers, Licensees, Invitees, and Children
Invitee
Definition:
On premises for pecuniary benefit of the landowner or on premises held open to the public
Examples:
people with business dealings, service providers, employees, customers in retail stores, people at airports, parks
General Duty:
duty of ordinary care
Licensee
Definition:
on premises with permission for limited purposes
Examples:
social guests, hunters and fisherman with tacit or implied permission, on land to look for pet, door to door sellers,
solicitors
General Duty:
duty to not wilfully, wantonly or intentionally injure
Known Danger:
activities: duty of ordinary care (lookout and warning); concealed dangerous unknown conditions: duty to warn
you know they were there and know of danger
Trespasser
Definition
no legal right to be on land and without owners consent
Examples
those who could be sued for trespass, those unintentionally on premises, invitees or licensees outside scope
General Duty

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duty to not wilfully, wantonly intentionally injure - free to carry on dangerous activities; maintain dangerous
conditions, need not warn
Discovered/Known Danger
duty of ordinary care (warning); control if warning insufficient
dont know they are there but if you discover than have a duty/no duty to find trespassers
Foreseeable (constant in limited area)
duty of ordinary care
Children (Attractive Nuisance)
Definition
of tender age ( 10 and down no set age)
General Duty
duty of ordinary care
see conditions pg. 309/ Bennett case
Cases:
Gladon v. Greater Cleveland Regional Transit Authority
Facts:
P was a little tipsy. Got off at the wrong train stop and was attacked on platform. Ends up ontracks (doesnt know
how), while on the track his legs are crushed by an oncoming train.
Claim by the D: operator was negligent by failing to bring the train to a stop after the point she perceived or
shouldve perceived the Ps peril prior to her striking the P
Rule of Law:
P was not an invitee on the track, regardless of how he got there; as trespasser or licensee then the possessor only
owed him to refrain from willful, wanton, or reckless conduct likely to injure him. Further, owner has no duty
to anticipate or prevent Ps presence.
When a possessor discovers a trespasser or licensee in peril there is a duty to use ordinary care to avoid injuring
him
Bennett v. Stanley
Facts:
Ds had an unprotected pool that they let turn into a pond pretty much. Ds knew next door neighbors had young
children. Ds son and wife drowned.
P claim: is that P was negligent because pool would create an unreasonable risk of harm to children who would not
realize the danger
Rule of Law:
Attractive Nuisance Doctrine A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition upon land if:
1. The place where the condition exists is one upon which the possessor knows or has reason to know that children
are likely to trespass, and
2. The condition is one of which the possessor knows or has reason to know and which realizes or should realize
will involve an unreasonable risk of death or serious bodily harm to such children, and
3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling
with it or in coming within the area made dangerous by it, and
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as
compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Kentucky River Medical Center v. McIntosh
Facts:
Irene McIntosh (P) a paramedic was transporting a critically ill patient to Jackson Hospital Corporation ( doing
business as Kentucky River Medical Center-collectively the hospital) (D) for treatment. While transporting the
patient, P tripped over a steep curb and suffered injuries. P used entrance hundreds of times without tripping.
Rule of Law:
Open and Obvious when the danger is open and obvious there is no duty of the landowner to protect against the
danger/harm
People will use their own reasonable care when dealing with a danger
Is open and obvious a question of:
No duty

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Because as a landowner I can assume that you will protect yourself (assume to see it/ assume to protect yourself)
and I dont have to do anything
It is up to you
The judge decides the case
No breach of duty
Now there is duty to exercise reasonable care
If there is a duty to exercise reasonable, did I exercise reasonable care? (the question)
The jury decides the case
Fault
How much fault between either party
Was the P somewhat negligence (should have seen it or should have avoided it)
Comparative negligence
Traditionally barred from recovery
Modern there should some liability on who created the situation and to protect people from it
Open and Obvious Questions to ask:
Can the possessor Foresee the injury?
Does the P have a duty to act reasonably to ensure own safety
Should the landowner have foresee, that there would be people that would be distracted,
if not then.Would a reasonable person have seen it
if not then would the D have seen it?
Nonfeasance
The No-Duty-To-Act Rule
One person owes another no duty to take active or affirmative steps for the others protection
Defendant is generally liability for misfeasance (negligence in doing something active) but not for nonfeasance
(doing nothing)
Reasons for nonfeasance law
People should not count on nonprofessionals for rescue
Circle of potentially liable non-rescuers would be difficult to draw
Altruism makes the problem a small one and liability might actually reduce the number of altruistic responses by
depriving people credit for altruism
People would be deterred by threat of liability from putting themselves in a position where they might be called
upon to attempt to rescue
Exceptions to the no-duty rule:
If a person knows or has reason to know that his, whether tortious or innocent, has caused the harm to another
person, then he has a duty to render assistance to prevent further harm
If a person has created a continuing risk of harm, even innocently, a duty arises to employ reasonable care to
prevent or minimize that risk from coming to fruition
Exception may be found if a statute or ordinance requires a person to act affirmatively for the protection of another
One who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to
perform such services with due care or with such competence and skill as he possesses
Concern/ reasonable for voluntarily services If you help you might provide someone else who might have been
able to provide better help
Once you start/being to act have to exercise reasonable care
Cases:
Estate of Cilley v. Lane
Facts:
Cilley, sued Lane over the death of Cilleys son. Joshua Cilley died on Jan. 31, 2005, at age 27 in the Calais
Regional Hospital emergency room of a gunshot wound to the abdomen He was shot while in Lanes trailer. Lane,
described as the younger mans on-again, off-again lover, allegedly sat with him for at least 15 minutes after he was
shot before attempting to seek medical assistance. Steven Cilley said earlier this year that the doctor who treated his
injured son told him Joshua Cilley could have been saved if he had arrived at the hospital five minutes earlier.
Rule of Law:
Absent a special relationship or conduct that endangered another, a person owes no duty to call aid for an injured
person
Since Cilley was a trespasser at the time of the incident, Lanes only duty to him was to refrain from wanton, willful,
or reckless behavior

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 Lanes failure to contact emergency assistance for Cilley immediately after she heard the pop [of the gunshot] does
not rise to the level of wanton, willful, or reckless behavior because Lane did not create the danger to Cilley, nor
commit any act that led to his initial injury

Wakulich v. Mraz
Facts:
Wakulich, a sixteen-year-old girl, was visiting the home of the two Mraz brothers (defendants). The Mraz brothers
dared Wakulich to drink an entire bottle of liquor, which she accomplished. However, Wakulich lost consciousness
and began vomiting. The Mraz brothers moved Wakulich downstairs and placed her on a couch. They later came
back to check on Wakulich and removed her vomit-soaked blouse and placed a pillow under her head. When other
members of the Mraz family offered to call 911, the brothers prevented them from doing so. The Mraz brothers then
brought Wakulich to her friends house. The friend brought Wakulich to a hospital, where she died of alcohol
poisoning. Wakulichs family (plaintiffs) brought a wrongful death action against the Mraz brothers, alleging that the
brothers owed Wakulich a duty of reasonable care after voluntarily undertaking steps to care for her.
Rule of Law:
Defendants having voluntarily undertaken to care for decedent after she became unconscious and having allegedly
failed to exercise due care in the performance of that undertaking
Farwell v. Keaton
Facts:
Mairs, Swanson, and Newell (defendants), all eighteen years of age, were drinking beer at a mutual friends house.
Mairs drove the three of them back to their school in the early morning. On the way back, Mairs lost control of the
car and hit a motorcycle driven by Podias. The car went off the road, and the three men huddled around the car.
Although they saw Podias lying in the road, no one called for help or assisted Podias. All three men had cell phones,
and called friends but not the police, because they did not want to get into trouble. The three men decided to leave
the scene of the accident and drove away. After the men left, another car struck Podias in the road. Podias died from
the injuries sustained in the two accidents. Podias estate (plaintiff) brought a claim against Mairs, Swanson, and
Newell for Podias death.
Rule of Law:
To determine the existence of a duty, a court must balance notions of fairness, public policy, common sense, and
morality.
Have to let a fact finder to determine whether or not there was liability
Podias v. Mairs
Facts:
D were passengers in a car driven by their friend when their vehicle struck a motorcyclist.
D and the driver all existed their vehicle and looked around and made numerous cell phone calls, but none called for
emergency assistance.
D continually told the driver not to get them involved.
Eventually, all of them left the scene and the motorcyclist was struck by another vehicle and killed.
P argued that, under the circumstances, D owed a duty to the decedent which a jury could reasonably find was
breached and that, under the derivative theory of concert liability, a jury could reasonably find that defendants
substantially assisted another in the breach of a direct duty.
Rule of Law:
To determine the existence of a duty, a court must balance notions of fairness, public policy, common sense, and
morality.
Duty to Protect From Third Parties
Relationship with Plaintiff
Formal relationships
Duty arises
Cases:
Iseberg v. Gross
Facts:
P, Slavin, and Gross (defendant) were business partners. After a business deal fell through, Slavin informed Gross
multiple times that he wanted to harm P. Slavin even mentioned to Gross that he wished to kill P. Gross failed to
warn Iseberg of Slavins threats, and Slavin shot Iseberg, causing him serious injury. P brought a negligence claim
against Gross, claiming that Gross was obligated to warn Iseberg of Slavins threats.
Rule of Law:

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 A person has no duty to protect another from criminal attack by a third person, absent a special relationship
between the parties, characterized as a common carrier-passenger, innkeeper-guest, business-invitor-invitee, or
voluntary custodian-protectee relationship.
Not look so much at relationship but look at reasonable foreseeability, ease (convenience, burden), potential injury
Affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the
benefit of another only if there exists a special relationship between them
None of these matter if there is no special relationship thus the duty
Posecali v. Wal-Mart
Facts:
P was shopping at a store owned by Wal-Mart (defendant) during the daytime. While in the parking lot, also owned
by Wal-Mart, a man robbed P of her jewelry after threatening her with a gun. Wal-Mart had not posted security
guards in the parking lot. In the last six and a half years, three robberies took place on Wal-Marts property, while
eighty-three similar offenses took place on the same block. P brought a negligence claim against Wal-Mart, alleging
that it had a duty to place security guards in the parking lot because of the past criminal activity.
Rule of Law:
Under the balancing test approach, a court determines the duty owed by a defendant to a plaintiff to protect from
third persons by balancing the foreseeability and gravity of harm against the burden imposed on the defendant to
protect against the harm.
Main issue whether there was a duty owed to the P?
Yes, business invitee
Other issue foreseeability, ease, potential injury
4 approaches that have been used for foreseeability:
Specific harm rule too restrictive
Similar incident test hard to label what constitutes a similar incident
Totality of the circumstances most common
Balancing test this is one being used
Ward v. Inishmaan Assocs. Ltd. v. Partnership
Facts:
Merry Sommers and P were long-time neighbors in a 329-unit mixed income-housing complex owned by Inishmaan
Associates Ltd. Partnership (defendant) and managed by JCM Management Company (JCM) (defendant). For years,
there was friction between Sommers and P. Each tenant made numerous complaints to JCM about the other tenant.
Finally, Sommers stabbed P several times outside Ps apartment. Sommers was arrested and charged with attempted
murder.
Rule of Law:
A landlord owes no duty of care to protect a tenant from criminal attack by a third person unless the landlord
provided security on the premises or was responsible for a physical defect that enhanced the risk of criminal attack
to a tenant.
Landlord cannot control the people they have the to control the conditions to make they are safe
Dudley v. Offender Aid & Restoration of Richmond, Inc
Facts:
The P, administrator of the Debbie Douglas estate, brought this action seeking to recover compensatory and punitive
damages against the D halfway house for personal injuries suffered when one of its residents escaped, and raped and
strangled Debbie Douglas. The P asserts that OAR had a duty to exercise reasonable care in its supervision of its
inmate,
Rule of Law:
Under the general rule one owes no duty to control the conduct of a third person for the benefit of the plaintiff
HOWEVER, if the defendant is in a special relationship to either the plaintiff or the third person, the defendant is
under a duty of care
Custody of the person
In your care
The defendants duty ran not only to victims that might be identified in advance but to all those who are directly
and foreseeably exposed to risk of bodily harm from the D negligence
In this case the P was within the area of danger
Tarasoff v. Regents of University of California
Facts:
P was a student at school

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 D were therapists, who learned that Poddar (the killer) said in one of his sessions that he was going to kill Tarasoff,
the school detained the killer, and shortly after released him
D never informed Tarasoff about Poddar, who killed her
P brought suit against D for wrongful death claiming that D owed a duty to inform Tarasoff
of Poddar
Rule of Law:
The relationship between a therapist/patient supports the duty on the part of the therapist to exercise reasonable care
against the dangers posed by the patients illness.
Negligent Infliction of Emotional Distress
Cases:
Catron v. Lewis
Facts:
D struck and killed a girl. P sued for negligent infliction of emotional distress for mental injuries he suffered from
witnessing the death
Rule of Law:
The plaintiff seeking to bring an action for negligent infliction of emotional distress must show either:
That he or she is a reasonably foreseeable bystander victim based upon an intimate familial relationship with a
seriously injured victim of the defendants negligence or
That the plaintiff was a direct victim of the defendants negligence because the plaintiff was within the zone of
danger of the negligence in question
Dillon v. Legg
Facts:
A mother and her daughter witnessed the death of her other child in a car accident caused by a negligent driver. The
mother and daughter sued for emotional distress as a result of witnessing the accident
Rule of Law:
The court relied on foreseeability in order to establish whether or not a negligent defendant owed a duty of care to a
bystander. The court urged a case by case analysis of several factors to determine if foreseeability would create a
duty to a bystander:
Whether the plaintiff was near the scene of the accident,
Whether the plaintiff suffered an emotional shock from contemporaneously observing the accident, and
Whether the plaintiff is closely related to the victim

29