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Responsibility in Tort
A. Vicarious liability
1. Respondeat Superior (let the master answer [for the wrongs of the servant])
a. Walters sued Wal-Mart for wrongful dispensing of her medication. Even with proper protocols in place, since the
pharmacist acted in his role as pharmacist to dispense the wrong medication, Wal-Mart is liable.
B. Multiple Tortfeasors
C. Comparative Responsibility
D. Liability in Tort
II. Process
A. Very few Federal common laws anymore, mostly statutes.
B. Many states have lots of common law
C. Fewer & fewer intentional torts cases now, more negligence. Why? Insurance covers
III. Battery
A. Basic Definition
1. is liable to the for battery if:
a. acts intending to cause contact with ; and
b. s contact with is harmful or offensive; and
c. Contact with occurs.
B. Restatement (3d) Torts 101
1. An actor is subject to liability to another for battery if:
a. the actor intends to cause a contact with the person of the other;
b. the actor's conduct causes such a contact;
c. the contact
i. is offensive or
ii. causes bodily harm to the other; and
d. the other does not actually consent to the contact [or to the conduct that
causes the contact].
2. A contact is offensive if:
a. the contact offends a reasonable sense of personal dignity; or
b. the actor knows that the contact seriously offends the other's sense of
personal dignity, and it is not unduly burdensome for the actor to refrain
from causing the contact.
C. Transfer of intent
1. A tortfeasor is liable for any tort against any victim occurred while intending to
commit any other tort against any other victim
a. In re White: 11 U.S.C. 523(a)(6): A debt incurred from an action based upon a willful (deliberate &
intentional) and malicious injury by the debtor to another person may be nondischargeable in bankruptcy
i. Actual tort against intended for 3P is an intentional tort
b. Md.: Nelson v. Carroll ( attempted to pistolwhip when gun fired)
i. Actual tort against when a different tort was intended is an
intentional tort
D. Objective standard of offensive contact
1. Reasonably & customary contact is expected, implied consent
E. Standard of Intent:

1. Single Intent: Intent-to-contact
a. -friendly rule. Harder to prove intent to harm
b. Most courts require intent to cause contact regardless of resulting harm
i. Conn.: Cecarelli v. Maher (dance hall fight)
ii. Ohio: Cole v. Hibberd (drunk lady kicked friend)
Intent to contact is sufficient, not intent to harm
iii. Fla.: Paul v. Holbrook (inappropriate workplace touching)
Contact need not be violent. Offensive contact is sufficient
for battery
iv. Wis.: Vosburg v. Putney (implied consent on playground, not
Playground rules. Context of situation drives whether
some conduct is appropriate.
Eggshell Plaintiff: takes as he finds him. Liable for any
harm that results from contact
Contact can be assumed in given circumstance
o Playgrounds, football field, etc.
v. Utah: Wagner v. State (mental patient in grocery store/ sovereign
Intent to contact is sufficient for battery, thus it is not
2. Dual Intent: Intent-to-contact PLUS intent-to-harm
a. -friendly rule. You have to get inside s head.
b. Some courts require intent to cause harm or offense, not just the contact
i. Colo.: White v. Muniz (mentally disturbed woman killed another
Must prove intent to harm as well as intent to contact
3. Knowledge of the action requires a subjective standard.
a. Not enough to prove a reasonable person would know. This specific must
b. must know to a near certainty conduct will produce the harm
c. Knowledge is sufficient, but NOT NECESSARY to satisfy the intent element.
d. Wash: Garratt v. Dailey (kid pulling out chair on aunt)- substantial certainty
is sufficient to establish intent
IV. Assault
A. Basic Definition [R(2d)T 21]
1. is liable for assault if:
2. acts intending to cause harmful or offensive contact or an imminent apprehension
of such contact; and
3. is put in such imminent apprehension
a. If does not intend to cause the contact or apprehension (or is not substantially certain of it), there is no assault even if
s act involves unreasonable risk of causing such contact or reasonable apprehension of such contact and thus would
be negligent or reckless (negligent or reckless v. desire or substantial certainty)
B. Source of Danger [R(2d)T 25)

1. can engage in assault by putting in apprehension that a third person or force of
nature, rather than the , is about to inflict the contact.
C. Intent to cause harm
1. Even if no battery is intended, the apprehension of harm by is sufficient
a. N.H.: Beach v. Hancock (unloaded gun fired at to scare him)
i. Still an assault because apprehended to imminent harm
D. Apprehension of harm
1. must apprehend that contact will occur. Anguish or nerves is not sufficient. Real
danger need not be present, but the apprehension of danger must be.
a. S.C.: Brooker v. Silverthorne (man yelling at phone operator)
i. No assault. Operator could not apprehend imminent harm since the
man could not have acted upon his threats
b. Kan.: Vetter v. Morgan (yelling at woman from car, accident)
i. Assault because the woman could apprehend to danger even if she
was in her own car
2. must apprehend harm before harm occurs.
a. Va.: Koffman v. Garnett (coach tackles football player from behind)
i. Player could not have apprehended to the harm since it was
happening before he realized what was happening
V. Defense
A. Consent to contact
1. Consensual privileges ( must prove lack of consent)
a. Evidence has consented
i. Can be communicated
ii. Can be determined by facts and circumstance
2. Non-consensual privileges ( must prove consent to avoid liability) must prove
both subjectively faced threat & action was objectively reasonable
a. Self-Defense
i. No threat of imminent death or bodily harm
ii. Threat of imminent death or bodily harm
b. Defense of others
c. Defense of property
B. Cal.: Haeussler v. De Loretto (man punches neighbor when he found dog and was angry)
1. A self-defense plea can be a defense of a battery if (1) The defendant did not
precipitate the fight, (2) whether the defendant acted in self-defense, (3) In doing
so, was more force than reasonably necessary under the circumstances used; even if
the defendant is the first to attack
C. Iowa: Katko v. Briney (booby trap gun shoots trespasser)
1. Excessive force cannot be used
2. Booby traps do not have discretion
3. Defense of property has lower threshold of force allowed than self-defense
VI. Infliction of Emotional Distress ( often loses these cases. Court is cautious.)
A. Basic Definition
1. is liable for IIED if:

2. acts in extreme or outrageous conduct intentionally or recklessly
3. Where the extreme or outrageous conduct causes emotional distress and/or bodily
a. Where conduct is directed at 3d party
i. is liable to members of that persons immediate family present for
emotional distress
ii. is liable to any other person present if such distress results in
bodily harm
B. Evidence to prove IIED:
1. Physiological manifestations
a. Nausea, vomiting, headaches, severe weight gain or loss, etc.
2. Psychological manifestations
a. Sleeplessness, depression, anxiety, crying spells, emotional outbursts,
nightmares, drug/alcohol abuse, fright, horror, grief, shame, humiliation,
embarrassment, anger, disappointment, worry, etc.
b. N.C.: Dickens v. Puryear (angry father w/ski masks beats up man)
3. Medical treatment
a. Medical treatment sought, medication prescribed, or diagnosed with
medical or psychiatric disorder: PTSD, clinical depression, traumatically
induced neurosis or psychosis, phobia
4. Duration and intensity of symptoms or treatment
5. Other evidence that s conduct caused to suffer impairment in daily functioning
6. In certain instances, the extreme or outrageous character of s conduct is itself
important evidence of serious mental injury
a. 7CCA: Littlefield v. McGuffey (racist landlord kicks out, terrorizes family)
7. Del.: Hunt v. State: (school cop berated child to coerce confession from bully)
C. Outrageous Conduct
1. To be considered outrageous, conduct must be well outside acceptable norms.
a. E.D. Ark.: Jones v. Clinton (unwelcome sexual proposition with no coercion
or threats is not outrageous)
VII. Negligence (1) determine duty, (2) determine breach, (3) determine causation
A. Basic Definition
1. Actor A is subject to liability to person P for negligence if:
a. P has suffered an injury
b. A owed a duty to a class of persons including P to take care not to cause an
injury of the kind suffered by P
c. A breached that duty of care
d. As breach was an actual & proximate cause of Ps injury
2. Injury
a. Physical harm, loss of wealth/property, emotional distress
b. NOT annoyance, etc.
c. Some jurisdictions require the injury to be objectively foreseeable
a. An obligation to not cause the type of injury

b. The duty must be foreseeable
i. No duty of care to rescue or protect absent a specific relationship
ii. If you begin a rescue, you must finish If you stop helping you are
iii. MN & VT have duty to rescue legislation
c. Depending on the type of negligence claim, courts approach duty differently
i. Types of Duty of Care ( has burden of proof to establish duty)
Qualified Duty of Care
Affirmative Duty (duty to rescue)
o Unreasonably failed to provide assistance
Premises liability
o Permitted or maintained unreasonably dangerous
conditions on property
Pure economic loss
o Acted w/o reasonable care for s economic
4. Proximate Cause (USUALLY AN ISSUE OF FACTthough judges would rather decide
for themselves as an issue of law)
a. A cause that directly produces an event, and without it the event would not
have occurred
b. Some jurisdictions require that the harm must be an objectively foreseeable
result of the cause
B. Restatement (3d) Torts 3: Negligence definition
C. Restatement (3d) Torts 4: Physical Harm definition
D. Restatement (3d) Torts 6: Liability for physical harm definition
E. Restatement (3d) Torts 7: Duty definition
F. Affirmative Duties to Rescue & Protect
1. Eng.: Heaven v. Pender (duty & neg. established)
a. Ordinary care: If not used and injury occurs, is liable
2. Eng.: Winterbottom v. Wright (privity: must have duty to have neg., even if harm
was done. Duty is to buyer, not end user)
3. N.Y.: Thomas v. Winchester (limited Winterbottomforeseeable that there will be
an end user, thus a duty to them is owed)
4. N.Y. MacPherson v. Buick (defective wheel caused accident)
a. Manuf. is liable to end user even if they are not the purchaser if the
consequences of a breach of duty of care are foreseeable
5. Ohio: Mussivand v. David (cheating wife gave husband the gift that keeps on giving)
6. Mass.: Osterlind v. Hill (drowning from capsized canoe)
a. A duty of care cannot exist in the case of nonfeasance if the victim was
capable of helping himself.
7. Cal.: Tarasoff v. Regents (Psychs & Cops nondisclosure, murder of Tarsoff)
a. Failure to warn
b. A psychologist has a duty to warn a third party when their patient discloses
malicious thoughts about them.

G. Premises Liability
1. Landowner Duty of Care
a. Many states have abolished the distinction b/w licensees & invitees.
i. [R(3d)T] muddies distinction for all except flagrant trespassers.
b. To Invitees (business guests & invited public)
i. Duty or reasonable care
ii. Liable if:
knew or should have known the condition of the land &
should have realized the risk of harm
Should expect invitee would not discover the danger or
protect against it
Fails to exercise reasonable care to protect invitee
c. To Licensees (social guests)
i. Lesser duty of care than invitees
ii. Liable if:
knows or has reason to know of condition & that it
involves unreasonable risk of harm to licensee & should
expect licensee wont know of danger
fails to exercise reasonable care to make the condition
safe or warn of risk
Licensee does not know or have reason to know of
condition of risk
d. To Trespassers (uninvited guests)
i. Generally, only a duty to avoid wanton & willful conduct causing
harm BUT
ii. is liable if:
has maintained artificial conditions on land he knows is
likely to cause serious bodily harm, has reason to believe
trespassers constantly intrude & will not discover the
condition; and
Fails to warn trespassers of the condition
e. To Child Trespassers (uninvited children)
i. liable for artificial condition created on land if:
knows or should know children are likely to trespass
knows or should know condition involves unreasonable
risk to children
Children do not discover or realize the risk
Utility of the condition doesnt outweigh risk to children
fails to exercise reasonable care to eliminate danger or
protect children
2. Ind.: Baker v. Fenneman (Taco Bell injury)
a. Invitee injuries are not limited to those caused by landowner
b. [R(2d)T 314(A)]: Common Carrier has duty to provide first aid
i. Applies to innkeepers, landowners open to public

3. Cal.: Rowland v. Christian (Faulty fixtures injury)
a. Licensee injuries can include failure to warn or lack of repair. Landowner is
responsible for the management of his property
b. In California, landowner has duty of care to all people on property
regardless of their status of invitation
H. Pure Economic Loss
1. Intangible injury, distinct from physical injury.
a. Restricted recovery because potential losses & # of s are limitless
b. You can recover when connected to physical injury, but otherwise no.
i. Unless covered by statute (e.g. oil spill)
ii. You can buy insurance for it instead.
2. W.V.: Aikens v. Debow (downed bridge caused economic loss to motel)
a. Pure economic loss w/o physical harm as a result of negligent injury to the
property of a 3d party is not recoverable
b. The economic injury is too removed from the negligent harm.
I. Breach & Meaning of Negligence (BREACH = USUALLY ISSUE OF FACT)
1. Competing views of how often to determine breach as a matter of law:
a. Holmes: More often. Judges can guide future cases, provide certainty
b. Cardozo: Less often. Juries more flexible, answer specific situation
2. Inadvertent negligence: Simply knowing the duty of care doesnt make you
reckless automatically. You could just be careless.
a. Foreseeable incapacity is not a defense, in contrast to sudden emergency:
Epileptic driving vs. Seizure for first time
3. Ill.: Myers v. Heritage Enters. (patient fall during transfer to bedordinary standard
of care for nonmedical staff in medical facility unless stated by statute)
4. Pa.: Martin v. Evans (truck backed up pinned man to car. Ordinary standard)
5. N.J.: Pingaro v. Rossi (dog bite under statute. When there is a statute, only needs
to prove each of the elements of statute were present. Strict Liability)
6. Pa.: Jones v. Port Authority of Allegheny County (Injury from moving city bus,
common carriers have higher extraordinary standard of care, not ordinary care)
7. Mich.: Campbell v. Kovich (lawnmower debris has burden to prove breach.
Injury that arises from action taken with ordinary care is not a breach.)
8. N.Y.: Adams v. Bullock (swinging wire on bridge need not protect against
extraordinary actions by child- that would cause injury)
J. The Person of Ordinary Prudence
1. Eng.: Vaughan v. Menlove (haystack fire establishes reasonable man std)
2. Ill.: Appelhans v. McFall(child on trike struck old man. tender years doctrine)
a. [R(2d)T283(A)]Std duty of care that kids ought to be held to is that of a
reasonable person of that age, intelligence, and experience under same
i. MA, MN, IL have similar rules.
3. O.W.Holmes: A clumsy person is to be held to the same standard as others for their
benefit. Clumsiness is as troublesome as guilty neglect

K. Custom: In professions (medical, accounting, legal, etc.) The custom is the standard of care.
In other fields, it is evidence of the standard of care.
1. Medical battery: patient did not consent. Medical negligence: Patient consented,
but doctor did not sufficiently inform, and reasonable patient would not have had
they been properly informed.
2. 2CCA: The T.J. Hooper (Ships lost in storm. Industry Std is evidence, but is not
dispositive. Ships could have and should have used tech at their disposal.)
3. Ga.: Johnson v. Riverdale (malpractice anesthesia: Simple test would have
prevented death)
a. Overturned by Condra
b. Cannot cross examine expert witness about how they would have
personally treated decedent
4. Ga.: Condra v. Atlanta Ortho (malpractice prescription: caused life altering disease)
a. Overturns Johnson
b. Testimony of s experts admissible both as substantive evidence and to
impeach the experts opinion regarding the applicable standard of care
5. N.J.: Largey v. Rothman (malpractice surgical procedure: sufficient info for consent)
a. The standard is not what physicians by custom tell their patients, but what
is necessary for a reasonably prudent patient would need to make an
informed decision
L. Cost Benefit Analysis
1. Restatement (3d) Torts 3
a. Foreseeable likelihood, foreseeable severity of injury, burden of precautions
to eliminate or reduce the risk of harm
2. U.S. v. Carroll Towing (ships collided attached at pier. Level of duty of care
determined by formula)
a. B<PL: Burden < Probability x Injury
i. If burden is less, is negligent
ii. If more, is not negligent
3. R.I. Hosp. Trust Natl Bank v. Zapata (Bank accepted stolen checks. We dont coat
the bottom of the Grand Canyon with soft nets to catch those who might fall in)
4. Posner: Hands Carroll formula measures dollar cost of precautions against dollar
value of harm. Precautions costlier than the harm it prevents ought not to be taken.
M. Res Ipsa Loquitor
1. Basic Definition
a. s injury does not ordinarily occur in the absence of carelessness
b. The instrumentality causing the injury was in s exclusive control
i. [R(3d)T] has moved away from exclusive control, toward certain
class of actors of which is a part standard
c. The injury did not arise from acts or carelessness by
d. MN law uses a similar formulation
2. Burden of Proof:
a. Most jurisdictions: an inference of neg.. must prove.
b. Some jurisdictions: rebuttable presumption of neg. must prove.

3. Eng.: Byrne v. Boadle (flour barrel fell on person. alone had all information about
incident, but getting hit with the barrel was proof that was responsible.)
4. N.Y.: Kambat v. St. Francis Hospital (sponge in patient. Case fits all 3 elements of Res
Ipsa on a rational basis, not that it was exclusively proved)
a. Even if shows evidence of due care or alt causes of injury, jury can still
find presence of Res Ipsa.
N. Causation But-For Test & Loss of Chance
1. Types of Causes
a. But-For, Cause-in-Fact, Actual Cause:
i. Broad cause(s), cause(s) that allows the situation to occur.
ii. Issue for jury
iii. Need both:
General Causationassumed when already known
o This type of action can cause this injury
Specific Causation
o The action in this case caused this injury
iv. Alternative Causation: Allows to recover when a harm was
obviously caused w/o specific knowledge of which tortfeasor caused
the injury
For example:
o McDonald: both negligent, both caused.
o Summers: both negligent, only one caused
o In both cases, both are culpable anyway.
b. Proximate cause, Cause-in-fact:
i. The specific cause of the injury
c. Legal Cause = But-For + Proximate
2. Minn.: Muckler v. Buchl (fall down badly lit stairs. Poor lighting caused accident
(more likely than not), is but-for cause, thus liable)
3. W.D. Pa.: Butts v. Weisz (fall down stairs. did not provide sufficient evidence that
was but-for cause of injury.)
a. Newer than Muckler
b. Easier to get summary judgment today
c. Federal court v. state court
4. E.D. Pa.: Jones v. LA Fitness (Prima Facie case reqs to show evidence establishing
reasonable basis for negligence, not prove was negligent)
5. Mich.: Falcon v. Memorial Hospital (Died at birth, procedure would have given her
37.5% chance to live. Probability need not be related to probability of success of
measures taken. Overturned in Mich. Law.: now reqs >50%)
6. N.J.D.C. Federczyk v. Caribbean Cruise Lines (slipnfall aboard ship. Found for , no
link to causation. Expert testimony was speculative [adhesive strips on floor may
have prevented])
O. Causation Multiple Causes
1. Multiple Cause Tests
a. Multiple necessary cause

i. 2 or more causes were necessary to cause the injury. 1 of them
alone would not have caused it
b. Multiple sufficient causes: concurrent causes
i. 2 or more causes happened at the same time, either 1 alone would
have caused the accident
c. Substantial factor test (Not really separate category to determine cause)
i. A factor that a reasonable person would consider to have
contributed to the harm.
ii. It must be more than a remote or trivial factor.
d. Toxic torts
i. Tests that courts have found necessary to find justice in situations
including poisons, chemicals, etc. (e.g. asbestos)
2. Iowa: McDonald v. Robinson (pedestrian struck after car accident, both drivers
jointly and severally liable. Accident couldnt have happened w/o both)
a. Multiple necessary cause
b. Court tried claims against both together, since if they were separate each
could individually point to the other as the cause.
3. Va.: Ford Motor Co. v. Boomer (asbestos from brakes were sufficient cause of
death, even with other causes. Harm = time of exposure, not injury appearance)
a. Multiple sufficient cause
b. [R(3d)T26]: Factual Cause
i. Conduct is a factual cause of harm when the harm would not have
occurred w/o the conduct. Can also be harm under 27
c. [R(3d)T27]: Multiple Sufficient Causes
i. If each cause would have been sufficient under 26 absent the
other acts, each is regarded as a factual cause of harm.
4. D.C.: Wannall v. Honeywell Intl (asbestos from brakes not a sufficient cause, as
there were 2 other causes, and all 3 together believed to have caused death)
a. Multiple necessary cause
b. All s must be tried together when it is MNC.
5. Restatement (2d) Torts
a. What Constitutes a Legal Cause:
i. 431-32s carelessness may be a substantial factor in bringing
about injury only if it is (i) non-trivial necessary condition for the
occurrence of s injury; or (ii) 1 of 2 or more simultaneous forces
each sufficient to bring about harm.
P. Causation Tortfeasor Identification
1. Cal.: Summers v. Tice (Quail hunting shotgun to face. Both shooters were negligent,
it does not matter which fired the pellet that actually hit)
a. Both s were joint and severally liable
b. Apportionment of liability not necessary; secondary to liability itself
2. Cal.: Sindell v. Abbott Labs (the drug DES was sold by many drug companies, caused
birth defects to Sindell and numerous others)

a. It does not matter which specific caused this specific injury when s act in
concert in a negligent manner, and that negligence caused injury
i. Industry-wide liability
b. Court would find liable even if none of the specific s before the court
caused s specific injury. caused like injury to a class belongs to.
i. s have incentive to find who did it and bring them in as 3PD
Q. Proximate Cause
1. Wagon Mound 1 (wharf fire caused by leaking oil from ship)
a. Established foreseeability test: Could have foreseen the injury?
b. Moved away from remoteness test: How far was s action from injury?
2. Wagon Mound 2 (same fire, 3 ships were burned in it)
a. Established comparison b/w magnitude of harm and foreseeability
b. Real risks are foreseeable and ought to be guarded against
3. Tex.: Union Pump v. Allbritton (slipnfall after fire. Faulty equipment allowed the
injury to happen, but did not cause the injury)
a. Cause put event in place but didnt cause injury=but-for, not proximate
4. Eng.: Polemis (falling plank, explosion sunk a ship)
a. Increased risk of harm caused by negligence at point of harm is sufficient,
not just knowledge that negligence will cause harm
i. If it is reasonable there is a risk, ask whether the negligence
increased the risk, and not just caused the harm
5. Eng.: Jolley v. Sutton London Borough Council (boat fell on kid)
a. It was foreseeable that kids would play, not that the kids would do exactly
what they did to cause the exact harm, and that is sufficient
b. Heightened duty to child trespassers
i. Attractive nuisance need not arise from any foreseeable injury
c. Foreseeability can mean whatever you want
i. Some courts (& the Restatement) want to get away from it
d. How narrowly or broadly to interpret foreseeability?
i. Judges are less likely to defer to juries regarding proximate cause:
policy issue.
Some even believe judges should decide breach, too
6. N.Y.: Palsgraf v. Long Island R.R. (falling scale hits woman, chain of events, fireworks
in nondescript package) Expiration of the risk
a. Negligence in the air will not do
i. There must be some reasonable foreseeability between the action
and the ultimate injury caused. If there is no conceivable way to
expect the injury to happen, there is proximate cause
ii. Common Carrier: Heightened Duty of Care still limited by
foreseeability and for those actually in transit
b. (1) Natural order of consequences, (2) Directness, (3) Foreseeability, (4)
Risk rule: Is the harm w/in the risk posed by s conduct?
7. Comparison of Cardozo cases

a. [R(3d)T] does not agree with Cardozos ruling in Palsgraf. Whether to follow
it depends by state
b. Cardozo wrote both McPherson & Palsgraf, yet comes to different
i. McPherson: Buick could have foreseen an end-user, owed duty
ii. Palsgraf: LIRR could not have foreseen explosion, owed no duty
c. Cardozo also penned Wagner v. Intl Ry. (Man injured while searching for
cousin after cousin fell out of train, was liable for injuries because they
believed the rescue was necessary
i. Palsgraf carves out an exception to Intl Ry. if the rescue is careless
(and the rescuer is injured in the rescue)
R. Superseding Cause & Affirmative Duty
1. A special case of proximate cause
a. An intervening action does not always mean no proximate cause
b. Two forms of superseding cause:
i. Once you call 2 a superseding cause, no liability for 1
ii. Both 1 and 2 (and n) are liable (and apportioned %)
2. Timeline that might support superseding cause argument
T1: T2: T3:
is careless 3P acts indep. of 3P injures

3. Most criminal or illegal actions are superseding with some exceptions

4. Courts reach different results on Superseding cause: Pollard & Clark pp.356-57
a. Okla.: Pollard v. Oklahoma City Ry. (Boy stole explosives, was warned not to
play with them, injured self. Railway not liable because boys action
superseded any negligence on the part of Railway.)
b. Kan.: Clark v. E.I. Du Pont de Nemours Powder Co. (Boy stole glycerin, was
warned it was dangerous, injured self. Company liable because the boy was
able to steal it.)
c. Intent matters. One was mischievous, one didnt know any better
5. 3CCA: Port Authority of NYNJ v. Arcadian Corp. (Terrorists use fertilizer to create
bomb detonated at WTC. not liable because they should not have foreseen
criminal use of their product)
a. There were simple and cheap preventive measures could have taken, but
did not have a duty to perform such measures.
b. Intervening acts that do not flow from original act are not foreseeable
6. Ind.: Fast Eddies v. Hall (Sexual assault and murder of drunk woman after being
kicked out of a rowdy bar)
a. The criminal acts were not foreseeable by and thus had no duty.
7. Affirmative Duty: Even though there was a superseding cause and the injury was
done by the intervening actors doing and not s doing, nonetheless breached an
affirmative duty owed to to protect or rescue from that harm
S. Direct Cause
1. Minnesota Jury Instruction Guide on Direct Cause

a. Direct Cause is a cause that had a substantial part in bringing about injury
2. Minnesota Jury Instruction Guide on using Direct Cause instead of Proximate
a. A Direct Cause had a substantial part in bringing about the injury
i. Proximate cause is confusing to jurors. Synonymous w/Direct.
b. No Direct Cause when there is a Superseding Cause (Which exists when four
conditions are met):
i. Superseding Cause happened after the original negligence
ii. SC did not happen because of the negligence
iii. SC changed the natural course of events & made the result different
from what it would have been; and
iv. Original wrongdoer couldnt have reasonably anticipated this event
VIII. Negligence Per Se Violation of a statute as Fault rather than Evidence of Fault
A. [R(3d)T14]: An actor is negligent if, w/o excuse, he violates a statute that is designed to
protect against the type of accident the actors conduct causes, and if the accident victim is
in the class of persons the statute is designed to protect
1. [R(3d)T15) Excused violations:
a. Reasonable in light of childhood, disability, etc.
b. Exercise of reasonable care in attempting to follow the statute
c. Actor neither knows nor should know the circumstances that render the
statute applicable
d. Violation is due to confusing way the requirements are presented to the
e. Compliance would involve greater risk of physical harm to the actor or
others than noncompliance
2. Minnesota approach: Similar to restatement
a. violated a statute and s injury was within risks envisioned by legislative
body when enacting the statute
b. can rebut presumption of negligence by establishing act was excusable
3. Massachusetts approach: Evidence of Negligence
a. Violation of statute is evidence of negligence, not conclusive.
b. Jury may consider fact of violation along with totality of circumstances in
determining if acted negligently
B. N.Y. App Div: Dalal v. City of New York (man not wearing glasses hits pedestrian, court rules
driving without glasses is negligent because it relates to the operation & manner of driving,
whereas a drivers license refers to authority)
C. Wash: Bayne v. Todd Shipyards (truck driver unloading goods fell from platform w/o
guardrail as reqd by Wash. statute. Washington sees negligence per se when injuring act
meets the 4 requirements of Restatement 286)
D. [R(2d)T 286]: A regulation can determine negligence per se if its purpose is, either
exclusively or in part:
1. To protect a class of persons (one of which is involved in the claim)
2. To protect a particular interest invaded
3. To protect that interest from the kind of harm resulting

4. To protect that interest from the harm resulting from that hazard
E. Cal. Ct. App: Victor v. Hedges (injury from an accident involving an illegally parked car. The
statute was not designed to prevent this situation or injury from occurring and an ordinarily
prudent person in s position would not have foreseen an unforeseeable risk of harm to )
IX. Contributory Negligence and Comparative Fault
A. Contributory Negligence: OLD RULE
1. Any negligence by = NO RECOVERY (99% and 1% = no damages)
B. Last clear chance = whoever had the last chance to avoid the harm is the responsible party
1. A twist on contributory negligence
C. Comparative Fault/Comparative Negligence: Proportional
1. Often limited by Responsibility % cutoff. P cannot be >50% liable.
a. In Minnesota jury must be told what the cutoff % is
b. In Wisconsin jury cannot be told what the cutoff % is
2. 3 different ways to determine:
a. Divided Damages
i. Damages split evenly by negligent parties regardless of amount of
b. Pure Comparative Fault
i. If is 99% at fault they get 1% of damages, etc.
c. Modified Comparative Fault
i. If is 50% at fault or less, they can recover
D. Contributory Negligence Rules:
1. Pure Contributory Negligence: Any negligence = no damages
2. Last Clear Chance: Whoever had the last chance is liable. If , no dmg
3. Divided Damages: Split evenly by negligent parties regardless of liability
4. Pure Comparative Fault: % of damages assigned = Responsibility %
5. Modified Comparative Fault = Pure Comparative if not majority liable
X. Assumption of Risk
A. Express Assumption of the Risk by contract (exculpatory agreements)
1. Intersection of Contracts & Torts: At what point does the court allow a tort claim
with a contract?
2. Courts do not allow waiver of necessary services or of recklessness
3. Generally upheld by courts unless determined to be against public policy
B. Primary Implied Assumption of the Risk (No express agreement, but assumed risk by their
1. is not careless
a. No breach of a duty of care
2. Minnesota does not have this as an affirmative defense. The issue is all about
comparative negligence.
3. attends baseball game, is struck by ball. had primary assumption of the risk by
attending the baseball game
C. Secondary Implied Assumption of the Risk
1. could be careless

2. Murkier than primary. could be careless or negligent, decides to continue
anyway despite being aware of the carelessness
a. Third Restatement has subsumed this into comparative fault
3. Minnesota does not have jury instruction for this either. This is traditional
comparative negligence.
4. is aware of the risk imposed by s carelessness but proceeds anyway. had
secondary assumption of the risk
D. New York Hybrid Statute: Implied Assumption of Risk is a distinctive affirmative defense,
but is only a partial defense, and not a complete defense
1. s damages can be lower proportional to responsibility if either
a. Carelessly contributed to his own injury or
b. Assumed the risk of s negligence
E. SCOTUS: United States v. Reliable Transfer (Admiralty law. Overturned divided damages.
Damages allocated proportional to comparative degree of fault.)
F. Ohio Ct. of Claims: Hunt v. Ohio Dept. of Rehab & Correction (Inmate injured by
snowblower. Failure to use common sense and disregarding a potential hazard can bar
G. Colo.: Jones v. Dressel (Willful & wanton negligence in relation to injuries from a plane crash
during skydiving. Minor signed K with liability exemption clausethere was an alternative
for an extra fee. Since it is not an adhesion K [Jones did not have to take it or leave it] and
the services could be obtained elsewhere.
1. 4 factors for if waiver is invalid:
a. Is there an existence of duty?
b. Is this a service to the public?
c. Is the K fairly entered?
d. Are the intentions unambiguous?
H. Vermont: Dalury v. S-K-I Ltd. ( skied into a metal pole after signing liability release form.
Unenforceable as a matter of law violates public policy. Broad waivers would remove
incentive for ski areas to manage risk on their property, land owners & businesses are better
positioned to ensure safety)
I. 3CCA: Smollett v. Skayting Dev. Corp. (Virgin Islands comparative negligence statute:
assumption of risk only applies to non-negligent conduct. was not careless, so it applies. If
she had been careless she would have won. An individual can assume the risk of injury if
they are aware of the risk and continue their conduct despite such risk)
XI. Compensatory Damages
A. Focus is on recovery alone, not anything about . Egregiousness of wrongdoing does not
1. Mitigation: is injured and waits to go to doctor.
a. is not liable for damage caused by waiting
b. is liable for not mitigating damages by waiting
c. Minnesota carves out exceptions for religious reasons to decline blood
transfusions & other procedures: Based on what a reasonable person of
that religion would do
d. New York does not carve out exceptions for religious reasons

B. State Statutes:
1. Minnesota Stat. 604.01 1: Contributory fault of must be less than that of ,
damages are reduced proportionally
a. Multiple s: If has a greater contributory fault than any , cannot
recover from that
2. Massachusetts Comparative Negligence Jury Instruction: Contributory fault of
must be less than that of , s damages will be reduced by the amount of s own
C. Liability: relationship b/w , , and type of wrong.
1. Extent of harm does not impact liability.
D. Types of Loss
1. Economic Loss
a. Medical Bills
b. Lost Earnings
2. Non-economic Loss
a. Pain & Suffering
i. Depression
ii. Anxiety
b. Loss of enjoyment of life
c. Where the rubber meets the roadhow can you quantify? Soft damages.
How can you quantify?
d. Hard for to argue againstit looks like youre attacking
i. wants to argue liability and not even get to damages
E. [R(3d)T29]: Limitations on Liability
1. Liability is limited to those harms that result from risks that made conduct tortious
F. [R(3d)T31]: Preexisting Conditions and Unforeseeable Harm
1. Physical or Mental Condition or Other Characteristics
2. An actor of tortious conduct that causes harm that is of greater magnitude or
different type than might reasonably be expected due to such characteristics is
nevertheless subject to liability for all such harm to the injured party.
G. Vosburg ruling allows recovery for unforeseeable harm but Wagon Mound does not. What is
the difference?
1. Vosburg: Eggshell for single cause of intentional tort
2. Wagon Mound: Scope of risk for multiple necessary cause of negligence
H. Eng.: Smith v. Leech Brain & Co. (foundry worker peered around screen, got molten metal
on his lip. Died of cancer. Widow sues for damages.)
1. Contributory Negligence: Smith was not contributory. It is natural for man to want
to know what hes doing. Other galvanizers had safety boxes to allow their workers
to do this.
2. But-for cause: The burn was shown to be an actual cause of the cancer
3. Eggshell : needed to anticipate that would peer over and could get burned, not
that he would develop cancer and die from it.

4. Different from Wagon Mound because: Wagon Mound didnt have Eggshell .
Leech Brain wasnt about whether harm was caused, it was about the extent of
I. Missouri: Kenton v. Hyatt Hotels (Skyway collapse injured . Compensatory damages
allowed include: Medical expenses, employment limitations, life expectancy.)
XII. Punitive Damages
A. Burden of Proof is on to show acted wantonly, willfully, or recklessly toward
B. Deterrence & Retribution
1. Some argue its too close to criminal lawits punishment!
a. Nebraska has no punitive damages
b. Other states have limits on punitive damages
c. Often there are caps on Medical Malpractice
i. We want to encourage doctors to practice!
d. Is the purpose to send a message to one entity in order to send a message
to everyone else?
i. Can seem unfair to punish one party for the actions of an entire
class or industry
C. Minnesota Punitive Damages Laws
1. MN Stat. 549.20 Punitive Damages
2. MN Statute about measuring conduct
a. Wanton & Willful
b. Negligent
3. MN Statute about net worth of
D. Bifurcation: Separate decision for compensatory & punitive damages
E. Ark.: National-By-Products v. Searcy House Moving Co. ($100K punitive to each . Foley
sped and ignored warnings while driving truck however there is no evidence that he or
Natl-By-Prd were negligent. Punitive damages are only awarded when the evidence
indicates acted wantonly in causing the injury or w/ such conscious indifference to the
consequences that malice can be inferred
F. 7CCA: Matthias v. Accor Economy Lodging, Inc. (Bedbugs. Hotel knew about it and could
have spent small amount to eliminate them but didnt. Rented out rooms known to have
serious bedbug problem. Reckless and unjustifiable failure to avoid a known risk)
1. Award not excessive. If limits are imposed, may not be able to finance the suit.
Court wants to encourage policing this, even if the dollar amount for
compensatory damages is small.
G. [R(2d)T909]: Knowledge of the risk & failure to take effective steps either to eliminate it
or to warn the motels guests are transferred to his employer for purposes of determining
whether the employer should be liable for punitive damages
H. [R(2d)T500]: Willful Blindnessreckless indifference when unreasonable conduct poses
a grave danger of harm to others when has reason to know of dangers
XIII. Vicarious Liability
A. Primary form of vicarious liability: Respondeat Superior
1. Independent Contractors: No employment relationship = no vicarious liability
a. What qualifies as an Independent Contractor?

i. Set your own schedule
ii. Low amount of supervision
iii. Ability to work for several companies
iv. Pay by hour or salary
v. Level of skill required
b. Non-delegable duties: Employer can be liable for Independent Contractor
i. Work is dangerous (construction, dynamite use, etc.)
ii. Government services (prisons, police)
iii. Apparent Authority Doctrine: e.g. Hospitals are liable for the actions
of doctors, even if most are independent contractors
iv. Incentivizes quality monitoring, disincentivizes limiting liability by
contracting out work
B. Other forms also appear in some states
1. Car owner liability (when another person is driving it)
2. Agent acting for principal outside of employment
C. Employee vs. Employer liability
1. Employee is liable for the tort itself
2. Employer is liable in the scope of employment
D. Extent of Vicarious Liability
1. Detours do fall under vicarious liability
2. Longer or larger deviations do not fall under vicarious liability
E. 2CCA: Taber v. Maine (Guam: Drunk sailors car collided with anothers. Trial court found
liable for negligence but ruled no Respondeat Superior because he was on leave. Court
reversesexpansive reading of RS based on Cali law. Excessive drinking is customary in the
XIV. Trespass: A tort liability without fault (in the sense of carelessness)
A. Strict Liability intent to touch land or substantially certain trespasser knew, not any intent
to harm
1. Trespass can occur on, above, or below land
B. Trespass to Land
1. An actor physically invades or causes a physical invasion of, or remains present on
land lawfully possessed by another
a. Refusal to leave if consent is revoked or failure to remove an object from
anothers property is trespass even if initial act wasnt tortious
2. It is immaterial to the issue of liability whether the actor who caused the invasion
took reasonable care to prevent it
3. Tangibility of trespass
a. Odors almost never successful under trespass (nuisance)
b. Soot, pesticides, things that settle courts are split
C. Prima Facie Case:
1. has exclusive possession of the land
2. must intentionally intrude (cause physical invasion) on the land or intend to act
w/substantial certainty that the act will cause an intrusion

3. Intrusion must be unauthorized
4. is liable w/o establishing actual damages
a. Actual harm not necessary, but it does affect compensatory damages.
b. Punitive damages are also available because without them there would be
no incentive to respect property rights
D. 7CCA: Burns Philp Food v. Cavalea Contl Freight (Fence improperly placed on s land.
When mistake is discovered, rips it up. sues for tax mispayments, counterclaims
trespass due to misplaced fence. is entitled to damages if he suffered a monetary loss
from s fence)
E. Trespass & Necessity Is necessity a complete or partial defense?
1. Private vs. Public necessity
a. Private necessity: You didnt do a wrong but something happened so you
need to pay damages
b. Public necessity: You did a wrong and the public is harmed so you must pay
F. Minn.: Vincent v. Lake Erie Transp. Co. (Negligence regarding a boat damaging a dock in a
storm. tried to get out but couldnt leave safely. Necessity was only a partial defense.
Intentional contact/trespass to preserve s property at expense of s property. is
entitled to the defense, but must still payA qualified defense.)
G. Vermont: Ploof v. Putnam (s vessel in distress moored at a dock w/o permission.
unmoored the vessel. was not guilty of trespass, and was responsible for damages since
acted under necessity and, if damaged s dock would be liable for it.)
1. If necessity defense to trespass but property owner refuses the exercise of it,
Property owner is liable for damages.
H. Consent is only a defense if the victim had all the necessary facts
1. Express consent: explicitly stated
2. Implied consent: Implicit in the context of the situation, statement, or actions
I. Media trespass Strict liability
1. Invasion of privacy
a. Much harder to bring this type of case
b. Public figures are fair game
i. In Cali, taking a picture of someone on their property is trespass
ii. Wyoming: Illegal to take photos of cattle grazing on federal land
XV. Nuisance
A. Question of if s loss of enjoyment of property is reasonable. No law need be violated.
B. Injunction is often sought: Equitable, so decided by Judge, not Jury. [R(2d)T936] Standard
for Granting Injunctions:
1. Nature of interest to be protected
2. Adequacy of other defenses (such as damages)
3. Any delay in bringing suit
4. Misconduct by
5. Hardships to parties if granted or not
6. Enforceability of injunction
C. Private Nuisance

1. must have interest in the property
a. Intentional & unreasonable (measured by impact to ) or unintentional &
b. must invade s enjoyment & use of land resulting in significant harm
D. Public Nuisance
1. The focus of our cases. Oil spills, health & safety; junkyards, adult bookstore
2. St. Paul ethanol plant smelled bad in a residential area
3. Gun manufacturers (until Congress shut that down)
4. Professor Klass favorite tort because its so flexible
E. [R(2d)T821B] Unreasonableness: Gravity of harm to vs. utility of s conduct
1. This is referred to as balancing
2. Minnesota does not follow the Restatement for Nuisance: only considers:
a. Reasonableness of harm to
i. Not all courts follow balancing. Harm can be unreasonable even if
s conduct is reasonable
b. Location (e.g. Zoning)
F. Public nuisance is usually brought by a government on behalf of citizens, but it can also be a
member of the public with special damages different from everyone else (e.g. a fisherman
in a river that has been dirtied)
1. Property related tort by no need for physical invasion
2. Smells, noise, dust, anything that can lower property values
3. Courts are hesitant to find nuisance in cases against public interest (e.g. People with
AIDS moved next door and property values dropped) because of history of racism
and discrimination
G. Eng.: Sturges v. Bridgman ( Confectioners mortar too loud for neighbor Doctor after
built a new room adjacent to s building. created the situation that allowed the nuisance
to occur, but still must cease operation. cannot be limited in use of property because s
actions would then be a nuisance.)
1. Coming to the nuisanceChanging your action to create the nuisance (produced
by another party) Courts disagree if this is acceptable
2. Right to Farm laws: Farms smell. You cant sue for nuisance if you move to an
agricultural area.
a. MN has an exception to Right to Farm for farms that are too large
b. IA had a Right to Farm law but then ruled it unconstitutional
H. Coasean AnalysisRonald Coase determines value of nuisance based on social cost
1. Reciprocal causation and entitlements s action is a nuisance to , but how does
s demands affect ?
I. Ore.: Penland v. Redwood Sanitary Sewer (Sewage facility opened near residential area
making residents sick. Court developed the Penland test for whether a thing is
unreasonably a nuisance:
1. The location of the claimed nuisance e
2. The character of the neighborhood
3. The nature of the thing complained of
4. The frequency of the intrusion

5. The effect upon s enjoyment of life, health, and property
Whether a condition constitutes a nuisance depends on its effect on an
ordinary reasonable person, a normal person of ordinary habits and
J. N.Y.: Boomer v. Atlantic Cement (Dirt, smoke, vibrations emanating from cement plant
disrupting nearby residents. The value of damage to s property is relatively small to the
value of s operation, so no injunction. The court awards permanent damages.)
1. Court ruled if you have the funds you can harm the environment & bother people.
Permanent damages means owners are compensated for permanently lowered
property values. Can choose to leave or deal with the nuisance. Any future owners
will have already had the nuisance factored into property values.
K. Minn.: Johnson v. Paynesville Farmers (Trespass, nuisance, and negligence per se regarding
sprayed pesticides drifting into organic farm fields.
1. Trespass: Fail as a matter of law. MN does not recognize trespass of particulate
matter. Damages are irrelevant to a trespass claim.
2. Nuisance: claim could survive summary judgment
L. Injunctive Relief v. Damages: Judge Calabresi delineates them based on types of rule
1. Property Rule: Injunctive Relief
2. Liability Rule: Damages
3. Balancing of factors to meet injunctions standard, but if has liability, can get
damages. E.g. Injunction is inadvisable in Boomer because its a large class of s that
would make it difficult to reach a negotiated settlement
M. Spur v. Del Webb
1. Del Webb built residential property next to Spur feed lot, which was smelly. Del
Webb sued in equity to stop Spurs business. got the injunction on , but had to
pay damages to because the court is irritated Del Webb caused the problem while
acknowledging the property use had changed.
XVI. Strict Liability of Abnormally Dangerous Activities
A. Do not need to prove Intent or Breach of a duty of care
1. Guilty regardless of acting recklessly or not.
B. Prima Facie case
1. s actions were a proximate cause of s injury
2. Subject matter of actions are determined to be abnormally dangerous
C. [R(2d)T519]: One who carries on an abnormally dangerous activity is subject to liability for
harm to the person or property of another resulting from the activity, although he has
exercised the utmost care to prevent the harm
D. [R(2d)T520]: Definition of Abnormally Dangerous Activities (First 3 Factors are the most important)
1. (a) existence of high degree of risk of harm to person, land or chattels of others;
2. (b) likelihood that the harm that results from it will be great;
3. (c) inability to eliminate the risk by the exercise of reasonable care;
a. Many courts read significantly reduce the risk
4. (d) extent to which the activity is not a matter of common usage;
5. (e) inappropriateness of the activity to the place where it is carried on; and
6. (f) extent its value to the community is outweighed by its dangerous attributes.

E. [R(2d)T522]: One carrying out abnormally dangerous activity is subject to strict liability
even if caused by unexpectable, innocent, negligent, or reckless conduct of a 3d party
F. Eng.: Rylands v. Fletcher (s mines flooded due to neighbor s reservoir. Non-natural use
of land is held to strict liability. Reservoir in wet, rainy England is non-natural. In Texas, oil
reserves are a natural use of land. Its all about context.)
1. Minnesota and many jurisdictions in US use Rylands more than the Restatement
2. Rylands is broader than the Restatement
G. Wash.: Klein v. Pyrodyne Corp (Firework mortar fell over and burned guy watching. Firework
displays are abnormally dangerous activity, even if we expect them at 7/4. Fireworks fulfill 4
of 6 factors of Restatement test. First 3 are the most important.)
1. Strict liability is important here because the evidence explodes.
H. Absolute Liability: Applies to insurers. No proximate cause
1. Foster v. Preston Mills: Insurer of dynamite manufacturer is liable for foreseen
damages but not for a mink eating her babies when startled by blasts
XVII. Products Liability Need to prove defect & proximate cause
A. The focus is on the product, not the defendant!
1. Defect! If is seller and is injured, is liable even if extremely careful.
B. Prima Facie case:
1. suffered injury
2. sold product and is a commercial seller
3. Product was defective when sold
4. Defect was proximate cause of s injury
C. [R(2d)402A]: Unreasonably dangerous defect w/o condition change from sale to injury
D. [R(3d)1]: Seller liable for harm caused by defect
E. [R(3d)2]:Product is defective when there is a manufacturing defect, design defect, or there
is inadequate instruction or warning
1. 2(a): manufacturing defect when product departs from intended design even
though all possible care was exercised
2. 2(b): design defect when foreseeable risks of harm posed by product could have
been reduced by adoption of a reasonable alternative design, and omission of
alternative design renders product reasonably unsafe
3. 2(c): inadequate instructions or warnings when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the provision of reasonable
instructions or warnings, and the omission of the instructions or warnings renders
the product not reasonably safe
4. If risk could have been reduced or avoided But what if it cant be? Not so strict
liability anymore
a. Bringing s conduct back into it a little bit, but focus is still on product
F. [R(3d)3]: Circumstantial Evidence Supporting Inference of Product Defect
1. Without specific proof of defect Exactly like Res Ipsa Loquitur
a. Incident that harmed
b. Ordinarily caused by such defect
c. Was not caused by (as a sole cause) something other than the defect
2. Injury Just like injury in negligence:

a. No economic loss unless included with some physical injury (even just a
little physical injury with a big economic loss)
i. Consequential Economic Loss
3. Product Definition of product (covers the entire transaction)
a. Not property or homes (although mobile homes are products)
b. Live animals or body parts are not products
c. Textual material (books, encyclopedias, magazines) are not products
d. Electricity is not a product
4. Seller What constitutes a seller
a. Manufacturer, distributer, retailer, just about anyone in the commercial
chain of distribution
b. The focus is on the seller, not the buyer. If it is a retailer, it doesnt matter if
you bought it or not.
5. Types of Product Liability
a. Design flaw: Gas tank in Ford Pinto
b. Manufacturing defect: Flaw in Coke bottle (Escola v. Coca-cola)
c. Failure to warn: Inadequate warning
G. Cali.: Escola v. Coca-Cola Bottling (Bottle explodes in waitress hands. Court finds grounds for
res ipsa loquitur. In concurrence, Traynor lays ground for Product Liability)
H. Cali.: Greenman v. Yuba Power Products (Lathe propels wood into mans forehead. Traynor
elevates Product Liability to law, Restatement soon adopts it.)
I. E.D.Pa.: Gower v. Savage Arms (Inadvertent discharge of hunting rifle into foot. Claims of
design defects, manufacturing defect, and failure to warn. Court finds manufacturing defect
and thus strict liability. Court does not find design defect in unloaded mechanism because
was not unloading (moot), no design defect in detent system since it would only make it
more user friendly, no failure to warn by because they did ship a manual that was not
given to by the store)
J. N.Y.: Chow v. Reckitt & Colman, Inc. (Lye splash in faceUtility Test. The standard is not
whether a products is dangerous but whether its dangers are well known)
1. Wade factors relevant to Risk-Utility Test measures the products:
a. Utility to the Public
b. Utility to the Individual User
c. Likelihood the Product will cause Injury
d. Availability of a Safer Design
e. Possibility of Designing Product Safer but Maintain Functionality &
Reasonable Price
f. Degree of awareness of potential danger that reasonably can be attributed
to the injured user
g. Manufacturers ability to spread the cost
K. Risk Utility Test (Wade Test)^^ Above
1. If can prove the risks are so high & utility so law, it does not have to prove an
alternative design. It is a manifestly unreasonable product
L. Consumer Expectation Test (Not used as often)
1. Explicitly rejected by [R(3d)T]

2. A product is defective if a reasonable consumer would find it defective
M. Failure to Warn
1. Anderson v. Owens-Corning (Asbestos Failure to Warn)
a. Whether or not the risk was known or knowable based on scientific
knowledge available at the time of manufacture and/or distribution.
b. Not concerned with whether or not there was a duty
c. But we do care if the risks were knowable. Different from negligence!
N. Causation
1. Proving causation in failure to warn cases
2. There is a presumption would have heeded the warning unless can prove
3. Motus v. Pfizer (Suicide from medication)
a. Doctor not warned about risk of suicide. Case dismissed because doctor
admitted he would not have acted any differently if he had been warned.
XVIII. Insurance
A. Interinsurance Auto Club v. Flores (Drive-by. Victim sues insurance of driverafter all, it
happened from a car): Declaratory relief action
1. This is different from drunk driving (not willful disregard). This was planned.
a. Doesnt matter that he wasnt the one shooting. He was driving and knew it
would happen. Recklessness can still be willful.
2. Insurance covers negligent acts, not intentional ones
a. This did not arise out of ownership. Maintenance, or use of vehicle
B. Insurance can cover third parties: Like a victim
1. Insurer, Insured, Third Party
C. Insurance has two duties
1. Duty to indemnify
a. Insurer promises to pay for damages insured is liable for
2. Duty to defend
a. Insurer promises to defend insured in a lawsuit