1L Torts Outline

Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability

Intentional torts: fault based torts (fault is required)

Development of Liability based upon Fault

  1. Need some finding of fault to impose liability.
    1. If the D did not intend to fire the musket, there may be some circumstances where he is not liable (still liable for intention, whether the intention was to fire musket or to injure someone: mistake)
  2. Burden of proof on plaintiff – to establish the elements of the cause of action – what is required (Plaintiff is seeking to disturb the status quo. If making claims, he is required to est. burden of proof).
  3. If it appears that the defendant was doing a lawful act, and unintentionally hit & hurt the plaintiff, the plaintiff fails to sustain the burden of proof and is not entitled to recover.
  4. No actionable negligence prior to the time the car left the road, or causing or contributing to that occurrence, and the loss of control was due to defendant’s sudden illness, it follows the action of the lower court was right
  5. An individual is not liable for negligence if the he suffers an unexpected illness or outside attack at time of a car accident (unavoidable car accident).

Intentional Interference with Person or Property

  1. Proof of intent to move chair is not enough to be liable, but needs to also have the intent to bring about the consequences to be liable (purposeful intent)
  2. Had reckless intent to bring about consequences. Did act knowing & understanding what the consequences could possibly be (implied intent)
  3. If D had such knowledge the necessary intent will be established and P will be entitled to recover, even though there was no purpose to injure or embarrass P. If D did not have such knowledge, there is no wrongful act by him & the basic premise of liability on the theory of battery is not est.
  4. A child be is liable for assault & battery if he had intent and could potentially foresee harm (intent) but still committed an act that caused harm.
  5. Assault & battery: not negligence b/c such an action is intentional, while negligence connotes an unintentional act.
  6. Assault: where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it (intentional).
  7. An individual is not liable for assault & battery if he causes harm to another without any awareness that the act could lead to potential resulting harm.
  8. Unavoidable accident: Result is not intended by D at time he acted & no negligence on part of D
  9. Mistake: Result is intended at time act was committed, but D claims to have acted under erroneous but reasonable belief that would have explained the conduct. Didn’t intend exactly what happened
  10. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith.
  11. Where an insane person by his act does intentional damage to the person or property is liable \for that damage in the same circumstances in which a normal person would be liable.
  12. Mistake:
    1. Result was intended. I intended harm to the animal I shot at.
    2. D lacked wrongful intent
  13. Transferred intent:
    1. Result was not intended. Result of injuring THIS P was not intended.
    2. D did have a wrongful intent
  14. “An individual is not liable for trespass if he intends only to do an act to frighten another individual, and, in the process, causes unwarranted injury upon him.” This sounds a lot like assault but ct says it would be okay
  15. An individual is liable for trespass if he intends to injure one person and subsequently causes unwarranted injury upon another person (transferred intent).
  16. An individual is not liable for trespass if he intends only to do an act to frighten another individual, and, in the process, causes unwarranted injury upon him.
  17. An individual is not liable for trespass if an intentional act is reasonable and not with excessive force but results in injury to another.


  1. Evidence in trespass for assault& battery (stresses intent of D):
  1. That the least touching of another in anger is battery.
  2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently it will be no battery.
  3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is battery; or any struggle about the passage, to that degree as may do hurt, is a battery.


  1. Intent to make an offensive contact is considered sufficiently wrongful intent for battery even if did not intend harmful contact. Protect ppl not just from harmful but offensive contact (Restatement of Torts p33)
    1. If intend offensive or harmful contact & act upon it then req. intent for battery
  1. Not enough to view contact as offensive but D must intend contact to be harmful or offensive & P suffered either a harmful or offensive contact. Did not meet both criteria to go to jury for instruction
  2. In a “crowded world,” some contact is expected & inevitable and should not be viewed as assault if a person lacks intent.
  3. Restatement (Second) of Torts (1965)
  • Battery: Harmful Contact
    • “An actor is subject to liability to another for battery if…
    • He acts intending to cause a harmful or offensive contact
    • A harmful contact with the person of the other directly or indirectly results.
  • Battery: Offensive contact
    • “An actor is subject to liability to another for battery if…
    • He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or imminent apprehension of such a contact
    • An offensive contact with the person of the other directly or indirectly results
  • Actor not liable to the other for a mere offensive contact with the other person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
  • Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting.


  1. A plaintiff can recover damages for assault for intentional infliction of emotional distress.
  2. Assault protects from offensive or harmful contact. Just as with battery – entitled to protection of bodily integrity, assault protects mental integrity & apprehension of offensive or harmful contact.
  3. Assault: Intentional act by D to create in the mind of P the belief that he is about to be battered.
    1. D has present, apparent ability to make contact.
    2. Words alone unaccompanied by deeds does not constitute assault. Must be some action on part of D with threat of contact being imminent
  4. Assault gives protection for any attempted battery that produces any mental apprehension of any harmful or offensive contact. Mental tranquility is paramount just like bodily integrity is paramount of battery. But words alone will not constitute assault
  5. To constitute an actionable assault, there must be an intentional, unlawful offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault an ill-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.
  6. An assault does not necessarily require a battery to complete it.

False Imprisonment

  1. False imprisonment: act done by D with intent to restraint P of physical liberty & achieving that w/o legal justification. Have to have an intent as well as an action
    1. Intent to restrain
    2. Achieves that result
  1. An individual is able to recover exemplary damages for false imprisonment if the act causing actual damage is wrongful and done intentionally in violation of the rights of P.
  2. How is battery & fi alike (p29)? Battery & fi are two of five torts that fall under old writ of trespass. Actual injury is not required – P was confined, detained, deprived of liberty even if he wasn’t aware of it – argument to ct in boarding school case
  3. Restatement: fi to have occurred, P must either know of the confinement or be harmed by it. Threat of future action does not constitute fi
  4. An individual is still liable for false imprisonment even if the imprisoned person doesn’t remember the imprisonment.
  5. Threat of future action does not constitute fi
  6. Two key elements of false imprisonment are:
    1. The restraint of an individual against his will
    2. The unlawfulness of such restraint. The individual may be restrained by acts or merely by words which he fears to disregard.
  7. False arrest occurred when he took her in and claimed to have authority but did not; i.e., f.i. arises when one is taken into custody by a person who claims but does not have proper legal authority to take her in
  8. Using a third party to determine someone’s imprisonment and subsequently detaining her after agreeing not to do so is a breech of duty and is considered false imprisonment.

Intentional Infliction of Emotional Distress

  1. If the conduct of the defendant is intended to cause emotional distress regardless of if physical harm ensued, and it can be clearly shown that the plaintiff did indeed suffered mentally, then the defendant is liable (a) for such emotional distress, and (b) for any bodily harm resulting from it.
Insult D’s intent P suffers Liability?
Insult Mere Mere No
Slocum Mere Severe No
Siliznoff Severe Severe Yes
Harris Severe Mere No
  1. No other tort do you need to prove severe injury v just some injury
  2. Four elements must coalesce to impose liability for intentional infliction of emotional distress:
    1. The conduct must be intentional or reckless
    2. The conduct must be extreme and outrageous
    3. There must be a causal connection between the wrongful conduct and the emotional distress
    4. The emotional distress must be severe.
  3. A plaintiff may not recover for intentional infliction of emotional distress if all four elements of the emotional distress test are not met.
  4. Presence requirement to limit liability by coming up with bright line test, need 2 criteria
    1. P must be present at scene
    2. D must know of P’s presence and intended activities to injure P
  5. Focus is on what D knew, not what an objective person would know. Knowledge of D, not reasonable person
  6. Analyzes caselaw with Siliznoff – “cause of action is est. when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.”
  7. In order for a person to recover damages for emotional distress, D’s conduct must not only be intentional and outrageous, but also directed at the P or take place in the presence of P, with D’s awareness.

Trespass to Land

  1. An individual can recover damages for trespass simply for one’s mistaken entry onto his land without causing any significant damages.
  2. A person is eligible to recover damages for trespass if an individual does not physically enter his land but fires a gun onto that person’s land.
  3. An individual can recover for trespass for another’s negligence in completely following through with an agreement, which results in an injury and death to another.

Trespass to Chattels

  1. For a living chattel, harm is caused to it by injury
    1. Note 5 p77
  3. Harmless intermeddling with chattel – no tort, minor interference with chattel – trespass to chattel, major interference with chattel – conversion & recover full value of chattel
  4. Trespass of chattels cannot be maintained if no injury was caused.
  5. An individual can recover damages for trespass to chattels if no physical damage or harm occurs but value of property is diminished.


  1. Most distinctive feature of conversion is its measure of damages, which is the value of goods converted. The theory is that the converting defendant has in some way treated the goods as if they were his own, so that P can properly ask the ct to decree a forced sale of the property from the rightful possessor to the converter.
  2. Difference b/w conversion & trespass to chattels: the measure of damages in trespass is not the whole value of the property interfered with, but rather the actual diminution in its value caused by the interference. A judgment for conversion can be obtained with only nominal damages, whereas liability for trespass to chattels exists only on a showing of actual damage to the property interfered with.
  3. An individual cannot be awarded damages for conversion for exposure of personal documents if no actual physical damage occurs and the individual was not substantially deprived of his use of them.


  • No tort is committed if P consents


  1. An individual cannot be held liable for assault or negligence for engaging in an activity against the other’s will if that person makes no overt protest to indicate her lack of consent.
  2. An individual is still held liable if during a regular season professional football game, he intentionally inflicts an injury to an opposing player during a game. Must take surrounding circumstances into account
  3. D’s act amounted at least to a technical assault & battery. If the operation was performed without P’s consent, & the circumstances were not such as to justify its performance without, it was wrongful; and, if it was wrongful, it was unlawful.
  4. Intent doesn’t matter like it does in a criminal case, it was still a wrongful and unlawful action.
  5. D’s argument: Manifested consent – custom – 99% of people would be okay with operation – then ok to do it?
  6. A Dr. can be held liable for assault & battery if he performs a successful operation without the patient’s consent and it was not an emergency.
  7. A Dr. who brings in a stranger during a medical procedure is liable for assault if the stranger sees and hears what is going on and the P does not know of his true identity. The stranger is also liable.
    1. Right to privacy – would be an “invasion of privacy” tort if the case arose today

Self Defense

  • Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another. It always has been an affirmative defense to be pleaded and proved by D.

Defense of Others

  • A privilege similar to that of self-defense is recognized for the defense of third persons. Most of the cases have involved members of the same family defending on another.

Defense of Property

  1. An owner who protects his personal property in an unoccupied location against trespassers and thieves by a spring gun capable of inflicting death or serious injury is liable for damages from any ensuing injuries to trespassers. It is unlawful to protect property with a spring gun.
  2. Restatement of Torts sec 85, 180: “The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land…”

Recovery of Property

  1. An individual has a right to retake property fraudulently obtained from him if it can be done without unnecessary violence or without breach of the peace.
  2. 3 categories
    1. Acquirer takes it by force – yes, privilege to recover property – unlawful transfer of possession
    2. Acquired by fraud – yes, privilege – unlawful transfer of possession
    3. End of lease – no privilege – originally acquired lawfully
  3. If an individual reasonably believes a person has unlawfully taken good held for sale in the individual’s store, then he is privileged to detain her for a reasonable investigation of the facts.


  1. Distinction b/w taking property for public use (Vincent case) & taking of property b/c of the harm it imposed to the public – it was a public nuisance.
  2. An individual cannot be held personally liable for destroying the house of another, in good faith, and under the necessity of stopping the spread of a fire and saving the buildings adjacent.


  1. An individual entrusted with caring for children will not be held liable for false imprisonment for taking measures of holding the children in order to protect public property or the children.
  2. Imp for illustrating principle that if D conduct doesn’t fit into nice neat category, ct looks at totality of situation to see if justified. Overall look at case
  3. Case is a catch all for other types of privileges not in specific categories

Strict liability: fault not required

Development of Liability based upon Fault

Fault: departure from conduct that is normally expected of society that is wrongful to others

  • Blameworthy; wrongful act. DIFFERENT FROM…
  • Liability: just whether a person is responsible
  • Cause: producing harm. Causation: whether activity produced harm
  1. Factors to consider for strict liability
    1. Abnormally dangerous activity – Yes
    2. Physical invasion of premises – No
    3. Need abnormally dangerous activity for strict liability, no s.l.
  2. Not whether it was lawful or proper to engage in blasting, but who should bear the cost of any resulting damage – the person who engaged in the dangerous activity or the innocent neighbor injured thereby.


  1. Public necessity may require the taking of private property for public purposes; but compensation must be made.


  • Negligence: the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.
  • The D might have been liable for negligence, if unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.

Elements of Cause of Action

  • A cause of action for negligence requires more than negligent conduct. The traditional formula for the elements necessary to the cause of action includes the following 4 basic elements: first three are elements of all torts:
    • A duty to use reasonable care.
    • Breach of duty: failure to conform to the required standard
    • Causation: a reasonably close casual connection between the conduct and the resulting injury.
      • Involves a combination of two elements – causation in fact and legal or “proximate” causation.
    • Actual lose or damage resulting to the interests of another (is a prerequisite).
      • Developed chiefly out of the old form of action on the case; and it retained the rule of that action that pleading and proof of damage was an essential part of the P’s case.
      • If D’s risk-creating negligent conduct threatens but does not harm P, however, he may be able to obtain an injunction and stop the activity as a “nuisance.”
  • Just ordinary negligence: no punitive damages, only compensatory damages
  • Another commonly used rubric for negligence is conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm.
  • Most of the cases here involve the allegedly negligent conduct of the D from whom the P is seeking compensatory damages. Sometimes, however, it is the P’s conduct that is being measured against the standard of the reasonable person because the D has pled the affirmative defense of contributory negligence: the D is claiming the P’s conduct was negligent and that the P’s negligent conduct also contributed to the cause of P’s injuries.

A Negligence Formula

  • An individual is not liable for negligence for leaving out a non-dangerous object that could be used by someone and could cause harm.
  • An individual who takes the proper precautions a reasonable person would will not be liable for negligence even if his actions still somehow accidentally cause damage to another’s property.
  • Has to be a real chance of something occurring. Reasonable person in D’s position should have and would have anticipated the result. Still greater than a remote possibility and risk of harm should have been anticipated.
  • An individual is liable for negligence for an injury where there was a likelihood of injury from negligent actions.
  • Formula for deciding negligence: Liability for negligence depends upon whether the burden of taking precautions is less than the possibility of injury multiplied by the gravity of the injury
    • If B <P x G – then, D, who fails to take precaution, will be negligent
  • Another party can be held partially liable if they are partially involved in negligence for an action the led to damage that they did not commence.
  • An owner is guilty of negligence if he omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe.
  • The business of life is better carried forward by the use of dangerous machinery; hence the public good demands its use, although occasionally such use results in the loss of life or limb. It does so because the danger is insignificant, when weighed against the benefits resulting from the use of such machinery and for the same reason demands its reasonable, most effective, and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger anticipated from it.
  • In all cases of this kind in determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular facts in each case. But in every case they should be such as a man of ordinary care and prudence would observe under like circumstances. If, under all the circumstances, the owner omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe, he is guilty of negligence.

The Standard of Care

The Reasonable Prudent Person

  • Ask in deciding negligence cases what a reasonable person would do.
  • If has extra knowledge, will be held accountable to extra knowledge standard
  • Not enough to claim you didn’t know. You are expected to know as any other reasonable person would.
  • An individual should be held to a reasonable person test for matters of common knowledge.
  • If there is a custom, then obligation on part of person engaged in activity to meet level of safety of custom b/c may = what a reasonable, prudent person would do. Customary standard is often equated with reasonable person standard BUT not always. In this case, customary way of doing something was inadequate. Proof of a custom does not allow you to ignore the proper safety – the community standard. Mere fact of custom does not detract from standard
  • Non-conformity of custom is strong evidence of negligence unless individual is taking more can than the custom
  • A company is liable for negligence for not taking the proper steps required to make sure a product they manufacture is safe, even if it is not customary to do so.
  • Advantage to using customary standard:
  • Custom shows no far-reaching effects if liability imposed on D who failed to conform or if custom = due care
  • Customary way of doing things is practical. Evidence of custom bears directly on feasibility. Proof that D did not conform to custom – methods safer than what D used were feasible
  • Existence of custom est. that other people knew of a safer way of doing things and D heedlessly didn’t look for safeguards or consciously chose not to take precautions others would have seen as suitable
    • Either did not know what a reasonable person would know
    • Or didn’t use customary precautions/way of doing things
  • Common practice or usage is still not showing test of negligence: community standard = standard of a reasonable person.
  • Proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances.
  • Whether it meets test of reasonableness: However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence. Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of that behavior which adhered to the custom or the unreasonableness of that which did not.
  • An individual is liable for negligence for not following proper custom and usage standards; not meeting the test of reasonable conduct.
  • D not to be judged as circumstances appeared to him b/c that would be subjective but rather how circumstances ought to have appeared to him (objective).
  • An individual in an emergency situation is expected to behave as an average reasonable person would under the same circumstances.
  • The standard of care to which an individual with a physical handicap must adhere is the same standard of care which should be exercised by an average reasonable person with the same handicap.
  • In determining the negligence of an individual, the ct must take into consideration the physical attributes or shortcomings of the individual.
  • A minor child engaged in the operation of machinery ordinarily used by adults is held to an adult standard of care.
  • Minors are held to the standard of care of a minor of like age, intelligence and experience under similar circumstances unless they are engaged in inherently dangerous or adult activities.
  • The (usual) standard of care to which children must adhere is the objective standard of other children under the same circumstances.
  • Insanity is not a defense to negligent conduct where the D had prior warning and knowledge of his insanity
  • Certain kinds of mental illnesses vitiate liability for negligent conduct. As this case indicates, most cts hold that these are types of illnesses of which the D is not aware. That is, they are so sudden that they may be likened to a heart attack of which one has no prior knowledge. However, if a D is aware that he may be subject to a mental illness which may cause his conduct to fall below the standard of care, the D is already forewarned. Based on this knowledge and forewarning, most cts hold such people to the ordinary standard of negligence.
  • The policy basis of holding a permanently insane person liable for his tort is 1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned (strict liability); 2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and 3)the fear an insanity defense would lead to false claims of insanity to avoid liability.
    • Comes very close to imposing strict liability

The Professional

  • Standard of care for professional: D must possess and exercise the knowledge, training and skill of the ordinary member of the profession in those circumstances
  • Practice below customary standard: held liable for negligence
  • Custom has two aspects
    • Compliance with the custom is determinative of due care: act as safely as other ordinary Dr’s
    • Dr is presumed to have conformed, bring in expert testimony to say he didn’t conform
  • Did Dr. do what standard practice calls for? If so obviously negligent that laypeople can say it was so, no expert testimony required

A professional’s negligence is not determined based on the degree of ordinary care and caution exercised by him in comparison to professionals having the same experience and training (too subjective).

  • An individual who in engages in a business, profession, or occupation, must exercise degree of care that is commonly possessed by the members of that business, profession or occupation (more objective).
  • A specialist in a particular profession may be held to a higher standard of care. However, the professional standard is an objective one.
  • An attorney who has acted in good faith and in the best interest of his client is not liable for negligence for a mere error in judgment.
  • Professionals who exercise their best judgment and adhere to the standard of care required in their profession are not subject to liability for mere errors in judgment.
  • For medicine, the cts do require expert testimony on if D departed from customary standard
  • In a medical malpractice case, the P must prove the standard of care in the medical community and that the D’s conduct departed from this standard.
  • In medical malpractice cases, the P must prove that the D’s conduct fell below the accepted standards in the medical community.
  • In each malpractice suit certain rules are always applicable.
    • First, a medical practitioner is presumed to possess the degree of skill and learning possessed by the average member of the medical community in which he practices, and that he applies the skill and learning with ordinary care and prudence. If the Dr. does not do so, he is negligent.
    • Second, before a physician is held liable in malpractice, the P must prove that the Dr’s act or omission was such that it deviated from the applicable standard of care.
    • Third, the P must prove the applicable standard in the community by affirmative evidence.
    • Fourth, negligence on the part of the physician is never presumed, even if the treatment in question was not successful. This means that the P must prove affirmatively that the physician was in fact negligent in his acts or omissions.
    • Last, the standard of care must be established through the testimony of expert witnesses.
  • It is not enough for the P’s expert to testify as to what he would have done; the expert must also testify that the D’s practice was not recognized as valid in the medical community.
  • Trend of medical malpractice cases to restrict or eliminate locality rule
  • CA statute: imposes a locality rule for Drs who provide emergency room services in a general acute care hospital. Also expert medical testimony only admitted from surgeons with substantial medical training
  • Medical malpractice is viewed as negligence
  • Medical professionals who are trained according to national standards should be held to a national, rather than local, standard of care.
  • When the patient consents to certain treatment and the Dr performs that treatment but an undisclosed inherent complication with a low probability occurs; rather, the Dr in obtaining consent may have failed to meet his due care of duty to disclose pertinent info. Should be pleaded as negligence
  • Negligence is found if Dr hasn’t given patient sufficient info for patient to make decision
  • Expert medical testimony not required for breach of duty to disclose risks
  • Must be actual injury resulting from Dr’s breach of duty
  • If a prudent person had received this info, ask whether a reasonable person would have gone forward with the procedure
  • Dr must disclose all info necessary for patient to make informed decision to permit operation
  • Rule in CA – informed consent specific to CA
  • It is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interest lie.
  • An objective test is preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils.
  • As an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.
  • A physician is liable in negligence if he does not inform the patient of his options and its attendant risks before treating the patient.
  • The cause of action for lack of informed consent has three elements, all of which must be proved by the plaintiff.
    • The P must prove that the Dr had a duty to disclose
    • The P must prove causation. That is, the P must prove that had the doctor properly informed the P, the latter would not have undergone the surgery; this is a subjective test.
    • The P has to prove that he suffered actual injury as a result of the treatment.
  • Cases which are based on negligence for the lack of consent are different from those in intentional torts.
    • Battery: P does not need to prove that he suffered any kind of injury.
    • Negligence: where the Dr has gotten the P’s consent, but the consent is not effective or informed, the patient has a cause of action in negligence, and the P must prove that he has suffered actual injury.
  • In order to satisfy his fiduciary duty to the patient and obtain the patient’s consent, a physician who is seeking a patient’s consent for a medical procedure must disclose his own personal interests, unrelated to the patient’s health, that may affect the patient’s decision.
  • The doctrine of informed consent requires a physician to disclose to the patient all material information regarding the physician’s own personal interests in treating the patient.

Aggravated Negligence

  • CA Civil Code (1872 – present): common carriers must use utmost care & diligence for safe carriage must exercise everything for that purpose & use reasonable skill. I.e. – taxi drivers
  • Intentional torts (highest level of wrongdoing)- subjective test
  • Recklessness = gross negligence, willful & wanton misconduct – subjective test to measure facts known to actor then apply an objective standard – how reasonable person would evaluate danger. High degree of danger?
    • Intentionally doing an act or failing to do an act which is his duty to another to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him (Restatement of Torts).
  • Negligence (lowest level of wrongdoing)- objective test
  • Looking at actor’s mental state at time he acts: aware of extreme danger & still elects to encounter it
  • No high degree of danger so just negligence
  • 3 imp characteristics
    • Most states allow punitive damages for recklessness- lowest level of fault for punitive damages
    • Proximate cause is extended further for recklessness than for neg.
    • P’s contributory negligence may not be a defense to D’s recklessness
  • Recklessness may be found in circumstances where the D did not appreciate the extreme risk but where any reasonable man would appreciate it. Not reckless when conduct did not involve a high degree of probability that harm would result

Rules of Law

  • Difficult in negligence cases in framing standards of behavior which amount to rules of law. (Ct warns against framing standards in negligence cases)
  • An automobile driver who is crossing over railroad tracks does not, under all circumstances, have the absolute legal duty to stop the car to look for oncoming trains.
  • When it comes to negligence, it is not always right to make standards which rise to the same level as rules of law. While it may be prudent to act a certain way under normal conditions, it may be negligent to act the same way under emergency conditions. The USCS is basically affirming that the question of negligence is one that should be left to the jury unless the conduct or behavior in question is so negligent that rational & reasonable minds cannot reach another decision or draw other conclusions.

Violation of Statue

  • Where a legislative statute imposes the standard of care in certain situations, the violation of the statute constitutes negligence per se.
  • An individual who breaches a duty imposed on him by statute is liable for injuries to those whom the statute is designed to protect if the injuries resulted from his breach.
  • In an ordinary action in negligence the P has to prove 4 elements: 1) there is a certain standard of care; 2) the D’s conduct has fallen below this standard (D’s conduct was negligent); 3) the D’s negligent conduct was the cause of the P’s injury (causation); and 4) the P did in fact sustain actual injury.
  • Thus, it is up to the P to show the required level of care and to show that the D’s conduct fell below it. Thus, a statute which imposes a fixed standard of care relieves the P from proving the first 2 elements in a negligence case. This is often known as negligence per se
  • To take advantage of this doctrine, the P simply needs to show that he is within the class that the statute is aimed at protecting, and that the D has violated the statute. The P, however, still has the burden of establishing causation and injury. Thus, it is important to remember that negligence per se does not mean that the D who violates a statute is automatically liable to the P. Negligence per se does not impose strict liability on Ds. The P still has the burden of proving causation and injury.
  • Negligence per se: Negligence as a matter of law; a violation of a specific requirement of law or ordinance; an act or omission that is recognized as negligent, either because it is contrary to the requirements of law or because it is so contrary to the dictates of common prudence that one could say without hesitation that no careful person would have committed the act or omission.

Applicability of Statute

  • Statute: appropriate standard of care to measure a person’s negligence, that’s all. Doesn’t mean statute is a causal link
  • Jury must determine whether statute applies to civil action in order to impose negligence per se liability
  • A violation of a statute or regulation constitutes negligence per se when the violation results in injury to a member of the class of person protected by the statute or regulation and when the harm is of the kind which the statute or regulation is designed to prevent.
  • A ct may find that violation of a statute is not prima facia negligence if it would be against public policy to do so.
  • A child abuse reporting statute does not create civil liability for one who fails to report abuse.

Effect of violation of statute (procedural effect to use stat. as sub. for reasonable person)

  • Negligence per se: shows negligence in and of itself
    • Does not mean that statute violation is the same as liability for negligent act
  • Proof D has violated stat only means that the P has proven the threshold act of negligence
  • Still have to establish other issues beyond just breach of duty to impose liability
  • A D’s negligent conduct is not actionable unless it is proven to be the cause of the P’s injuries
  • Proof of negligent conduct, without a showing of causal connection between the conduct and injury suffered, is not enough to impose liability on the party whose conduct was negligent.
  • There is a difference between negligent conduct and actionable negligence. While one’s conduct toward another individual may be negligent, the latter may not recover for his damages or injuries unless it is proven that the negligent conduct was the cause of the damages or injuries suffered. The same is true in cases where negligence arises from violation of a statute. One who violates a statute imposing a standard of care has fallen below that standard, and is therefore negligent. However, for this negligence to be actionable a P who has suffered an injury because of the violation must prove that his injury was caused by the violation.
  • Negligence per se: once stat is determined to be applicable, is appropriate standard to measure reasonable conduct, then unexcused violation is conclusive on finding that actor acted negligently
    • Negligent as a matter of law & jury has no power to relax that standard
    • Approach used in a majority of states today
    • If applied inflexibly to every violation of statute – then sometimes careful D will be found to have been in violation of law & liable
    • But cts do not usually apply rule mechanically to every case – do recognize exceptions
      • Judge evaluates the excuses so there is flexibility in the negligence per se rule
      • Only violations that are unexcused will D be held liable
    • P just has to show violation of stat
  • Presumption of negligence (prima facia of negligence): Used in Zeni case & in CA
    • Violation of applicable statute creates a presumption of negligence
    • This presumption shifts the ultimate burden of proof to the party who has violated the statute, shift to D.
    • Presumption of neg on D, D may rebut presumption by showing adequate excuse for conduct
    • If evidence not strong enough, then presumption of neg is conclusive on issue of neg
    • Usually not adequate excuse for violating stat, so usually pretty similar to negligence per se
    • Ultimate burden of proof for breach of duty shifts from P to D who has violated the stat
    • Jury evaluates evidence where in negligence per se, judge rules whether or not to apply the stat
  • Evidence of negligence rule: proof that D violated statute is only evidence of negligence that will be submitted to jury along with all other evidence of case
    • Up to jury to decide negligence by using reasonable person standard
    • What if D offers no explanation for violating statute? Trial judge then retains the power to direct the verdict
    • But clearly inexcusable breach of statute will be found to be negligent b/c judge will direct verdict
    • Excuses are listened to though
  • Where there is sufficient excuse or justification for a party’s violation of a statutory standard of care, the statutory standard is inapplicable
  • The violation of a statute which is found to apply to a particular set of facts creates a presumption which can be rebutted by a showing of an adequate excuse or justification for violation of the statute.
  • Three possible approaches for the effect of a reasonable excuse or justification for violation of a penal statute which imposes a standard of care in civil actions.
    • Negligence per se: without regard to any excuses or justifications. This is almost like a rule of strict liability, which does not take into consideration the circumstances surrounding each case.
    • Merely evidence of negligence: therefore allowing the jury to find whether the person violating the statute did indeed fall below the acceptable standard of care.
    • Rebuttable presumption of negligence (position ct takes): which is overcome only by positive and unequivocal evidence of reasonable excuse or justification.
      • This approach is stricter than the second approach, but more lenient than the first, and allows the person accused of violation a statute to offer excuses and justifications for his violation.
      • The question then goes to the jury as to whether the excuse is credible. If it is, then the statute is set aside and the jury must decide the issue of negligence based on common law standards of care.

Proof of Negligence

Ct & Jury: Circumstantial Evidence

  • Circumstantial evidence: whether it is sufficient for P to move forward on a claim of negligence
  • Pre-trial burden:
    • Pleading burden
    • Pleading/complaint – P has a pleading burden
    • D may submit motion to dismiss b/c failure of cause of action
    • P must show facts of breach of duty & harm
  • Trial
    • Production burden – P must show at end of evidence to cont trial
    • P presents evidence to prove claim
    • D’s motion to non suit the P, D is making argument that s a matter of law, P evidence is too weak to go to jury
    • How strong must P evidence be in order to be non-suited
    • Q of whether a jury could find/ appropriate for jury to find /permit jury to find D was negligent
    • P’s evidence must be such that reasonable people COULD conclude that it is more likely than not the D was negligent & that caused injury
    • Judge must decide if jury could legitimately conclude neg
    • If not sufficient evidence, end of case, D wins
    • But, if ct decides evidence is sufficient to permit jury to find D’s negligence, then ct will deny D’s motion for directed verdict
    • Case proceeds: D presents evidence of non-neg
    • At end: either party can make motion for directed verdict – saying as a matter of law that other party’s evidence is so weak that jury could decide no other way
  • End of trial
    • Ultimate burden of proof (placed on P to est D was negligent)
    • Decided at end of trial – P must ACTUALLY prove to jury beyond reasonable doubt that neg actually occurred
    • Typically though, evidence is sufficiently uncertain & ct sends case to jury
    • Then P must prove more likely than not
  • In an action in negligence, the P has the burden of establishing sufficient facts that D has engaged in conduct that is negligent.
  • In a negligence action, in order to avoid a directed verdict, the P must provide sufficient evidence from which reasonable jurors could infer that the D was engaged in negligent conduct and that his negligence caused the P’s injury.
  • In a negligence case, the P, at the outset of the case, has the burden of producing enough evidence to allow reasonable jurors to infer that the D was negligent and that his negligence resulted in the P’s injury. The evidence sufficient to avoid a directed verdict is evidence which simply supports the P’s position and is weighed by the jury; the evidence need not compel a certain conclusion or decision in favor of the P.
  • Where the P in a negligence action has introduced evidence sufficient to support an inference of negligence on the part of the D, the trial ct may not direct a verdict in favor of the D
  • A directed verdict in favor of the D is not appropriate where the P has presented evidence sufficient to support an inference of negligence on the part of the D.
  • In a slip-and-fall case, circumstantial evidence may impose constructive knowledge of dangerous conditions
  • Actual or constructive knowledge of a dangerous condition, established through direct or circumstantial evidence, must be proven to impose liability for injuries caused by the condition.
  • Failure to inspect may constitute constructive notice of a dangerous condition.
  • Although a storeowner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.
  • The notion of constructive notice places a duty upon landowners not only to correct those hazards known to exist, but to reasonably inspect the premises to discover such hazards. The concept of reasonableness does not require landowners to keep constant watch over every corner of their premises in all circumstances, so long as reasonable actions are taken to determine any danger that may exist.
  • A P need not prove D’s notice of the dangerous condition which has caused her injuries, when the dangerous condition is one which is continuous and easily foreseeable.
  • Where the existence of dangerous conditions on the D’s premises is easily foreseeable, the P need not prove that the D had notice of the conditions.
  • To est. a premises liability claim, the P must est. that the D had actual or constructive notice of a dangerous condition creating an unreasonable risk of harm and the D’s failure to use reasonable care to minimize the harm, which caused the P’s injuries.

Res Ipsa Loquitur

  • CA approach to RIL
    • When RIL imposed, the production burden shifts to the D
    • Jury must find accident resulted from D’s negligence unless D produces alternative evidence
    • Rebuttable presumption becomes conclusive unless other evidence offered by D
    • Jury finds for D if he gives explanation unless jury believes P has sustained ultimate burden of proof
    • SHIFT PRODUCTION BURDEN TO D, not ultimate burden though
  • In most jurisdictions the RIL warrants an inference of negligence which the jury may draw or not, as their judgment dictates
  • Only move to second when really obvious negligence: raises a presumption of negligence which requires the jury to find negligence if D does not produce evidence sufficient to rebut presumption: shift burden of production to D
    • CA’s approach
  • Not generally used: not only raises such a presumption but also shifts the ultimate burden of proof to D and requires him to prove by a preponderance of all the evidence that the injury was not caused by his neg.
  • Types of evidence:
    • Direct eyewitness
    • Expert testimony
    • Circumstantial evidence (RIL is a portion of the cases involving circ. evidence)
  • (RIL) “the thing speaks for itself.” There are circumstances where it is nearly impossible for a P to prove that his injuries are a result of the D’s negligence.
  • Can make an inference of negligence
  • P’s burden of proof: P just has to show that it is more likely than not that D was negligent
  • Juries are able to reach the conclusion that the shopkeeper was negligent: permissive inference
  • Under the doctrine of res ipsa loquitur (RIL), where a P’s injury would not have occurred but for someone’s negligence and the instrumentality which caused the injury was in D’s control, negligence on the part of the D is presumed.
  • A P need not provide evidence of negligence on the part of the D when the mere fact of the accident or injury having occurred is evidence of negligence of the D.
  • In such cases, the P may succeed in taking his case to the jury by showing that:
    1. the injury would not have occurred, but for someone’s negligence
    1. The instrumentality causing the injury was in control of the D
    1. The P was not contributorily negligence in bringing about the injury (this aspect of RIL is not explored in this case).
  • In other words, RIL stands for the proposition that the mere occurrence of certain accidents or injuries is evidence of the D’s negligence.
  • In such cases, the P need not prove directly that the D was in fact negligence in his conduct. Negligence of the D is presumed.
  • After the P establishes the three elements of RIL, it is up to the D to prove that he was not negligent.
  • It is importation to remember that RIL is another way of relieving the P of the burden of directly proving that the D’s conduct fell below the accepted standard of care.
  • Note that RIL may not be used when direct evidence of negligence exists.
  • Res Ipsa Loquitur: “the thing speaks for itself.” A rule whereby the negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided: 1) the occurrence is the kind of thing that ordinarily does not happen without negligence; 2) the occurrence must have been caused by an agency or instrumentality within the exclusive control of the D; and 3) the occurrence was not due to contribution or voluntary action by the P.
  • In a case of negligence based on RIL, in deciding a nonsuit verdict in favor of the D the court must construe the evidence in the light most favorable to the P and most strongly against the D.
  • The doctrine of RIL does not apply in a case where the P’s injury could be attributable to more than one cause, some of which are not within the exclusive control and management of the D.
  • Thus, the doctrine only applies where the cause of injury is under the exclusive control of the D, not where the accident may have been attributable to one of several causes, for some of which the D is not responsible.
  • Not common for RIL to apply to medical malpractice cases
  • But hard for P to get expert witnesses to testify against other Dr’s
  • D has superior knowledge given his position too
  • Expert testimony provides missing information the jury needs to understand circumstances
  • Modified RIL: Doesn’t have to show how D was negligent, just that something like this does not normally occur
  • A Dr who conforms to accepted medical practice is not negligent, patient is subjected to a calculated risk of injury, if it occurs, doesn’t mean that Dr was therefore negligent
  • Multiple D means divided responsibility – P has no way to prove who caused the harm
  • RIL may apply to situations where more than one D is the cause of the P’s injury and the various instrumentalities which caused the P’s injuries were in control of the Ds in question
  • Where the P establishes the prima facia case for D’s negligence based on RIL, the ct must not always as a matter of law enter a verdict for the P.
  • Where evidence of negligence is not extremely strong, RIL permits the jury to choose the inference of the D’s negligence in preference to other inferences

The application of RIL could give rise to three procedural possibilities:

  • It warrants an inference of negligence which the jury may or may not choose to draw
  • It raises a presumption of negligence which requires the jury to find negligence if the D does not produce evidence sufficient to rebut the presumption
  • It raises a presumption of negligence and shifts the burden of proof to the D, requiring him to prove by a preponderance of evidence that the injury was not caused by his negligence.
  • The first view is the view held by most cts.

Ch 5: Causation of Fact

Sine Qua Non

  • Causation of fact – whether the injury caused to P – was it a consequence of D’s wrongdoing?
  • Sine Qua Non: “without which not;” “but for.” D’s negligent conduct is not a cause of the event if the event would have occurred without it. D’s conduct is a cause in fact of injury only if the injury would not have occurred but for the D’s conduct.
  • The omission of an act may also be a cause of injury just as an affirmative act can be
  • Negligence is not actionable unless it is the cause in fact of the harm for which recovery is sought
  • Negligence is the cause in fact of injury to another if it is a substantial factor in causing the harm
  • It appears that the accident would have occurred regardless of the excessive speed of the train
  • Therefore, the speed of the train was not a substantial factor in bringing about the death of the decedent.
  • In order to prove a case in negligence, the P has the burden of proving all the elements of negligence.
  • Duty owed by the D to the P
  • Breach of the duty by act or omission of the D ( ie negligent conduct)
  • P needs to prove causation.
  • There are two types of causation:
    • Cause in fact
    • Proximate cause
  • This case deals with causation in fact
  • Simply stated, causation in fact is “but for” causation.
  • That is, but for the D’s negligent conduct, the harm to P would not have occurred.
  • The D’s conduct must be, in fact, the cause of the P’s injury.
  • Thus, it is not enough to prove that the D’s conduct was negligent. The P must also prove that the D’s negligent conduct was the cause of the P’s injury.

Concurrent Causes

  • “But for” rule may be appropriate when answering whether the conduct was/wasn’t a cause
  • However, the “but for” rule is not adequate to deal with a situation where two independent causes concur to produce injury where either one alone would have been sufficient to cause injury
  • Use the substantial factor test
  • As long as two events are material & substantial factor, liability found
  • In any negligence case, where cause in fact being considered, CA ct say use substantial factor test
    • Simplified issue of causation and fact – always use the substantial factor test
  • Any D whose acts are material & substantial factor in causing injury, will be held liable for negligence, don’t have to satisfy the but for test – both D’s can be held liable
  • Where there is more than one cause for a P’s injury, each tortfeasor is liable if each is a substantial factor in bringing about the P’s injury
  • Where a P is injured by the negligent conduct of more than one tortfeasor, each is independently liable if it was a substantial factor in bringing about the P’s injury.
  • The courts have concluded that it would be unfair to deny the P liability, simply because the P cannot show that “but for” the negligent conduct of one D, the injury to the P would not have resulted.
  • Instead, the courts rely on the substantial factor test. Under this test the P may recover from either of the negligent Ds if the P can show that the D’ conduct was a substantial factor in causing the injury. The court leaves it up to the D’s to fight out the issue of apportionment of the damages. This means that the P may recover for all the damages suffered from one D. At that point, the D may bring suit against the other D in order to apportion the damages or recover a portion of the amount paid from the other P. This test is an extension of “but for” causation and is used in exceptional cases where each D’s negligence is sufficient by itself to have caused injury to the P.
  • Joint & several liability: Refers to the sharing of liabilities among a group of people collectively and also individually; thus, if Ds are jointly and severally liable, the injured party may sue some or all of the D’s together, or each one separately, and may collect equal or unequal amounts from each in satisfaction of his damages.

Proof of Causation

  • The chain of causation between the P’s injury and the D’s negligence is not broken by the mere possibility that an accident without the D’s negligence could have led to the same result.
  • Where the negligence of a D greatly increases the chances of an accident giving rise to the P’s injury, the possibility that the accident could have happened without the negligence does not break the chain of causation.
  • If a P does establish that D’s act was cause in fact of injury, then P need not disprove all other possible causes
  • Evidence that D”s conduct was a cause in fact of the accident must be offered to make a negligence claim.
  • A P must prove all 4 elements of negligence:
  • Duty
  • Breach of duty
  • Cause
  • Damage
  • If the P fails to offer proof on any one of these elements, the action fails and summary judgment is proper in favor of the D.
  • In order to impose liability on a D, it is not sufficient that the P prove that the D’s negligence and the P’s injury co-existed or that the injury came after the negligent conduct of the D.
  • The injury must have been caused by the negligence. Also, it is not sufficient for the P to show a possibility that the injury complained of was caused by the negligence. Possibilities are not enough to sustain a verdict.
  • A mere possibility that the injury could have been caused by the negligence of the D is not enough. Additionally, temporal connection between the negligence of the D and the P’s injury is not enough. There has to be a causal connection.
  • In cases dealing with reduction in chance of survival, the P need only show that the D’s acts or omissions increased the risk of the decedent’s death.
  • An action in negligence can be maintained where probable reduction in the decedent’s chance for survival can be proven, even though the decedent would not have lived to normal life expectancy.
  • Once the P establishes that the D’s acts or omissions have increased the risk of harm to another, the evidence should go to the jury to determine whether the increased risk caused by the D was a substantial factor in bringing about the harm.
  • In such cases, however, damages should be awarded based only on damages caused directly by the premature death, such as lost earnings and additional medical expenses.

Problems in Determining which party caused the Harm

  • Where two Ds are simultaneously negligent toward a P, but only one D’s negligence caused P’s injury, P may recover against either D/may recover from both Ds even though the P is unable to show which D actually caused the P’s injury.
  • This type of causation, known as alternative liability, is different from that seen in the previous two cases. In those cases, also known as “combined causes,” the negligence of each D is sufficient to bring about the P’s injury. However, because of the circumstances surrounding the case, it is impossible for the P to prove which D was the cause.
  • Joint & severally liable: Both are liable together as well as separately
    • Responsible together for amount & responsible severally for total amount
    • Can collect all from one or both Ds
  • P’s right to collect from Ds total amount of damages – rt to collect from wither or both
  • Must act in concert in order for them to be joint tortfeasors
    • Acting together pursuant to some plan or scheme
    • You rob bank, I’ll watch for the cops
  • If D1 can show that D2 did the damage when acting in concert, D1 will not be relieved from liability
    • B/c of their conspiracy, act of one becomes act of all & all are jointly and severally liable
  • In current case, difficulty of proof as to whose bullet struck P
  • If D knows that he alone caused injury, he has the best evidence but he probably won’t come forward
  • Where there are true joint tortfeasors who might know who caused injury – held jointly & severally liable anyways
  • Where they are not joint tortfeasors – ct gives the innocent D the opportunity to come forward with evidence to dissolve himself of liability
  • Since both the Ds were in fact negligent, hold them both liable since impossible to determine who actually caused the harm
    • Due to difficulty of proof, reality is that one D is being held liable b/c he did cause the harm & other liable for negligently risking causing harm under situations where causation cannot be proved
  • CA SC 50 years later: fair & just to apply theory of alternative liability & burden shifting rule:
    • All tortfeasors were D – have to sue them all & in certainty,
    • One caused injury, each person was a wrongdoer, coequals from standpoint of fault of negligence,
    • P’s injury was instantaneous & indivisible
    • No contributing & concurring causation
    • No factual basis to apportion liability b/w Ds
    • P had no way to prove which shot caused harm
    • W/o this doctrine, tortfeasors would have both escaped liability
  • It is impossible for the P to join all the manufacturers of DES, especially since many of the manufacturers are not in business anymore.
  • As between the innocent P and negligent Ds, the latter should bear the cost of injury to the P. The P in this case in not at fault for failing to produce evidence of causation, and although the Ds are not at fault either, their conduct in making a drug, the adverse affects of which became apparent years later, is significant when there is an unavailability of evidence of causation. Additionally, from a policy standpoint, the Ds are in a better position to bear the cost of injury to the P because the manufacturer is in the best position to discover and guard against defects in its products and warn the consumers of the harmful effects.
  • It is reasonable to measure the likelihood of each Ds liability based on the percentage of DES that each sold on the market as compared to the total DES sold on the market. This way the Ps damages may also be apportioned based on the total contribution of each manufacturer to the market.
  • Enterprise Liability: Situation in which several Ds, acting independently, have adhered to an industry-wide standard of care, in which all the Ds jointly controlled the risk of injury from their products.

Proximate or Legal Cause

  • Legal Cause (Proximate Cause): Type of cause which in the natural and continuous sequence, unbroken by any new independent cause, produces an event, without which the injury would not have occurred.
  • Law not going to hold D liable if wrongful act was not a proximate cause of injury
  • Cause in fact refers to the cause and effect relationship between the D’s tortious conduct & the O’s injury or loss. Thus, cause in fact deals with the “but for” consequences of an act. The D’s conduct is a cause of event if the event would not have occurred but for that conduct. Proximate cause concerns a determination of whether legal liability should be imposed where cause in fact has been established.
  • Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and our more or less inadequately expressed ideas of what justice demands or of what is administratively possible and convenient.
  • Proximate cause should be limited to the ordinary and natural consequences of an act but courts should not set rigid limitations in defining proximate cause as a basis of liability.

So far we have seen that in order to recover for injury caused by the negligent acts of a D, the P must prove that the D owed a duty to the P, that the D breached this duty (D was negligent), and that the breach of this duty was the “but for” cause of the P’s injury.

  • An additional element that needs to be proven by the P is that the D’s negligent conduct was the proximate cause of the injury.
  • Proximate cause refers to that which in a natural and continuous sequence unbroken by any new independent cause produces an event, without which the injury would not have occurred.
  • Unlike causation in fact, there is no standard or rigid rule for proximate cause. Instead, the issue of proximate cause is a fact-driven analysis of the relationship between the D’s negligence and the P’s injury.
  • Simply stated, if the relationship between the two is attenuated (lessened in amount, force or value), there may be no proximate cause. In determining this issue, time and distance are some of the factors that the courts will take into consideration.
  • It is the duty of the courts to confine liability within manageable limits. Limiting liability to those who ingested DES and those who were exposed to it in utero will serve this purpose.
  • This case is like a separate category of proximate cause – rarely make broad public policy judgment to cut off liability
  • Usually look at specific facts for proximate cause
  • Holding the Ds liable would impose a duty on them toward someone who is not yet conceived. Such duty would not only deter manufacturers from introducing new products, but will also expose them to unlimited liability for an unlimited amount of time.
  • It would impose a duty on Ds for injuries which were not in fact foreseeable at the time of their negligent conduct.
  • Thus, one of the effects of the proximate cause doctrine is to limit the liability of Ds to those injuries which are foreseeable.

Unforeseeable Consequences

  • Two factors to keep considering:
    • Results – the injury that occurred
      • Was it foreseeable?
      • Or unforeseeable?
    • How the results occurred/were caused?
      • Was it a case of direct causation?
      • Or did some force intervene/indirect causation?
        • Was the indirect causation foreseeable?
        • Or unforeseeable?
  • Easiest to decide is directly caused, foreseeable results
  • Most proximate causes cases involve one of two tests:
  • Reasonable foreseeability approach
    • Not enough to just cause injury, it must be reasonably foreseeable – narrow scope
    • The area within which liability is imposed is that which is within the circle of reasonable foreseeability
      • Liable for that which D did not foresee but should have foreseen (reasonable person)
      • Just a test of proximate cause? Whether D’s conduct subjected P to an unreasonable risk of harm
        • Whether D breached a duty of due care?
      • Not liable for negligence when you have not violated a duty owed to P
      • If D could not reasonable anticipate any injury as a result of act, then has not breached duty of care, not negligent
      • If D has acted negligently, subjected P to unreasonable risk of some harm & is liable for the unforeseeable injury b/c he still has breached a duty of care
      • Once breach of duty has been est, move to causation: cause in fact & proximate cause
      • For negligence, focusing on D at time he acted, ask is some harm foreseeable to reasonable person in D’s position?
        • Satisfy breach of duty, focus on injury that actually did occur – then use reasonable foreseeability test to determine proximate cause
  • The issue of proximate cause never arises until there first has been a determination that the D has breached a legal duty
    • Have to have a negligent actor first before getting to the proximate cause Q
  • Natural Consequences approach
    • Very broad test for proximate cause
    • Consequences that follow an unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate
    • Is this really a test of proximate cause? Merely says that proximate cause = cause in fact
    • Direct causation and negligent D has caused direct injury, then proximate cause will be found
    • Liable for remote and unforeseeable consequences
  • A D is liable for the proximate results of his conduct but is not liable for the remote damages caused by his conduct.
  • A D is only liable for the ordinary and natural results of his negligent conduct.
  • A D is not liable for damages which are caused by his negligent conduct, but which are too remote to be anticipated at the time the negligence of the D is taking place.
  • Property damage v. personal injury difference
  • A negligent party should only be liable for those injuries which are the proximate and foreseeable result of his conduct.
  • In negligence cases, the D takes the P as he finds him.
  • A D is liable to the P in damages for the aggravation of P’s pre-existing illness due to the D’s negligent conduct.
  • Where it is reasonably foreseeable that the D’s negligent conduct would cause damages to the P, the D is liable even though the exact extent of the damages is not foreseeable.
  • Neither the type of damages nor the extent of damages need to be anticipated by the negligent D in order to find the D liable. Given that D was negligent, and given that the damages were a direct result of D’s negligence, the exact anticipation of D is irrelevant.
  • Once a D’s act is negligent, the fact that its exact operation was not foreseeable is immaterial.
  • Note that the proximate cause element of negligence requires that the P’s injury be a natural consequence of the D’s negligent conduct. In other words, the D is liable only for foreseeable consequences of his conduct.
  • The foreseeability requirement is satisfied as long as it is reasonably foreseeable that the D’s conduct would lead to injury to the P’s person or property in some way or another.
  • However, under this requirement, the extent or the exact type of damages need not be foreseeable.
  • Remember: extent, type and manner in which damages occur need not be foreseeable in order for the D to be liable.
  • A D is liable only for those consequences of his act which are reasonably foreseeable
  • A D is not liable for unforeseeable consequences of his negligent conduct, even though they were the direct result of D’s conduct
  • Thus, this case stands in sharp contrast to Polemis. In a sense, this case is limiting the liability of Ds only to cases where the actual injury or damages to the Ps are reasonably foreseeable.
  • A D is liable for damages where a reasonable person in the D’s position would have foreseen and prevented the risk of injury.
  • The foreseeability of the consequences of a D’s actions depend on the balancing between the likelihood of risk and the magnitude of damages flowing therefrom.
  • Note the in Wagon Mound #1, the court held that the D is only liable for the damages that are reasonably foreseeable. That case was in direct conflict with Polemis, which held that a D is liable for all damages directly resulting from the D’s negligent conduct.
  • At first glance, Wagon Mound #2 may seem different from both of these cases. However, it really is like Wagon Mound #1, it limits the liability of the D to damages which are reasonably foreseeable.
  • However, this case, unlike Wagon Mound #1 presents a formula for determining foreseeability. In this case, the court requires that the risk of damage be weighed against the magnitude of the damage, and also against the cost of preventing the damage.
  • If a reasonable person in the D’s position would have prevented the risk of damage, then the damages is considered foreseeable and the D is liable for it, even if the probability that the damage would occur is very unlikely.
  • The risk reasonably to be perceived defines the duty to be obeyed
  • Zone of danger around D’s negligent act – only if P falls within that zone, does the D’s negligent act constitute a negligent act to that P
  • If harm to that P was reasonably foreseeable, then he falls within the zone of danger and the D’s act is a negligent act towards that P
  • A D is only liable for damages to a P to whom the D foreseeably owes the duty of care.
  • A D owes a duty of care only to those Ps who are in the reasonably foreseeable zones of danger.
  • In every negligence case, before negligence of the D can be determined, it must be found that the D owed a duty to the P, and that the D could have avoided the injury to the P, had he observed this duty. The P in a negligence case may sue in her own right only for a wrong personal to her. The orbit of the danger or risk as disclosed to a reasonable person would be the orbit of the duty. Thus, a P must show a wrong to herself, or a violation of her own rights, but not a wrong to anyone.
  • As long as the damage/injury was of the same general sort from the same forces and to the same class of persons, then the actor is liable if he failed to exercise due care.
  • D not liable for injuries that are a remote or indirect consequence of D’s negligence.
  • A negligent actor is legally responsible for the harm, and only that harm, of which the negligent aspect of his conduct is a cause in fact.
  • BUT (still liable for injury that occurred in a different manner/ negligent risk materialized even if it materialized in an unusual manner); consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate.
  • When courts have decided that the intervening act should cut off liability, it is labeled a “superseding” cause.
  • Foreseeability of Intervening Force: the test for determining whether an intervening force constitutes a superseding cause is often couched in terms of foreseeability. A person must foresee the normal consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons.
  • Merely b/c intervening force is not foreseeable does not relieve D from liability (in other words, injury to P from pole falling was reasonably foreseeable, just not foreseeable the way it fell)
  • If result is foreseeable and D’s negligent act is a cause in fact of the injury, the fact that the manner that the injury was brought about is not foreseeable but doesn’t matter
  • In order to prevent an intervening act from being a superseding cause which will relieve the D of responsibility for his negligence, the law does not inevitably require that the precise act be foreseeable.
  • If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.

Intervening Causes

  • Generally, the intentional criminal intervening act of a third party breaks the causal chain between the original D’s negligence and the P’s injury.
  • A negligent D is not liable for the intentional intervening malicious acts of a third party which are not reasonably foreseeable.
  • If the intervening agency is so unexpected or extraordinary that the D could not or ought not to have anticipated it, the D will not be liable. Certainly, a D is not bound to anticipate the criminal acts of others and is not liable for them.
  • The question of proximate cause is for the jury, not the court to decide.
  • The opinion in this case seems to suggest that intervening intentional acts of others are not foreseeable, and as such there is no reason that the D should have known about them. Thus, such acts break the causal chain and become superseding causes for the P’s negligence.

Public Policy

  • Proximate cause: indirect causation and an intervening cause: does not relieve original negligent D from liability unless there is a superseding cause
  • Not relieved from act that is a cause in fact of injury unless intervening cause is a superseding cause
  • Foreseeable intervening force producing the same injury
  • Original D’s negligence is still a proximate cause of the injury even if indirect – if intervening force is foreseeable and produces foreseeable result
  • Foreseeable intervening force if within the scope of the injury to P, then within the scope of D’s negligence
  • A host is liable for the negligence of an adult social guest who has become visibly intoxicated at the host’s home, and where risk of harm to others is foreseeable.
  • The court reasons that the duty should be imposed because it is reasonable for a host to foresee that a drunken guest will get into a car, and collide with another and cause injury. Additionally, the court’s other reasons for extension of this duty is the public policy of protection of individuals against drunk drivers.







Cases Intervening force Result Liability
Kelly Foreseeable Foreseeable Yes
Gibson Unforeseeable Foreseeable (ct focuses on this) Yes
Watson (negligence of intervening act) Foreseeable Foreseeable Yes
If negligence was unforeseeable: If unforeseeable, could use Gibson Foreseeable Yes
Watson (intentional misconduct of intervening actor) Unforeseeable Unforeseeable No

Intervening Causes

  • The rescue doctrine may be invoked in product liability actions and, if it is, the rescuer is required to show the D proximately caused his injuries.
  • The rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly.
  • To achieve the rescuer status, one must demonstrate:
    • The D was negligent to the person rescued and that negligence caused the peril or appearance of peril to the person rescued
    • The peril or appearance of peril was imminent
    • A reasonably prudent person would have concluded such peril or appearance of peril existed
    • The rescuer acted with reasonable care in effectuating the rescue.
  • The rescuer, like any other P, must still show the D proximately caused his injuries.
  • P’s own conduct can constitute an intervening cause that breaks the causal connection between the D’s negligence and the injury. However, in order to be a superseding cause, the P’s conduct must be more than contributory negligence that would be relevant in apportioning negligent conduct.
  • In an indirect causation situation, if there is an unforeseeable intervening force that produces an unforeseeable result, original D is free from liability.
  • Two general approaches to the problem of proximate cause – the hindsight, or direct-causation, approach and the foreseeability approach. In theory, the foresight approach would produce a smaller ambit of liability.
  • But the foreseeability is an accordion concept, depending upon the detail and precision with which foresight is required.
  • Express in terms of risk idea: this position has been justified as more rational, since the factors which define negligence should also limit liability for negligence; as easier to administer, since it fixes the nearest thing to a definite boundary of liability which is possible; and more just, since negligence may consist of only a slight deviation from the community standard of conduct, and even be free from all moral blame, while its consequences may be catastrophic, and out of all proportion to fault.
  • D held liable for doing something negligent even if third party has failed to intervene to stop harm. Failure to eliminate danger will not absolve D of original liability
  • Circumstances have to be really extraordinary to shift responsibility to another wrongdoer.
    • Criminal acts
    • Suicide
    • Long lapse of time


  1. The areas of law in which duty is of vital concern lie beyond the core of wrongful acts causing physical harm. There are three areas in which a duty of care is central in establishing liability:
    1. The, often wrongful, act of a third party or a natural event has caused physical harm to P that D has failed to take affirmative steps to prevent or ameliorate
    1. The negligent act causes non-physical harm, i.e., emotional distress or pure economic loss; and
    1. The negligent act causes losses in birth or conception where the traditional categorizations of personhood are incapable of bestowing a cause of action. This third area demonstrates that technological advances and social change may give rise to new interests that may be protected.
  1. Basic assumption we have been making up to now about everyone’s duty but now examine that law does not always impose a duty of care
  1. Negligence consists of conduct; not a state of mind
  1. In a typical negligence case, risk of harm cannot outweigh gravity of preventing it for negligence

Failure to Act

  • When creating the risk of harm to others by affirmative conduct, then negligent
  • Responsible when exposing the P to a new risk of harm. The D CREATES a new risk of harm to P
  • Non-conduct on the other hand, in this case, has not exposed the P to a new risk of harm
  • A university does not have the duty to control the private lives of its students.
  • So far we have seen cases where the negligence of the D in committing an act has caused the P’s injury. This case, on the other hand, is one where the Ps claim that the negligence of the D arose from its failure to act or to perform a duty owed to the P. Thu, negligence could not only arise from affirmative actions of a D, but also by a failure to act where the D has a duty to act. Clearly, like other negligence cases, the P has to establish that the D, indeed, has a duty towards the P, and that the D has failed to fulfill that duty.
  • Original injury occurred from use of instrumentality under D’s control and special relationship b/w parties imposes a duty to prevent further aggravation of injury
  • Duty to act: Legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless or in a situation of peril, when the one proceeded against is a master or inviter, or when the injury resulted from use of an instrumentality under the control of the D. Such an obligation may exist although the accident or original injury was caused by the negligence of the P or through that a third person and without any fault on the part of the D.
  • If D undertakes duty to act and increases harm to P or P relies upon undertaking of D’s aid – then D liable
  • CA Good Samaritan Statute: immunity does not apply in event of willful act or omission (recklessness)
  • There is no general duty to rescue a person who is in peril unless a special relationship between the parties gives rise to the legal duty to rescue.
  • A store owner or an inviter has the duty to rescue a person in peril if the instrumentality causing the person’s injury is in control of the owner or inviter.
  • Another scenario under which the duty to rescue is triggered is where the person who is in charge of rescue has voluntarily assumed the duty to rescue. In such cases, a failure to rescue constitutes negligence.

Failure to Act


  1. Where the duty is generated by a voluntary undertaking and reliance upon it, the duty to take affirmative action to control the conduct of a third person may arise in two different ways.
    1. The D stands in a special relation to the P that requires him to exercise affirmative care to protect him against the conduct of the third person. Thus the duty of a common carrier to its passengers may require it to take steps to prevent personal attack upon them, theft of their property, or even negligent conduct which threatens to injure them.
    1. The D stands in a special relation to the third person that gives him a power of control over than person’s actions. He is thus required to use reasonable care to exercise that control to prevent the third person from injuring the P. Relationships include parent and child, employer and employee automobile owner and driver, and persons who have taken charge of dangerous lunatics, criminals and persons with contagious diseases.
  1. In all these cases, the D is liable only for failure to exercise the care of a reasonable person under the circumstances.
  • Under the common law, one person owes no duty to control the conduct of another unless the person stands in some special relationship to the other
  • The relationship between a therapist and a patient supports the duty on the part of the therapist to exercise reasonable care to others against dangers posed by the patient’s illness.

Although in this case, the therapist stands in no relationship to the victim, many jurisdictions hold that the single relationship between the therapist and the patient is sufficient to support the duty to exercise reasonable care for the protection of third parties.

  • The public interest in supporting effective treatment and privacy of patients should be balanced against the public interest in safety from violent assaults. If the exercise of reasonable care will protect the threatened victim, there is no social interest that would protect and justify concealment of the relevant communication between the patient and the therapist.
  • The CA legislation provides that psychotherapists are immune from liability to warn except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim.
  • Statute to impose duty to act:
    • Patient must communicate a threat to the therapist
    • It must be serious threat
    • Against reasonably identifiable victim(s)
  • If duty imposed, no liability if the therapist makes reasonable attempts to communicate threat to victims and law enforcement

Emotional Distress

  • A P who has suffered physical injury as a result of emotional distress caused by a D’s negligence may recover damages, even in the absence of any physical impact upon the P.
  • A P’s recovery, however, is limited to those reactions to be expected of a normal person, except where the D has specific knowledge of the P’s hypersensitivity.
  • The Court holds instead that physical impact is not required. In doing so, the Court adopts a reasonable approach by imposing several limitations. For example, there must be a definite and objective physical injury that is the natural result of the fright proximately caused by the D’s conduct, this injury must be proven by scientific testimony; and the Ps cannot claim for mental distress which is beyond what a “normal” person would suffer.
  • Parasitic Damages: Compensation for certain injuries, such as mental distress, when those injuries accompany other injuries for which recovery is traditionally allowed, such as physical injuries.
  • Most states retain the physical manifestation requirement, but two exceptions are well recognized. The death-telegram rule is a minority rule but followed by a number of states; and the negligent interference with body parts.
  • Impact rule: In absence of physical impact on P, cts did not allow P to recover for emotional distress caused by D’s negligence
  • In negligent infliction of mental disturbance: 3 types of cases:
    • D has committed some underlying tort that has produced a physical injury and mental distress results from the physical injury – RECOVERY ALWAYS ALLOWED (Barteloni)
    • Some action the D has caused mental distress with accompanying physical injury – D has caused the mental disturbance and there is some objective physical injury. With elimination of impact rule – RECOVERY CAN BE ALLOWED
    • Action of the D that causes mental distress alone without any resulting, physical injury. Apart from the exception cases, RECOVERY USUALLY NOT ALLOWED – no recovery b/c no breach of duty.
      • But if D had intentionally subjected P to mental distress, then P may recover (no physical injury required)

Wrongful Death and Survival Statutes

Emotional Distress

  • A P may recover damages for emotional distress for injury inflicted on a third person if the P is closely related to the victim and is present at the time that the victim is injured.
  • A parent whose child was struck by a negligent driver may not recover damages for emotional distress where the parent did not witness the accident.
  • A direct victim is a person whose emotional distress is a reasonably foreseeable consequences of the D’s negligent conduct.
  • A P may recover damages for negligent infliction of emotional distress for injury to a third party, if the P is 1) a close relative of the injured party, 2) present at the scene of the injury, and aware of the injury occurring, and 3) suffers serious emotional distress.
  • Since P was not a direct victim: D’s negligent conduct was not aimed at P & she was not within the zone of danger, she was a bystander and cannot recover. She was an unforeseeable P
  • Bystander recovery: 3 requirements that would allow certain bystander P’s to recover
    1. Closely related to injured victim: absent exceptional circumstances, recovery limited to relatives in same household and parents, children, siblings and grandparents of the victim
    1. At scene of injury and aware it is occurring: but no recovery if the P learns about the injury after or observed the injured victim after the event happened
      1. Percipient witness: perceived accident through one of her senses besides just vision, then still recover.
      1. Also don’t have to be an involuntary witness to recover
    1. Suffers serious emotional distress : a reaction beyond which would be anticipated by a disinterested witness and which is not the result of an abnormal response
  • BUT, can recover without meeting the physical injury requirement in CA (in Molien case)
    • Significance of Dillon situation is with general principle of foreseeability
    • Basic principle in CA that a D can be held liable for negligence to direct victim for distress when reasonably foreseeable disturbance
      • Has to do with DIRECT VICTIM, not indirect victim like a witness
      • Don’t have to establish principles of Thing case when direct victim
  • P must prove that he is a direct victim or he must meet the three Thing requirements
  • P within the zone of physical danger (meets Palsgraff) can recover for mental distress if it results in physical injury (objectively manifested injury)
    • In CA, mental distress alone is sufficient for a direct victim to be able to recover
  • When P is not within the zone of physical injury: cts deny recover to indirect victim
    • CA: allows recovery if the P and victim are closely related, P present at scene and aware of injury and P suffers serious emotional distress

Survival and wrongful death action

  • Wrongful death statutes: state legislatures enacted wrongful death statutes to create a new cause of action for the benefit of immediate family members who typically were financially dependent on deceased and therefore suffered an economic loss caused by wrongful act of D
  • Most statutes limit recovery to pecuniary injury (measurable in $) suffered by beneficiaries. Would be monetary contribution deceased would have made in his lifetime to the beneficiary
  • CA: purpose of wrongful death statute is to enable beneficiaries to recover for economic loss and for consortium (the society, health, services, company) of the deceased
    • But a fetus has no dependents and thus its only errs are its parents. Death causes no appreciable economic loss to the parents
    • Only possible loss is parents loss of consortium
  • Survival statutes: (different category) preserve the cause of action that the deceased had at the moment of his death. Administrator of his estate brings the survival claim
    • In CA, when a D dies, no punitive damages are awarded against him in the survival action
    • And if a P dies, the punitive damages that would have been awardable against a living P are still awardable but not the damages for the P’s pain and suffering

Unborn Children

  • If D Dr. negligently didn’t tell pregnant mother about defects of illnesses of child: Two claims
    • Claim #1: A wrongful birth claim – claim brought by the parents for their own injuries
      • Recover for extra expenses for child’s injuries
      • But, deny recovery for emotional distress of parents
    • Claim #2: Child’s claim against D: wrongful life claim.
      • Child is born alive
      • The D, through his negligent act, has not caused the birth defects
      • If child was to be born at all, he would not have been a normal, healthy child
      • D’s conduct has merely denied mother the opportunity to terminate the pregnancy so that the child would not be born with defects
      • Most cts deny recovery to child b/c D did not produce the impairment, Dr just failed to determine harm correctly
      • D’s activity has not exposed this P to any new risk of harm – through no fault of D, this child would not have been born as a normal, healthy child
      • D has not wronged the child, just the parents for denying them their procreative choice
      • Also almost impossible to measure damages for these types of situations
  • CA was one of first states to recognize cause of injury when fetus is born alive but injured, however, CA is consistent with Endresv case and denies recovery for unborn child
  • A majority of states to grant recovery for wrongful death of fetus
  • There can be no wrongful death action for the death of an unborn child
  • The parents of a stillborn child may not maintain a wrongful death action for the death of an unborn child.

Owners and Occupiers of Land

  • With regard to most conditions on land that arise in the state of nature, most courts have held that there is no duty upon the landholder to protect persons outside the premises.

On the Premises

  • Classifying Entrants onto Real Property
    • Trespasser
      • Intruder who enters land without obtaining permission, landowner has no right to protect individuals who are trespassing
      • No duty to inspect premises to discover defects
      • No duty to correct known defects
      • No duty to conduct activities in a way that will protect trespassers
      • However, duty of reasonable care imposed if:
        • If trespasser is discovered on premises, duty on landowner to act reasonably to not injure trespasser
        • Frequent trespasser, but undiscovered trespasser. (Walking on a certain private path)
        • Land owner who continues to tolerate a specific intruder, constitutes permission to enter land – more upgraded in status to the of a licensee
    • Licensee: social guests who enter premises with permission of owner. Entrance onto D’s property is for the benefit of the licensee.
      • Not duty to inspect to discover defects. Licensee takes premises as he finds them
      • No duty to correct known defects
      • Yes duty to warn of concealed dangers known to D and to conduct active operations with reasonable care
      • Some duty of care owed to licensees
    • Invitee: enter the land in the furtherance of the owner’s business. Business visitors whose presence has a potential economic benefit to the possessor of the land. Also, public invitees invited onto land for purpose of public open-use of land
      • Invitees are owed a full blown duty of reasonable care, including reasonable inspection of premises to discover and remove defects, and reasonable care in conducting active operations.
      • Only REASONABLE CARE required – if danger known to invitee and is easily avoidable, then condition is not reasonably dangerous and need not be corrected
      • Includes duty of reasonable care to protect invitees from criminal acts of third persons.
  • Entrants who don’t fit will into the established categories
    • Child Intruders: should they be treated as trespassers or should they be owed a duty?
    • Party Guests: should they be licensees even if the land occupier prepares for their arrival?
    • Public officials: trespassers, licensees or invitees? (like postmen, meter readers, etc – their job is to enter land so not really trespassers, but then what are they?)
      • Typically squeezed into the invitee category
      • But police officers and firefighters are licensees b/c they are usually summoned in an emergency when there is no time to inspect for defects and warn or fix defects before officer arrives
  • Distinction between nonfeasance and misfeasance still is important


  • A landowner does not owe a duty of care to a trespasser of whom the landowner has no actual or constructive notice
  • Always ask three questions when analyzing the duties of a landowner/occupier with respect to conditions on the premises:
    • Is the condition natural or artificial?
    • Are the individuals threatened by the risk of harm on/off the property?
    • What is the status of the individual who is upon the land owners property?


  • A landowner owes 1) a licensee the duty to warn of known and hidden conditions, and 2) an invitee the duty to exercise reasonable care in keeping the property safe
  • The owner/occupier of a property has the duty to warn a licensee/social guest of hidden dangers unknown to the latter.


  • An invitee is one who is expressly or impliedly invited onto the property of another in order to further the party’s economic interest
  • An individual, entering a place of business open to the public, need not make a purchase in order to be considered an invitee.
  • An invitee who goes outside of the area of his invitation becomes a licensee or a trespasser depending on whether he goes there with or without consent
  • An invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter or remain.

Rejection or Merging of Categories

  • CA SC rejects the common law categories of invitee, licensee, and trespasser as a measure of landowner’s duty to others
  • In this case, the CA SP does away with the common law distinctions drawn between trespassers, licensees, and invitees. The SC holds that where a dangerous condition is concealed, and the owner is aware of it, the latter must either repair the condition or warn others of the danger. This, according to the court, should be the rule regardless of the status of the individual. Many states have followed this reasoning, and may another courts have sought middle ground by rejecting the distinctions between licensees and invitees. However, still over 20 states adhere to the three categories in determining the liability of landowners.


Introduction to Damages

  • No schedule of damages – have fact situations and then ask how great the injury was? If negligence & injury proximately caused/ cause in fact – then decide on case by case
  • Nominal damages: a trivial amount of money awarded to P to indicate that the P has prevailed
    • Nominal damages are important to prevent the D from acquiring a prescriptive right over P’s property
  • Compensatory damages: or actual, damages are awarded to make the P whole – at least financially – for the loss he has suffered because of the wrongful conduct of the D
    • Compensatory damages consist of economic damages and general damages
      • Economic (or special) damages: includes such items as:
        • Past or anticipated future medical expenses, lost earnings, loss or impairment of future earning capacity, cost of medical supplies and equipment, cost of attendants
      • General damages – awarded for physical pain and suffering, non-economic damages. Such items include:
        • Past and anticipated future physical pain and suffering, mental anguish, etc
    • Burden of proof for compensatory damages
      • The burden is place on P to prove by a preponderance of evidence
  • Punitive Damages: or exemplary damages, may be awarded to punish D’s wrongful conduct and to deter its repetition in the future
    • Never awarded as a matter of right, but rather, in the discretion of the jury
    • Compensatory damages are, in a sense, punitive, b/c having to pay for past fault. But b/c compensatory damages are tied directly to injury, may be too lenient to stop D from acting that way in the future
    • Conduct warranting an award of punitive damages
      • Intentional torts or recklessness, but not negligence
      • Must also have malice
        • In CA, malice is defined as conduct which is intended by the D to cause injury to the P or despicable conduct which is carried on be the D with a willful and conscious disregard of the rights or safety of others
    • Due Process Limitations on Punitive Damages (BMW v. Gore)
      • The SC articulated three guideposts
        • The degree of reprehensibility of the D’s misconduct
        • The disparity between the harm suffered by P and the punitive damages award
        • The difference between the punitive damage award and civil penalties authorized or imposed in comparable cases
  • Punitive damages may be reduced if excessive
  • In evaluating the appropriateness of a punitive damages award, a court must weigh the reprehensibility of the D’s conduct, the disparity between the actual harm caused and the amount of the punitive damages awarded, and the difference between the punitive damages awarded and the civil penalties imposed under state law.
  • In gauging a D’s conduct, a court should consider whether the harm caused was physical rather than economic, whether the D acted with reckless disregard for the health and safety of others, whether the P was financially vulnerable, whether the conduct involved a repetitive pattern or an isolated incident, and whether the conduct was intentional.
  • Generally, anything over a single-digit ratio calls for close judicial scrutiny. Likewise, as the compensatory damages award increases, the appropriate proportion to the punitive damages award decreases, since a larger ratio is unnecessary to serve the purpose of deterrence and retribution.
  • Applying Gore’s first guidepost, the trial court, in considering the reprehensibly of D conduct, must consider whether the harm was physical rather than economic
  • Applying the second, the Court specifically declined to impose a bight-line ratio which punitive damages cannot exceed
    • However, the court state “In practice, few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.”
    • “When compensatory damages are substantial, an even lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of due process.”
  • Applying the third, the SC noted that the civil penalty for an act of grand fraud was only $10,000, which was dwarfed by the 145 million punitive damages award.


Plaintiff’s Conduct

Contributory Negligence

Contributory Negligence: Conduct on the part of the P that falls below the standard to which he should conform for his own protection, and which is a legally contributing cause in addition to the negligence of the D in bringing about the P’s harm. At common law, any amount of contributory negligence barred recovery by the P.

  • D must establish by a preponderance of evidence that P was contributorily negligent and cts leave Q to jury to decide.
  • Level of fault is greater when D is reckless, not just negligent. So D couldn’t claim contributory negligence if he was reckless
  • A party who has the last chance to avoid injury to another, but negligently fails to do so, is liable for damages to the other, even if the other party was initially negligent.
  • A negligent D, claiming contributory negligence on the part of the P, may not escape liability if the D had the last chance to prevent the injury had he not been negligent.
  • Where the P had the last chance to prevent the injury but failed to do so, the P is contributorily negligent. However, where the D had the last chance, the D is liable based on the Last Clear Chance doctrine. In other words, the Last Clear Chance doctrine is almost a rebuttal for a P who is accused of contributory negligence.
  • Doctrine of last clear chance: the D had the opportunity to avoid the accident after the opportunity was no longer available to the P, the D is the one who should bear the loss. Note that under this doctrine the whole loss is still placed on one party of the other.
  • The jurisdictions that still follow the common law rule of contributory negligence apply the exception of last clear chance in at least one of its many forms. Application of the doctrine may depend on whether the P is (1) helpless, unable to avoid danger, or (2) merely inattentive.  

Comparative Negligence

  • The doctrine of comparative fault is designed to allocate responsibility for damages incurred between the P and the D based on the relative negligence of the two parties.
  • The doctrine of contributory negligence should be replaced by a system of comparative fault to allow the P, whose negligence is less than the D, to recover damages which are reduced in proportion to the P’s percentage of fault.
  • CA adopts pure comparative negligence system as opposed to a modified or hybrid form

While the doctrine of contributory negligence bars any recovery to the negligent P, the doctrine of comparative negligence allows the P to recover damages which are reduced according to the P’s percentage of negligence.

  • There are at least three types of comparative negligence systems:
    • Pure: the P may recover damages which are reduced based on the P’s percentage of negligence. Thus, P’s recovery is strictly proportional to the percentage of negligence regardless of how big or how small this percentage may be
    • Modified: Allows the P to recover damages which are reduced based on the P’s percentage of fault so long as the P’s negligence does not exceed a certain percentage. Some modified comparative negligence jurisdictions require the P’s negligence to be 40% or less (less than the D’s), while other jurisdictions allow recovery where the P’s negligence is no larger than 50% (equal to the D’s negligence).
  • This decision has an effect on many legal principles:
    • It makes the doctrine of remote negligence and last clear chance obsolete
    • Where there is more than one tortfeasor, the P may recover so long as his percentage of negligence is less than the combined negligence of all tortfeasors.
    • This holding renders the doctrine of joint and several liability obsolete
    • Ds will be allowed to testify and prove the negligence of third parties, and the jury will be instructed to determine the percentage, if any, of the non-party’s negligence.
  • The burden of proof is on the D to show both that the P was negligent and that the P’s negligent conduct was a proximate cause of the P’s injuries.
  1. Who Pays for damages in litigation involving multiple Ds?
  • The first question is
    • What do the Ds owe the P?
  • Then and only then, the second question is
    • What do the Ds owe each other?
  1. What are joint tortfeasors?
  1. True joint tortfeasors: Ds who have acted in concert to produce an injury to the P
  1. Independent, Concurrent tortfeasors: Ds whose independent acts have produced an indivisible injury to the P
  1. Imputed or vicarious liability: Nontortious Ds who are held liable only b/c of their relationship with a person who committed a tort. For example: employers are held vicariously liable for the torts of their employees.
  1. P’s rights against multiple Ds
  1. True joint tortfeasors: JOINT AND SEVERAL LIABILITY
  1. Independent, concurrent tortfeasors who have produced an indivisible injury: JOINT AND SEVERAL LIABILITY
  1. Imputed liability: JOINT AND SEVERAL LIABILITY

Joint liability: all Ds who are jointly liable are responsible for the total judgment that P obtains. All Ds are joined in their responsibility. Held together responsible

Several liability: Each D who is severally liable is responsible for the total judgment that P obtains. Each D is separately and independently responsible. P can recover full amount from one, or a portion from each, etc

  1. Rights of Ds: Historic Starting Point
  1. True joint tortfeasors: no right of contribution (work it out on your own; can’t make a claim that other D isn’t paying enough)
  1. Concurrent tortfeasors: no right of contribution
  1. Imputed liability: Total indemnification (can get full repayment from actual wrongdoer. So, employer could recover from his employee who was negligent & employer had to pay for his negligence)
  1. Rights of D: First Reform – Occurred prior to adoption of comparative negligence
  1. True joint tortfeasors: contribution on a pro-rata basis
  1. Concurrent torfeasors: contribution on a pro-rata basis
  1. Imputed liability: total indemnification

Pro-rata basis: take number of people and divide judgment based on number of D against whom judgment has been entered. So $15,000 damages, $5,000 from each regardless of situation

Indemnification: shifts entire loss from one tortfeasors required to pay onto the shoulders of another tortfeasor. (Ex: someone borrows someone’s car and gets in an accident. The owner has to pay but once owner has paid off victim, owner entitled to indemnification from the driver)

  1. Rights of Ds: Second Reform – the rule applied today in most comparative negligence jurisdictions
  1. True joint tortfeasors: comparative contribution
  1. Concurrent tortfeasors: comparative contribution
  1. Imputed liability: total indemnification
  1. Rights of Ds in CA:

THE PROBLEM – CA contribution states, Code of Civil Procedure 875 specifically provides that no D shall be compelled to make contribution beyond his own pro-rata share of the entire judgment. In essence, this status does not allow for comparative judgment

THE SOLUTION – In American Motorcycle Ass’n v. Superior Ct, the CA SC modified the common law doctrine of equitable indemnity, creating a right to partial equitable indemnity. In other words, comparative contribution was achieved by calling it partial equitable indemnity (pretty much the same thing).

  • Injured person able to obtain full recovery minus his contributory fault even when one of the Ds does not have the financial ability to pay his portion. Still have joint and several liability so P can recover from all or some or one. Contributory negligence of P proportioned to combined negligence of the Ds and all of the tortfeasors whether or not those joint tortfeasors are parties in the lawsuit
  1. True joint tortfeasors: no comparative contribution by partial equitable indemnification
  1. Concurrent tortfeasors: no comparative contribution by partial equitable indemnification
  1. Imputed liability: total indemnification
  1. P’s rights against multiple Ds in CA:

CA Prop 51

1431. Joint Liability

An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except as provided in 1431.2 and except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary.

1431.2. Several Liability for Non-economic Damages

In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each D for non-economic damages shall be several only and shall not be joint. Each D shall be liable only for the amount of non-economic damages allocated to that D in direct proportion to that D’s percentage of fault, and a separate judgment shall be rendered against the D for that amount.

Implied Assumption of Risk

Contributory negligence: P’s conduct is negligent, P was at fault as well. Use objective standard of reasonable person. D’s conduct was negligent and at fault.

Assumption of risk: P is consenting through expressed assumption of risk or impliedly through his conduct, to encounter a known risk of harm by D. Use a subjective standard of what the P knew when he assumed the risk. Basically, D not at fault b/c he has not breached a duty to the P.

  • Negates the existence of an intentional tort – make contact with someone who consents, no fault
  • Sometimes the assumption of risk and the contributory negligence overlap
  • A person does not voluntarily accept a risk when no reasonable alternatives exist.
  • For AoR: P must not only know and understand the risk but must also chose to encounter it freely and voluntarily
  • Ct abolished assumption of risk and recast as an aspect of contributory negligence
    • P’s assumption of risk must be unreasonable in order for D to use it against him
    • Unreasonable assumption of risk now treated as contributory negligence – sometimes called secondary assumption of risk
  • In order for a D to be relieved of liability based on implied assumption of risk, the P must have voluntarily assumed the risk. Where a person is left with no reasonable alternative but to encounter the risk, the conduct is not voluntary. Similarly, where a D’s improper conduct leaves a P with a choice of two evils, this is considered a species of duress which destroys the P’s freedom of choice.
  • Comparative negligence takes over implied assumption of risk
  • Of course, express assumption of risk is still valid; however, this is really a contractual concept, largely outside of the law of torts.
  • In spite of known risk of harm, does P’s conduct connote his willingness to reduce the amount of care D owes him?
    • Primary AOR: simply means that the D was not negligent, either b/c he owed no duty to the P in the first instance, or b/c he did not breach the duty owed.
  • CA has also moved to eliminate the separate category of AOR for unreasonable assumption of risk & instead just use contrib neg and then deal with other cases of a reasonable assumption of risk as separate
  • Sporting events: just b/c you’re injured playing sports, doesn’t mean you can recover – its an assumption of risk

Express Assumption of Risk

  • An exculpatory clause is enforceable if it clearly and specifically indicates the intent to release the D from liability for personal injuries caused by the D’s negligence.
  • When parties freely agree to an unambiguous contractual provision, the provision is not void as against public policy. However, when the party protected by the clause engages in intentional, reckless, wanton, or grossly negligent conduct, the bargaining power between the parties is so grossly unequal as to put the other party at an unfair disadvantage, or the contract involves a public interest, public policy may render the contract unenforceable.
  • While a court is more likely to find disproportionate bargaining power when the service offered is more important to the consumer, courts generally will enforce contractual provisions when the consumer has various options available to him. Only when the goods are services involved are sufficiently necessary to a consumer and the consumer is left without meaningful options will a contractual clause generally be struck down.
  • Adhesion contract: a standard-form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.
  • There are two basic issues involved when D asserts that P expressly assumed the risk:
    • The first concerns whether the risk that injured P fell within the unambiguous terms of the agreement.
    • The second issue is whether the contract itself violates public policy and therefore should not be enforced.

Statute of Limitations and Repose

  • A cause of action for malpractice does not accrue, and the statute of limitations does not begin to run, until the injured party discovers or should have discovered the injury.
  • The statute of limitations begins to run only when the patient discovers, or in the exercise of reasonable care should have discovered, the resulting injury.
  • We adopt this rule in those cases where medical malpractice is alleged to have occurred through the negligent performance of surgical procedures.
  • CA medical malpractice: Action for injury or death against health care provider for negligence, time for commencement of action is three years after date of injury or one year after P discovers injury or should have discovered in through reasonable, due diligence
    • State of repose: won’t allow lawsuit after too long a time, regardless of situation (so within 3 years for CA)
  • CA Attorney malpractice: one year period from actual or constructive discovery of wrongful act or four years from the date of the wrongful act or omission
  • Assault, battery & injury or death from wrongful act or neglect – 2 year statute of limitations
    • All other torts are one year

Rule: Statute of limitations may b


  • Precludes any liability for any tort committed.
  • Many of the older immunities no longer apply b/c of insurance that could cover if stuff happens
  • Governmental immunity in CA: alive & well – Public entity, gov, is liable for torts of employees committed during course of employment
  • Importance of immunity is to eliminate what would otherwise be tort liability
    • In CA: Gov immunity is a jurisdictional issues so it can be raised at any time during the case, even during appeal
    • Not like affirmative defense that must be pleaded & proved, this is a jurisdictional issue
  • US Gov has retained immunity for intentional misconduct but can sue for most other torts
  • An immunity differs from a privilege, justification or excuse, although the difference is largely one of degree. A privilege avoids liability for tortious conduct only under particular circumstances, and because those circumstances make it just and reasonable that the liability should not be imposed. An immunity, on the other hand, avoids liability in tort under all circumstances, within the limits of the immunity itself. It is conferred not because of the particular facts, but because of the status or position or relation of the favored D. It does not deny the tort, but the resulting liability.
  • Federal Government: The US waived its sovereign immunity for tort claims under certain circumstances through the Federal Tort Claims Act 1946
  • Abrogation: There have been a number of decisions abrogating the immunity of municipal corporations even for governmental functions.
  • State and municipal immunities also may be abrogated by legislation. Legislation regulating the matter may be enacted after judicial abrogation.
  • Today, almost all states have limited sovereign immunity to some extent. Most state schemes preserve some special privileges to the state as well as placing various procedural limits on the enforcement of the claims.
  • Generally, even those states that have eliminated or limited governmental immunity have retained immunity for the judicial and legislative functions of the government. This immunity also extends to the agents of the government. Thus, a legislator may not be sued for how he voted or a judge for how she ruled.

Strict Liability

  • When a court imposes strict liability on a D, it is saying that the D must pay damages although the D neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law.
  • Liability imposed without fault

Abnormally dangerous activities

  • Even without fault, Ds must pay for damage caused by abnormally dangerous activities.
  • If he is not negligent, but the abnormally dangerous activity causes damage anyway, he still must pay, because he brought something onto his land which was not naturally there.
  • Abnormally dangerous activity: Any activity where: 1) the risk of harm is great, 2) the harm which could materialize is great, 3) any damage could not have been prevented with the exercise of due care, 4) the activity was not one of common usage, 5) the activity was inappropriate to the place in which it took place and 6) the value to the community of the activity is not great compared to the unavoidable risk.
  • By establishing a set of factors for determining whether an activity is ultra hazardous, the Restatement implicitly acknowledged that what may be dangerous in one set of circumstances may be sufficiently safe under different circumstances. The focus, therefore, appears to be more on the environment surrounding the activity than the nature of the activity itself.
  • Strict Liability: Liability that does not depend on actual negligence or intent to harm, by that is based on the breach of an absolute duty to make something safe.
  • The manufacture and shipping (as opposed to carrying) of toxic chemicals is not abnormally dangerous
  • Q is whether the activity is abnormally dangerous, not the substance, to impose strict liability

According to the restatement, an abnormally dangerous activity meets the following criteria (P does not have to prove that all 6 factors exist in order for strict liability to be imposed):

  • The risk of harm is great
  • The harm that would occur if the risk materialized is great
  • Such accident could not be prevented by the exercise of due care
  • The activity is not a matter of common usage
  • The activity is inappropriate to the place in which it occurs
  • The value to the community of the activity does not outweigh the unavoidable risk
Ways of finding strict liability Potential Factors to be considered:Inappropriateness of activity to the place D’s inability to eliminate the danger SL standard
Rylands Rule
Blackburn (694, P2) No (broad) No (broad) Broad scope of liability
Cairns (696, P2) Yes (narrow) No (broad) Only require abnormal use of land
Restatement I (701, n1) No (broad) Yes (can’t be eliminated by utmost care) More narrow than Cairns position
Restatement II (700, end of page) Yes (narrow) Yes (not utmost care, but REASONABLE care) (not as narrow as language of RI but similar to utmost given the circumstances) Move has been to narrow scope of sl

Limitations on Strict Liability

  • Contributory negligence is not a defense to strict liability.
  • A person carrying on an abnormally dangerous activity is not strictly liable for damage which is not within the scope of danger created by that activity.
  • Value to be gained by the activity outweighs the gravity of the possible injury to the P
  • Limitation to the class of persons that is threatened by the abnormal danger, baby mink not the direct P that may be injured, more people in the immediate vicinity, location
  • A person carrying on an abnormally dangerous activity is not absolutely liable if damage caused by that activity was precipitated by an act of God.
  • A person carrying on an abnormally dangerous activity is not absolutely liable if damage caused by that activity was precipitated by an act of God.
  • Not going to expand it that much farther for strict liability – if manner of occurrence is not foreseeable, strict liability cannot be imposed
  • The owner of an animal known to the owner to be vicious is strictly liable for damage caused by the animal.
  • The fact that the activity is inappropriate to the place in which it occurs is at work here: vicious animals have no place near humans. Thus, the rule of strict liability, with the absence of contributory negligence as a defense, creates an incentive for the owners of animals known to be vicious to keep such animals away from humans.
  • Mere contributory negligence, no defense But assumption of risk, including where it overlaps with contributory negligence, is a defense
    • To escape liability, the D must show that the P actively put himself in a position to bring the injury upon himself.
  • BUT, now being replaced now that we have comparative negligence, P’s recovery diminished when have overlap between the contributory negligence and strict liability, doesn’t completely bar recovery, just diminishes it (just like normal comparative negligence)
    • Reduces defense that the D has
  • Reasonable assumption of risk: look to see whether D breached a duty before applying liability
  • Ultimately, liability in negligence was established on negligent manufacturers for the injuries their products caused to people
  • Look at warranties of law***
    • Reasonably suited for use for its intended purpose
  • Eliminate requirement of privity of contract and allowed a tort suit for person’s injuries caused by a defective product

Products Liability

  • Breach of warranty: strict liability basis of recovery. No need to establish negligence in breaching the warranty.
  • P’s in these cases are suing in tort for personal injuries caused by the product – not breach of contract

Development Theories of Recovery

Strict Liability in Tort

  • Manufacturers are strictly liable for injuries caused by defective products if the user does not know of the defects.
  • Strict products liability requires four elements:
  • A defective product
  • Use of the product in the manner it was intended to be used
  • Injury as a result
  • Knowledge by the manufacturer that the product was to be used without inspection for defects.

Products Defects

Manufacturing Defect



















Discover more from Legal Three

Subscribe now to keep reading and get access to the full archive.

Continue reading