Torts Outline – 1L

Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability
Torts Outline
Prof. Ursin
II. Intentional Torts
Goals of the
Torts System
  • Accident reduction, place
    liability where it is most likely to prevent harm
  • Compensation to innocent
  • Loss distribution
    (insurance etc)
  • Fairness and justice
The failure to exercise
the standard of care that a reasonably prudent person would have
exercised in a similar situation; any conduct that falls below the
legal standard established to protect others against unreasonable
risk of harm, except for conduct that is intentionally, wantonly, or
willfully disregardful of others rights.
  • Taking of unreasonable
    risk of harm, conduct that creates unreasonable risk of harm

    • Negligence does not
      require intent
    • Failing
      to properly mitigate risk (due care)
  • Hammontree
    v Jenner
    (seizure) P originally sought
    negligence for car crash, but found that it would likely fail on the
    grounds that Jenner did everything he could to prevent unreasonable
    risk (other than giving up driving). P instead went forward on
    grounds of Strict Liability in an attempt to draw a correlation to
    product liability.

    • Magnitude
      of risk –
      As likelihood increases, duty to
      protect also increases (if seizures kept occuring)
State of mind accompanying
an act…the mental resolution or determination to do [the act]
  • Purpose to do something,
    knowledge of actions, or result is substantially certain to occur
  1. Purpose
    of causing action
  2. Knowledge with substantial
    certainty that action will occur
  • Garret
    (chair) v Dailey (boy)
    Even if there is no
    intent to cause injury or harm, intent can be inferred if the actor
    had knowledge a consequence was substantially certain to occur
Strict Liability
Liability that does not
depend on actual negligence or intent to harm, but based on the
breach of an absolute duty to make something safe.
  • Product
    manufacturers have a duty to assure that their products are safe
    when it is known that the products will be used with out inspection
    by the consumer Escola v Coca Cola (extended
    to retailers in VanderMark)
The threat or
use of force on another that causes that person to have a reasonable
apprehension of imminent
harmful or offensive contact; the act of putting another person in
reasonable fear or apprehension of an immediate battery by means of
an act amounting to an attempt or threat to commit a battery.
Latin ad+saltare, to
jump at.
  • A
    physical act | of a threatening nature {or} an offer of corporal
    injury | [which] puts an individual | in reasonable fear | of
    imminent bodily harm.
  • Requires apprehension, you
    can batter someone with out first assaulting (hit from behind)
  • Cannot be
    fear of future contact
  • A threat of force intended
    to cause contact or apprehension of contact that results in well
    founded apprehension of contact
  1. Voluntary
  2. Done with intent (desire
    or knowledge of consequences)
  3. Causing threat of contact
    that will produce harm
  • Must
    have apparent present ability to carry out (100 yards away and lunge
    at someone, not assault)
  • State Rubbish
    Collectors Assoc. (Trash Union) v. Siliznoff (Trash Collector) 1952
    • Siliznoff
      was given the trash account by his fatehr who was co-account holder
      with another union member
    • Union threatens to beat
      him up and burn his truck if he doesnt pay/give account back
    • Union sues for breach of

      • Counterclaim for ASSAULT
        fails NO IMMINENCE
The use of force against
another, resulting in harmful or offensive contact.
Intentional infliction of
harmful or offensive bodily contact.
  • Harmful/offensive contact
    with a person

    • Including an object in
      direct contact with a person (camera, cane, dog on a leash)

      • Contact with an object
        must be harmful
  • Offensive
    contact must offend a reasonable person

    • If super sensitive then
      the tortfeasor must be aware of this sensitivity (child,
      arachnophobia etc)
    • Non-offensive behavior at
      a club may be very offensive at a funeral
  • Requires
    lack of consent, if
    the contact was consented to > not battery

    • A doctor removes a scar >
      battery (maybe you liked the scar)
  • Garret
    (Old lady) v Dailey (boy)
    Contact doesn’t
    have to be directly with victim, lady fell because chair was moved >
    the fall was substantially certain to occur.

    • An intent to injure is
      unnecessary in a situation when a D willfully sets in motion a
      force that in its ordinary course causes injury.
  • Self-Defense
    – Is NOT BATTERY as long as force is met with equal force, you can
    only use deadly force when deadly threat is upon you. Cannot use a
    knife in a fist fight!

    • You CAN make
      a reasonable mistake in identity when acting in defense of
      imminent bodily harm (man accidentally shoots sheriff on his
      property during riot Courvoisier v. Raymond
A restraint of a person in
a bounded area without justification or consent. False imprisonment
is a common -law misdemeanor and a tort. It applies to private as
well as governmental detention.
An unlawful restraint of a
individuals personal liberty or freedom of locomotion.
  1. Lack of consent AND
  2. Actual confinement, or
    actual or apparent physical barriers –
    • If you are free
    to leave > not FI.
    • If reasonable means of escape >
    not FI. Unreasonable escape, jumping out window > is FI• locking someone out > not FI
  3. Conscience of confinement
    – unless it causes harm
  • Unlawful
    restraint may be effected by words alone

    • Threats of physical force
      or other duress
    • Asserted legal authority
      without actual legal authority

      • Staying to
        protect your reputation > not FI Lopez v
Seffert v LA Transit
was the original
He believed that the award
should be reversed if it “shocks the conscience/passion
Traynor dissents
(Wants to take her damages away)
pg 703
Believes that the pain and
suffering awarded was excessive that there was passion and prejudice
in the jury.
Agrees with the law, but
he disagrees and believes that the award does “shock the
LA transit will not pay the damages
they will just raise bus fares and the public will end up paying the
loss or they have insurance
The damage award is always
arbitrary and cannot be based on any real fact or data
If the defendants action
was reprehensible than maybe there should be pain and suffering
on pain and suffering: “it
is doubtful justice seriously to embarrass a defendant, though
negligent, by real economic loss in order to do honor to plaintiff’s
experience of pain” insurance should not be used either as the
pool of social funds would grow larger each year as a proportion of
national income. No amount of compensation will reverse the damages
Pecuniary damages make the
plaintiff “whole” by paying back loses
Non-pecuniary can never
make a plaintiff “whole” because you can “measure”
Its doubtful justice to
inflict that much on an uninsured individual
A social fund, ie
insurance costs, should not be depleted to pay damages that perform
no specific economic function.
• How
expensive would Health insurance be if it paid out for Pain and
(conservative Reagan appointee)
“most people would
pay a good deal of money” to be free of pain and suffering. If
there was no monetary recourse for victims in pain and suffering
damages then there would be more negligence and thus higher social
Believes tort law is a
deterrent to future negligent acts “an essential mechanism”
Tort actions are
generally about damages.
Pecuniary loss: income,
medical expenses, past and future
Non-pecuniary: Pain and
suffering, sometimes larger than pecuniary
Judge and jury have
different roles
Jury hears facts witnesses
testimony request for damages, issues a damage for the judge to
review etc
Judge issues the damages
and is thought to be the 13th juror
Judge cannot set the
amount, he can reduce it and tell the plaintiff to either accept or
the case will go to new trial
  • Compensatory
    : designed to bring a victim back to
    original state, as best possible. Two parts:
  • Economic(out-of-pocket,
    pecuniary): lost wages, property damage, medical expenses, drugs,
    future medical expenses, future lost earnings (based on life
  • Noneconomic
    pain & suffering.
  • Attorney’s
    : usually 1/3 of award. Economic damages
    alone not enough to compensate.
  • Controls
    on nonpecuniary damages: There are no simple solutions, e.g. Capping
    nonpecuniary damages to level of economic damages would hurt
    unemployed homemakers. Capping them at all would hurt those with the
    most grievous, disfiguring injuries.
  • Seffert
    v. Los Angeles Transit Lines (1961)

    Excessive Damage Award?
the award was admittedly high (she was just a file clerk and got
lots of pecuniary damages), it was not so high as to shock the
conscience and indicate prejudice on the part of the jury.
Jury and judge (13th
juror) both thought the amt of damages was OK. Appellate court had
an even higher standard of review.
Traynor says
if damage awards keep rising, it puts a strain on a liability system
based on distribution of losses. Also discourages early settlement.
He gives possible guidelines for determining excessiveness: a)
ordinarily should not exceed economic damages, b) should compare to
past awards for similar injuries. Also objected to the per diem
calculation: an opinion not based on evidence that gives jurors the
illusion that they are doing something rational.
III. The Origins
of Negligence Law
Brown v Kendall
(Dog owners with stick in the eye)
  • Kendall tried to break up
    dog fight with stick, accidentally hits Brown in the eye… ouch!
  • Can Brown recover for the:
    • Trespass = immediate
      result of defendants actions?
    • Case = Consequential
      result, domino effect?
  • No, if
    the D was acting lawfully, and unintentionally then the P cannot

    • Unless the P can prove
      that the D did not use Ordinary Care (negligence) on the part of
      the D
    • Traditionally P also
      could NOT recover at all! IF he was contributorily negligent
    • We need to shift loss
      when one party is at fault, but not if it is purely accidental AND
      the P acted reasonable under the circumstances
IV. Negligence
something an ORP would not do OR not doing
something an ORP would do in the situation under similar
if both parties are found by the
jury to be negligent the amount awarded will be reduced by the
percentage of negligence on the counter party
Standard of
Ordinary Care
  • Determined case by case,
    based on the facts, and the necessity to guard against danger.
  • The amount of care an ORP
    would use.

    • An Ordinary Reasonable
      Person is:

      • An average man of
        average intelligence or prudence
      • No excuse for mental
        disabilities (too easy to fake)
      • Physically disabled are
        held the the standard of others with the same disability, BUT may
        be inherently negligent by participating in certain activities
        (Blind person obviously is acting negligently if they are driving
        a car)
      • Exception for Children
        UNLESS they are engaging in Adult Activities

        • Borderline question:
          What is an Adult Activity?
      • NO
        Exception for elderly, they have years of experience.
      • Professionals held to
        higher standard (Doctors, Lawyers, etc)

        • ORP Conduct set by
          industry standard
  • Failing
    to use ordinary care is Negligence

    • That is conduct which
      creates an unreasonable risk of harm to others OR falls below the
      standard set by law or the professional (malpractice)
    • How do you
      determine an unreasonable risk of

      • You don’t, THE JURY does
        • Traditionally (Holmes)
          Will take the question away from the jury when
        1. There
          is clear Policy
        2. The judge knows his
          shit (lots of experience with the matter)
        3. When cases are very
          similar or repetitive
        4. When the jury is wishy
  • Modern
    view (Cardozo)

    • Always leave to the jury
    • It is obvious they will
      rule one way
  • Adams
    (Dumb Kid) v. Bullock (Trolly Owner)

    • Cost of avoidance was too
      high to prevent risk

      • NO Liability
  • Braun

    • Vacant lot wires could
      and should have been insulated cheaply

      • YES Liability imposed
  • Baltimore
    RR v. Goodman 1927 Holmes

    • Supreme Court made the
      rule that IF you cannot hear OR see Train you MUST get out of your
      car to look.
    • RR win’s on appeal
      because Goodman was negligent (didn’t take reasonable care)

      • Wanted to encourage
        industrial development
  • Pokora
    v Wabash RR 1934 Cardozo

    • Silly to impose the
      Goodman standard in every case because what if the train comes by
      the time you get back to your car
    • This question should go
      to the jury
    • Reversed and remanded
Duty to exercise
reasonable care
  • There is an unreasonable
    risk of harm IF

    • (The
      Foreseeability of Risk) x (The
      Probability of Harm) > (The
      burden of Avoidance)

      • Balancing test (Justice
        Learned Hand)
      • WHY? Because this will
        shift loss where it is most likely
    • If the
      cost on society to prevent the accident is TOO HIGH then it is
      better to let it happen because it rarely ever will
Common Carriers
  • Utmost
    Care Standard
    imposes the highest degree of
    care possible on common carriers.

    • California
      has an Utmost Care statute, judge cannot abolish it
    • New York
      Utmost care no longer needed because we
      need to balance the risk/harm with the cost

      • Economists say Utmost
        care has no proof of reducing accidents
      • Basically Strict
        Liability doesn’t make sense to use more care than necessary
      • As the risk goes up the
        care also needs to go up

        • Has it happened before?
        • How serious?
        • How much to prevent?
  • Bethel
    v. New York Transit 1998

    • Because Utmost Care is
      basically strict liability, not consistent with negligence
      balancing principles
    • As something becomes more
      dangerous obviously you need to use more care
  • Andrews
    v. United Airlines 1994 9

    • Suitcase
      falls on someones head
    • Summary judgement for
      Airline REVERSED
    • Common carriers must use
      Utmost Care

      • Jury to decide if they
        did use Utmost Care (if they didn’t they were negligent)
Per Se
Contributory Negligence established
as a matter of law, so that breach of duty is not a jury question.
Negligence per se usually arises from a statutory violation
  • Modern cases of cases of
    Contributory Negligence Per Se are more P friendly
  • To determine Negligence
    Per Se:
  1. Check
    if P is in the class of persons meant to be protected by the statute
  2. Check if the harm is of
    the type intended to be prevented by the statute, THEN
  3. Make sure the statute
    is a “Safety Standard” Life and Limb. And a breach is negligence
    per se UNLESS excused by emergency or temporary impossibility
  • Compliance
    with a statute does not always mean due care was used
  • Just because adherence
    would have prevented the harm does not always mean care was breached
  • Martin
    v. Herzog (Ct.App. NY 1920)

    • Martin P was killed by
      Herzog D in an auto collision
    • Martin CANNOT recover
      because violating a statute is Negligence Per Se (and comparative
      negligence not around yet)
    • Carzozo opinion says that
      breach of a statute is ALWAYS Negligence (Per Se)
  • Tedla
    v. Ellman (Ct.App. NY, 1939)

    • P walking along freeway
      (In same direction of traffic) on less busy side of the street are
      hit from behind
    • Statute says you MUST
      walk against traffic so you can see cars coming BUT

      • Walking against traffic
        side of the street was very busy that day and therefore more
    • Alludes
      that there may be two types of statutes (so not to fully overturn

      • Safety Standard (To
        protect life and limb): Breaking these statutes would always be
        dangerous and therefore Negligence Per Se (Herzog type statutes)
      • Rules of The Road: Can
        be broken in some circumstances if it is more dangerous to follow
    • Excuses
      to break a statute: Emergency, necessity, reasonable efforts to
      comply, efforts to comply present more risk (Tedla)
V. Proof of
of Proof:
P must prove negligence AND has
the burden of proving that the defendant’s conduct fell below the
standard of reasonable care.
For Negligence
  1. You MUST first DETERMINE
  2. THEN and only then can you
    determine IF there was a BREACH
: P must prove the danger was visible
and apparent. It is not enough that the store caused the danger
  • To infer
    negligence the P must prove that the danger was apparent AND was
    there long enough to be noticed and cleared if due
    was used
  • length of time very
    important because the danger has to be there long enough to be

    • Time can be implied by
      circumstantial evidence → Dirty floor
    • P cant recover based on
      negligent inspection and cleaning process, still must prove it was
      there long enough to be noticed
Negri v. Stop &
Shop (NY Ct.App.1985 pg87)
  • Plaintiff fell back, didnt
    hit shelf (didnt cause jars to fall). Notices broken baby food on
    the floor.
  • Baby food was
    dirty and messy (shows constructive notice
    if due care was used)
  • P has a prima
    facie case (
    Facts show at first sight,
    without further inspection)
  • Jury told “if you can
    infer that the slippery surface was caused by the jars, AND the
    store had sufficient time to find it” THEN P can recover.
Gordon v.
American Museum of Natural History (NY Ct.App.1986 pg88)
  • Slips and falls on wax
    paper at museum
  • Claims it was paper from
    concession stand
  • P failed to prove that the
    wax paper was known to be on steps OR that it had been there long
    enough to be noticed. (Probably blew onto the steps seconds earlier)
Negri and Gordon =
Different outcomes because the length of time the dangerous
condition existed.
Practice Rule (Mode of Operation)
    • VT 1998 less expansive
      → AZ 1987 more expansive
  • ?Almost
    a version of Strict Liability? :O
  • Applies to self service
    stores where you help yourself to merchandise
  • Originated for
    supermarkets where customers would drop produce, milk, etc
  • Method of business
    produces regular foreseeable risk
    bears the burden of proving steps were
    taken to avoid foreseeable risk.
v. K-Mart (US Ct.App 2
Cir. 1998 VT pg90)
  • REFUSED to
    expand the Business Practice Rule (like Chiara
    here →
  • Birdseed
    on floor at K-Mart, slip fall
  • No
    constructive notice, P sought to invoke the “Business
    Practice Rule” which applies to Self Service Method of Business

    • Your method of business
      produces, regular AND foreseeable risk
    • Meant to
      apply to self service supermarkets.
  • VT
    did not require constructive notice for
  • BUT refused
    to apply the BusPracRule, because this would make the exception the
    rule and open up any retailer that was not a
    full service retailer.
  • K-Mart wins
    because no evidence showed that their method
    of selling birdseed created a foreseeable risk
Chiara v. Fry’s
Food Stores (AZ 1987 pg91)
  • Mode of
    Operation Rule (
    Alternative to the
    BusPracRule in other juris)
  • P not req to show notice
    if the merchant could reasonably anticipate that a hazardous
    condition will regularly arise
  • Court here
    sees no reason to limit this rule to
    Produce or Pizza
  • Crème rinse spilled on
  • Jury to determine if
    “Fry’s could have anticipated that the sealed bottles regularly
    were opened and spilled.”
  • IF SO then
    the P can recover IF Fry’s failed to exercise
    Reasonable Care.
Lanier v.
Wal-Mart Stores (KY 2003 pg91)
  • “The court
    4-3 overruled a long line of cases in holding that when a customer
    slips on a wet spot…of a self-service store, the burden shifts to
    the store owner to negate inferences of negligence”
  • Feels this is too close to
    strict liability
  • ???? Shifts back to P
    bears burden to prove negligence. ????
Res Ipsa
Loquitur (Convo w/ Curious George)
Latin “The thing speaks
for itself”
  1. The accident must be of a
    kind which ordinarily does not occur in the absence of someone’s
  2. It must be caused by an
    agency or instrumentality within the exclusive control of the
  3. It must not have been due
    to any voluntary action or contribution on the part of the Plaintiff
    (cannot be Contributory Negligence)
CA give more weight
to Res Ipsa. Creates an assumption affecting the burden of proof.
The jury will be told to Find Negligence, UNLESS the D has shown
enough evidence that they Were Not Negligent.
  • No evidence OR less than
    enough to disprove → Then D was Negligent P wins
Byrne v. Boadle
  • Barrel falls out of
    window, hits P in the head
  1. Barrels
    dont normally fall? YES dont fall out of windows unless someone is
  2. Exclusive control? YES It
    is the duty of the warehouse to keep barrels from falling
  3. Contrib Negligence? NO the
    P did not Contrib by walking past window.
Escola v. Coca
Cola Bottling Co.
  • Bottles came from manuf
  • Reused by distributor, not
    subjected to testing for defects

    • Use balancing test for
      the cost of avoidance/testing
  • Cases
    can be abused during shipping
    Expanded Res Ipsa Loquitur
    Manufacturer Strictly Liable. But damages
    limited, pain & suffering not to exceed pecuniary

    • Jury said yes this is a
      proper use of res ipsa loquitur
    • Bottle wouldn’t
      ordinarily explode
    • Bottler had exclusive
      control (debatable)
    • P did not contribute to
In Brown v Kendall
it was about shifting loss
Now with Escola v Coca
Cola it is about distributing loss
D more likely to be
insured, or able to distribute losses by raising prices
Reasons for
Strict Liability
  • The safety
  • The application of
    liability should make manufacturers inspect more carefully
  • Liability costs are
    shifted from plaintiff to defendant, in old days had to sell farm
    and pay plaintiff
  • Most manufacturers have
    insurance for liability and so the public ends up paying anyways
  • Traynor wants
    non-pecuniary not to exceed pecuniary
  • At the time Traynor had
    said there should be Strict Liability but no court had yet found it
    to be so
Vandermark v.
Ford Motor
  • Breaks locked up crashed
    injured Vandemarks
  • Problems with warranty
    law, the manufacturer says look it was the retailer who installed
    Traynor says
    retailers are subject to strict liability, because they are the only
    party the consumer works with.

    • Retailer liability
      makes safety in two ways

      • Retailers can pressure
        manuf to create safer products (they can also sue the manuf, or
        threaten to not sell their products)
      • They can inspect the
        products in some cases
      • Compared to the
        consumer, the retailer can prevent accidents more than the
Elmore v.
American Motors 1969
  • Rambler was purchased,
    driveshaft falls of the car, car swerves across road crashes into
  • Bystander
    had no privity and wasn’t even a user
  • No court had ever allowed
    the bystander to recover.
  • But Peters says if
    anything the bystander should be entitled to greater protection,
    because consumers can at least inspect the product.
Strict Liability
Spread Quickly to:
  • Retailers
  • Then to lessors BOTH short
    AND long-term leases
  • Bystanders because they
    are otherwise defenseless
  • STOPs AT SERVICES that use
    defective products

    • Manufacturer still
      strictly liable, service provider NOT LIABLE
Says Strict
Liability rule provides greater incentives for safety than
negligence rules do
Three Types of
Defective Products
  1. Manufacturer
    Defect –
    off the assembly line bad
  2. Design
    Defect –
    dangerous AS designed
  3. Warning/Instruction

    Failed to give adequate warning of danger “do not eat/touch/stand
Barker Two
Pronged Test For Defectiveness
  1. Excessive Preventable
  2. Ordinary consumer
    expectations when used in an intended or reasonably foreseeable
NOW TRIUMPHS for defects !!!
  1. One who sells any
    product that is defective/dangerous is subject to liability IF

    1. seller is engaged in
      business of selling such product (merchant) AND
    2. it is expected/does
      reach the consumer without substantial change in condition of the
  2. The
    rule in (1) applies even though

    1. The seller has
      exercised all possible care in manufacture of product
    2. the is no privity and
      the user has no relationship with the seller
Ybarra v.
Spangard (1944) Supreme Ct.
  • P goes in for
    appendectomy, comes out with injured arm
  • Not sure WHO injured him
  • Without Res Ipsa is could
    lead to “conspiracy of silence”
  • HOLDING When P gets
    an unusual injury to an unrelated part of the body while unconscious
    ALL the D who had interaction CAN be held LIABLE unless they can
    show they were not negligent. Meaning anyone who even stepped foot
    in the room will have burden of proof against negligence
  • NOTE Ybarra is a VERY
    EXPANSIVE view of Res Ipsa
Caveat – Make
sure you SUE EVERYONE, because if you miss a possible responsible
party you may loose out on recovery →
Inouye v. Black
  • Tries to use Ybarra
  • Metal wire from neck
    surgery breaks off later and causes injury
    1. P
      contrib neg? NO
    2. Doesnt ordinarily occur?
    3. Dr. in exclusive control?
      NO here lies the problem!
  • P only
    sues Dr.
  • HOLDING Dr. wins
    because P should have sued everyone, manufacturer, hospital, staff
Traynor says :: BE
VERY CAREFUL probably SHOULD NOT USE res ipsa loquitur OUTSIDE
MEDICAL profession →
Fireman’s Fund
Am. Ins. Co. v Knobbe
  • Hotel burns
  • Ins Co tries to sue hotel
    guests under Res Ipsa
  • HOLDING summary
    judgement for D, court does not wish to extend Ybarra this
    far because where would you draw the line?
VI. Medical
must follow
the ordinary
medical/professional standard of care
  • Ordinary
    Medical Standard
    is set by the industry
    according to what an ORP Doctor would/should do
  • Traditionally
    expert testimony had to be “same” field
  • NOW
    it is “similar” field
  • Traditionally
    same locale
  • NOW
    national standard – because of
    AdvInModTech and “conspiracy of silence”
  • Takes into account
    emergency situations
  • DONT need expert testimony
    if obvious to jury ie left scalpel in stomach
There must be
consent for medical procedures
  • Doctor can remove scar
    without asking (tumor would be different in emergency)
  • WARNINGS of the procedure
    – Dr MUST give warnings of Ordinary Medical Standard

    • CA is more strict, must
      give ALL warnings no matter what, ALL alternate procedures, AND
      must be in lay terms
  • P
    has burden to prove that lack of information swayed
    them to the procedure. Judged by ORP standard At Time of Surgery NOT
    after surgery for obvi reasons
  • Sheeley
    v. Memorial Hospital

    • Sheeley
      injured at birth sues 2nd
      year family practitioner.
    • Traditional Rule refused
      expert testimony from ObGYN because she was only a “similar
  • Soares
    v. Vestal

    • Court refused testimony
      from “over qualified” witness
    • AND because he hadnt
      practiced since 1975 (VA requires within 1 year)
  • Buja
    v. ?
    Overrules Soares

    • Asserts
      national standard
VII. “No Duty”
  1. Introduction
    1. First establish if there
      IS/ISN’T a duty

      1. Looking at cases where
        the D claims he did not owe a duty
    2. There
      seems to be a clear long-term movement towards recognizing a
      general duty of due care UNLESS there is an exception

      1. As
        opposed to traditional rules only imposing duties for special

        1. Innkeeper, common
          carriers, maufacturers etc

      1. Usually no
        duty to rescue
        a third party ==>

        1. Nonfeasance is a
          failure to act, DO NOTHING

          • Classic example baby
            on train tracks
          • Or drowning surfer
          • BUT if you start to
            help and screw up →
      2. Misfeasance,
        started to help but SCREWED UP

        1. Didn’t
          use duty of due care/negligent
        2. Rescue baby but then
          carelessly drop it
        3. Rescue surfer, but pull
          him by the ear now he is deaf

          • Exception
            to this → Tarasoff
  1. Affirmative

    1. Tarasoff v. Regents of
      the Univ of California

      1. Tarasoff
        – Dr. has an affirmative duty to
        warn third parties of danger

        1. Expands exceptions to
          the no duty rule
      2. Podar
        tells University Psych he is going to kill Tatiana Tarasoff
      3. Psych doesnt warn
      4. HOLDING
        Dr Liable to warn third party of danger ie
        “Tarasoff Rule” simply because of special relationship to ONE
        party (the killer)
      5. California
        and others are steadily abolishing the no duty rule (with
        exceptions like Tarasoff), but still hard to draw a bright line.
      6. Some have accepted or
        expanded, others like CA have adopted limitations like:

        1. Cole v. Taylor –
          Murderer tries to sue Shrink for not stopping her, CA court calls
          BS rejects Tarasoff applications here
      7. Increased
        Duties are Judge made standards like:

        1. common carriers →
          utmost care
        2. manufacturers →
          strict liability
        3. doctors → ordinary
          medical practice
      8. AFTER

        1. Dr have no duty to warn
          others of an infected person, ie AIDs, plague, leprosy, etc
        2. POLICE – in Tarasoff
          held the murderer but then released him also NO DUTY
  2. Landowners
    and Occupiers

    1. Traditional Rules
      1. Invitee ::
        WORKER for business, OR open to PUBLIC. the
        highest held visitor {
        Invited ≠ Invitee } must take affirmative action to fix a danger
        → Duty for Almost Anything. Must actively seek out dangers,
        liable even if danger was unknown.
      2. Licensee ::
        FRIEND, on the property with permission. Land
        NOT PUBLIC. Duty to make safe KNOW DANGERS, (No duty to discover
        dangers) AND NO wanton harm, or concealed traps, but
        also due care if you are running your lawnmower.
      3. Trespasser
        :: traditionally owed no
        duty, someone who enters land with no permission. Sometimes there
        is implied permission ie sidewalk for solicitor
        BUT NO wanted
        harm, or concealed traps
    2. MODERN
      RULE (Some Jurisdictions)

      1. No distinction, everyone
        owed a duty EXCEPT

        1. Flagrant trespassers
          intending to commit a felony
    3. CHILD
      TRESPASSERs Special Rule:

      (CA DOESNT USE) A possessor of land is subject to liability for
      physical harm to children trespassing thereon caused by an
      artificial condition upon the land IF

      1. the
        landowner knows children are likely to trespass,
      2. landowner
        knows the or should have know that the condition could cause harm
        or death to such children,
      3. the
        children are too young to discover the dangerous condition,
      4. the
        balance of eliminating the danger v the risk to children
        [BALANCING Test], AND
      5. the landowner fails to
        exercise reasonable care to eliminate the danger
    4. Recreational
      Use Statutes

      1. Most states limit
        liability for land used in recreation (natural dangers)
      2. Others (Like CA
        Suprme.Ct) Abandoned suitability, any open property owner liable

        1. This means
          paradoxically that a thief who isnt recreating is owed a duty of
          due care
        2. A child who is
          recreating is covered under RUS and is not owed due care!!!! (No
          suitability excuse so that means a constr site is a “Recreational
          Area” because child is recreating)

          • Legislature wont
            change this because there is no money in it, it would take a
            lobby group to convince the legis to change it
    5. Rowland
      v. Christiansen

      1. Abolished
        three types of distinctions and everyone is owed due care
      2. Some states have only
        abolished licen/invit but kept trespass distinction
      3. HELD
        that landowners owe a duty of care to all
        on their property

        1. Except flagrant
          trespassers, with intent to commit a felony therein
    6. Carter
      v. Kinney (MO 1995)

      1. Kinney hosted a bible
        study for the church
      2. Carter slips and falls
        on ice from night freeze
      3. Is carter an Invitee
        (owed full duty of care) OR Licensee (No duty to warn, just no
        traps or wanton)
      4. HOLDING Licensee D wins,
        because social guests are licensees in MO. No business motive for
        P to be there AND it was not open to the public!
    7. Heins
      v. Webster County (NB 1996)

      1. Man visits daughter at
        hospital (“friend”), debatable to discuss working as Santa
      2. Slips on ice in doorway
      3. ISSUE should the court
        abolish invitee/licensee distinction?
      4. HOLDING
        yes Abolish Distinction Inv/Licnsee. Because
        focus should be on the foreseeability of the injury, not the
        status of the person who enters the property.
      5. DISSENT says we shouldnt
        impose a duty where traditionally there isnt one
    8. Duty
      to protect against Crime pg210

      1. Threshold question,
        if you had prior similar crimes then you have a duty to protect

        1. California says thats
          arbitrary, first time crime happens on premises—there may be
          lots of crime in surrounding area. and now your not liable just
          coz it never happened here before
        2. CA say no no no the
          issue lies on foreseeability

          • Now it goes to the
            jury, a very expansive view, jury decides if it is foreseeable
          • CA Supreme Court pulls
            it back – Mere foreseeability not enough, there must be a very
            high degree of foreseeability
          • High degree of
            foreseeability is rarely met without prior similar crimes.
            Almost requires similar SAME crime
          • Court
            clarifies it just has to be similar crimes, but doesnt always
            even need a prior…but usulaly do
      2. Posecai
        v. Wal-Mart Sores, Inc. →
      3. Four
        (4) Different Rules (in diff juris)

        1. Specific Harm Rule –
          Landlord must be aware of specific imminent harm
        2. Prior Similar Incident
          Test, Rule – Examine recency, frequency, and similarity of
          prior similar crime on premises OR nearby
        3. Totality of Harm Rule –
          Foreseeability under all circumstances, lack of prior similar
          crime doesnt stop liability (criticized as imposing a “duty to
        4. Balancing Test Rule –
          the degree of foreseeability must outweigh the cost to prevent
          harm. High degree of foreseeability if heavy burden to prevent.
      4. Ann
        M v. Pacific Plaza (Pacific Beach
        Nearby Bank had been robbed,
        purse snatching, pantsing.
        Plaza said we have no record
        4 rules and apply

        1. Aware of Imminent harm?
        2. Prior Similar? Toss Up,
          shoulda known
        3. Foreseeability always?
          NO not clear at time of rape
        4. Balancing test? Goes to
          jury, almost always requires prior similar (2)

          • HOLDING
            No duty owed to Ann M 🙁

            • Defendants
              did not have notice of prior similar incidents, but they do
              have duty to discover prior events Records
              show that they didnt have priors similar (doesnt have to be
              identical, just similar) Council
              for Ann M conceded that they were not similar crimes (Lost
              because of this probably)
  3. Emotional

    1. Traditional Duty Based
      Rule of ED

      1. Developed in the 19th
      2. Said man up, dont be a

        1. Used to require
          physical harm
        2. then slight impact
        3. then MODERN (just fear)
      3. Concerned
        about fraudulent claims
    2. Modern

      1. Direct Victim
        1. Reasonably foreseeable
          • Leg
            in a box OR telegram – husband’s dead…J/K
        1. Fear
          for your own safety/physical harm
        2. Expanded to fear for
          others safety TWO VIEWS →

          • Dillon
          • Thing
      1. Innocent

        1. Mother watching child

          • MOST COURTS adopt Zone
            of Danger

            • Mom can recover only
              if she was in the immediate zone of physical danger
      2. Loss
        of consortium

        1. Husbands and wives can
          generally recover
        2. Parents
          can recover for children

          • BUT children cannot
            recover for lost parent (CA and most others)
    1. Dillon
      v. Legg

      1. First court to abandon
        traditional rule, looks at following factors

        1. Was the P close to the
          accident? Or far away?
        2. Is the ED a direct
          result of the accident? Or result of hearing from others after?
        3. Were the P and victim
          closely related? Ie Thing test
    2. Thing
      v. LaChusa

      1. HOLDING recovery only IF
        1. the
          observer is a closely related family member

          • Blood, marriage,
            relatives living in household, parents, siblings, children, and
        2. Observer
          must be present at the scene AT THE TIME accident occurs AND be
          aware of the harm being caused
        3. Observer must
          suffer serious ED greater than disinterested witness
    3. Gammon
      v. Osteopathic Hospital of Maine, Inc. (Maine 1987)

      1. Package came in mail,
        supposed to be deceased’s belongings
      2. instead he got a severed
      3. HOLDING Damages
        can only be awarded when such harm reasonably could be expected to
        befall the ORP with average sensitivity

        1. base decision on
          foreseeability, IS it foreseeable that severe ED could result?
  1. Economic

    1. Two categories
      1. No physical harm to
        anyone or anyones property

        1. ex. An accounting firm
          gives the wrong balance sheet to a business.
        2. A third party makes a
          deal with the business that is bad because of the accounting
        3. CAN they SUE the
          ACCOUNTANT even though no K/privity?

          • Some Cts yes some no?
        4. Lawyer
          files late → Now P cant sue?

          • Malpractice held to a
            competent lawyer standard
          • Some Cts still require
  2. Immunities
    1. Contributory
      Negligence (Abolished by)

      1. PURE Comparative
        Negligence (CA)

        1. California adopted
          “PURE Comparative Negligence”

          • Li
            v. Yellow Cab 1975
          • P can recovery even
            if he is 99% responsible

            • BUT will only
              recover 1% of the damages
      2. Modifies
        Comparative Negligence (Other juris)

        1. P cannot recover if
          he is 51% at fault
    2. Must
      have Physical harm to person or property

      1. You cannot recover for
        economic loss here unless the P is harmed.
      2. Businesses in a disaster
        area cannot sue for lost business – unless super foreseeable
      3. Interfamily immunity –
        some states still have, cant sue family.

        1. CA Abolished as did
          most others
      4. Governmental
        immunity is handled by specific codes on what is allowed
    3. Will
      liability waivers be enforceable? Tunkle Factors →

        1. Engages
          in a service of great importance to the public
        2. The business will
          perform it service on any member of the public
        3. the business uses the
          importance of its service as an unfair bargaining chip
        4. before performing the
          essential service the business provides an essential contract
          that you must sign, and will not allow you to pay a fee to be
          protected from negligence
        5. As a result of the
          transaction the user is placed in the care of the business and
          subject to the rick of the businesses negligence.


  1. DONT LOOK TO the
    PLAINTIFF’s assumption of risk, ASSESS the DEFENDANT’s DUTY first!
  2. Is there a duty (if so,
    what is the duty? (primary assumption of risk)

    1. No Duty for SPORTS

      1. Duty rules are made by
        the courts on a case by case basis, as a matter of law. Duty rules
        apply to a particular category of activities (ie Sports) and are
        determined based on the parties relationship too the sport
        (Players, Coaches, Spectators etc). No duty rules are not based on
        specific facts.
      2. After a no-duty rule is
        adopted the question will STILL go TO JURY to apply the no-duty
        rule to the particular facts of the case. UNLESS the judge belives
        the jury could only reach one conclusion
    2. Intentional
      Injury/Recklessness Rule for “Sports”

      1. “Whether
        [a] defendant has a legal duty to avoid such conducts or protect
        the plaintiff against risk of harm…depends heavily upon the
        nature of the sport [and] also…on the defendant’s role in, or
        relationship to, the sport.”
      2. There are several
        different categories of defendants
      3. Policy decisions aim to
        avoid “alter[ing] the nature of the sport by deterring…[a
        part’y] vigorously engaging in [the sport] activity”

        1. Policy to avoid a
          “Chilling Effect” on the sport
    3. Application
      to the Categories of Defendants

      1. Co-Participants: No Duty
        (Other than not to intentionally injure)

        1. Knight v. Jewett

          • Super bowl touch
            football game, girl falls down, finger stepped on
          • No duty to protect
            between players
          • Players on have a duty
            not to intentionally harm AND not to engage in conduct wildly
            outside the ordinary range of activity for the sport (ie No
            tackling in a Tennis game)
      2. Coaches:
        No Duty (But cannot be reckless)

        1. Kahn v.
          East Side Union High

          • 14
            year old diver, tells coach she is afraid to dive. Coach makes
            her dive. She breaks her neck on a practice dive into shallow
            racing water.
          • No duty, coaches role
            is to push players to excel. A duty would chill this

            • Remanded to determine
              if coach was reckless
      3. Owners
        of Sports Facilities: Probably Not

        1. Ratcliff v. San
          Diego Baseball Club

          • Limited duty to owner,
            (enough netted seats for people)
          • No duty for player who
            accidentally threw bat
        2. Connoley
          v. Mammoth Mountain Ski Area (NO DUTY)

          • Signed a waiver form
            ticket (not enough to establish zero liability)
          • Skied into a pole
          • HOLDING
            Mammoth entitled to summary judgement because P failed to
            establish a duty owed to him.
                  1. Cause
                    in Fact
We need to consider
two factors in Tort Liability
  1. Cause
    in Fact
    – Facts
    proving that the defendant’s conduct was the cause of the
    plaintiff’s harm in a physical or scientific way

    1. The court consistently
      denies liability in tort when the defendants negligent actions are
      not the cause of the plaintiffs injury
    2. “BUTT FOR” But
      for X then Y would not have occurred
    3. The defendants actions
      NEED NOT BE THE ONLY CAUSE, just one of the causes
  2. Proximate
    or Legal Causation

    – Does the defendant have a valid legal argument that the
    circumstances of the event would prevent him from being liable for
    damages to the plaintiff

    1. Polemis (1) Allows UH (2)
      Doesnt address UP
    2. Wagon mound (1) No
      recover for UH
    3. Cardozo (Palsgraf) (1)
      Yes to UH (2) No to UP
    4. Andrews (Palsgraf D) (1)
      Yes to ← UH (2) Yes UP included
v. City of Rochester
App NY 1919 pg340
  1. Defendant supplied water
    to the plaintiff maintaining two pipelines, lines got crossed sewage
    in drinking water

    1. Plaintiff became ill from
      Typhoid fever which can be cause by a number of elements
      1. Drinking
        polluted water
      2. Raw fruits and veggies
        that were grown using human excrement to fertilize the soil
      3. Consumption of shellfish
        (Not common
      4. Infected Milk and veggie
      5. Houseflies in certain
      6. Contact with infected
      7. Ice with typhoid bacilli
      8. Fruits Veggies etc
        washed in contaminated water
      9. UKNOWN vague medical
    Judge does not
    feel this rule is so inflexible as to require the P to disprove all
    other causes

    1. “If
      two or more possible cases exist, for only one of which a defendant
      may be liable, and a party injured establishes facts from which it
      can be said with reasonable certainty

      that the direct cause of the injury was the one for which the
      defendant was liable the party has copmplied with the spirit of the
    2. It is sufficient for the
      P to prove with Reasonable Certainty that the direct cause of harm
      resulted from the D actions
Suppose that Rochester
could show that of the 58 infected, 10 woulda got anyways.
  • UNDER Proportional
    Liability each plaintiff would get 48/58ths of the award
Stairwell cases:
  • Wolf
    v. Kaufmann
    NY: P falls down the darkly lit stairs and dies.

    • HOLDING case dismissed,
      simply a conjecture that the darkness was the cause in fact. No
      proof that the darkness was the but for cause.
  • Hinman
    v. Sobocienski
    AL: Tenant found injured at bottom of dark stairs, trial court
    directed verdict for D.

    • HOLDING Reversed P
      wins. “When a resident is then found injured at the bottom of
      those stairs, a reasonable inference is that the dangerous
      condition more than likely played a substantial part in the

      • Probably held for
        public policy, because the landlord is in the best position to
        remedy the unsafe premises by providing better lighting, and can
        also distribute “losses” by raising rent.
  • Asbestos
    courts only allowed limited partial preemptive recovery

    • MODERN courts allow you
      to recover 100% IF you can show that you have a +50% chance of
      developing cancer caused by the asbestos.

      • Some suggested
        probabilistic recovery → 20% chance of disease = 20% recovery
Shifting the
Burden of Proof, and Market Share Theory:
  • Both
    CA and NY adopt that Liability is SEVERAL ONLY, meaning only
    responsible for their own portion of liability.

    • In contrast to Joint &
      Several Liability (JSL) where each D could be liable for 100% of
      the recovery if other D’s are insolvent.
    rule: Requires that you haul in the MAJORITY of the Market (Add all
    Ds together, if each has 1% of the market then 51 manufacturers to
    equal 51% of the market). Each manufacturer is responsible only for
    his share of the market, often leading to less than 100% recovery
    for the P.

    • IF you disprove your
      pill/liability as a manufacturer YOU ARE NOT LIABLE
  • New
    YORK rule: Does NOT need a majority of the market as D’s. BUT you
    are LIABLE even IF you DISPROVE your product caused harm.
  • Hymowitz
    v. Eli Lilly Co.
    pregnant women take
    drug, daughters get sick then daughters sue.

    • Allowed recovery based on
      the ^^ market share theories. Refuses to hold the manufactures
      Joint & Several, and holds them Several only (independently
      liable for their own share of the market).
  • Sindell

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