Intentional Torts

Battery:
• A definition (not all-inclusive but sufficient for our purpose) of a battery is the
intentional infliction of a harmful bodily contact upon another.
• To constitute an assault and battery it is not necessary to touch the P's body or even
his clothing when it is done in an offensive manner, is sufficient
• CONTACT WITH BODY AND THINGS CONNECTED TO BODY
• Contact has to be offensive in some ways - element of contact

Intent:
1.Purpose
2.Knowledge with substantial certainty
You only need to find one side of intent
for someone to be liable.

Garratt v. Dailey:
• Boy (5) deliberately pulled out lawn chair. Intent is doing something with the substantial
certainty that a harm will occur.
Issue:
• Has the tort of battery occurred- did he have intent?
Rule:
• Battery required Intention and harmful bodily contact
Intent:
1.Purpose OR
2. knowledge with substantial certainty

Fisher v. Carrousel Motor Hotel

• Plaintiff goes to meeting and Defendant takes plant and tells him no negros
Issue:
• Did battery occur, was there contact
Rule:
• To constitute an assault and battery it is not necessary to touch the P's body or even his clothing
when it is done in an offensive manner, is sufficient
• CONTACT WITH BODY AND THINGS CONNECTED TO BODY
• Contact has to be offensive in some ways - element of contact
Outcome:
• Forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to
constitute a battery
Assault
• Defined as an intentional threat or attempt, coupled with apparent ability to do bodily
harm to another, resulting in immediate apprehension of bodily harm. No bodily contact
is necessary

Vetter v. Morgan
 • P injured when van ran off by Morgan's father and driven by Dana Gaither- Morgan screamed
obscenities.
Issue:
• Do we have assault
Rule
• Assault is defined as an intentional threat or attempt, coupled with apparent ability to do bodily
harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is
necessary
Outcome:
• There was evidence of a threat, Vetter said Morgan threatened to take her from van. Words can
constitute an assault if “together with other acts or circumstances they put the other in
reasonable apprehension of imminent harmful or offensive contact with his person”

False Imprisonment:
• Intentional, unlawful and unconsented restraint (all elements, which modify the element
constraint) by one person of the physical liberty of another
Rule of confinement, 5 elements (28): need all
1. Actual or apparent physical barriers
2. Overpowering by physical force, or by submission to physical force
3. Submission to a threat to apply physical force to the others person immediately upon the
other's going or attempting to go beyond the area in which the actor intends to confine them
4. By submission to duress other than threats of physical force where such duress is sufficient
to. Make the consent given ineffective to bar the action ( as in threat to inflict harm upon
members immediate family
5. By taking a person into custody under an asserted legal authority

Hersbst v. Wuennenberg
• P claimed D would not let them leave her house after they came to purge the voter lists by
challenging the registrations of people whose names were not on the mailboxes at the
addresses they registered.
Issue
• Did Wunnenberg subject them to confinement
Rule
Rule of confinement, 5 elements (28):
1. Actual or apparent physical barriers
2. Overpowering by physical force, or by submission to physical force
3. Submission to a threat to apply physical force to the others person immediately upon the
other's going or attempting to go beyond the area in which the actor intends to confine them
4. By submission to duress other than threats of physical force where such duress is sufficient to.
Make the consent given ineffective to bar the action ( as in threat to inflict harm upon members
immediate family
5. By taking a person into custody under an asserted legal authority
Outcome
• The P's should have attempted to gather information on whether they could leave, and if there
was any information on whether she was confining them. You can't predict false imprisonment
on the unfounded belief that they were constrained.
Dupler
 • Holding: Implied threat of actual physical restraint
• P testified D had ordered her in a loud voice to remain seated
• Was berated, screamed at, and hollered at
• D was blocking the door, shouting and screaming, 2 against 1

Intentional Infliction of Severe Emotional Distress: IIED (all elements must be met)
• Outrageous conduct by the defendant
• The defendant’s intention of causing, or reckless disregard of the probability of causing
emotional distress
• The p suffering severe or extreme emotional distress
• Actual and proximate causation of the emotional distress by the defendant's outrageous
conduct

Eckenrode v. Life of America Insurance Company

• P filed diversity complaint to recover damages for severe emotional injury suffered as a result of
deliberate refusal from D to pay proceeds of the insurers policy covering her husband’s life.
Issue
• Whether P may recover damages for severe mental distress allegedly suffered as a result of the
D’s conduct
Rule
Intentional Infliction of severe emotional distress: IIED
• Outrageous conduct by the defendant
• The defendants intention of causing, or reckless disregard of the probability of causing
emotional distress
• The p suffering severe or extreme emotional distress
• Actual and proximate causation of the emotional distress by the defendant's outrageous
conduct
Outcome
• Life of America’s attempt to force a settlement from Eckenrode when she was in dire financial
circumstances constituted outrageous conduct.

Dana v. Oak Park Marina (Ny 1997)

• P alleged D had filmed over 200 female patrons going to bathroom in guise of security camera
for marina theft. Didn’t intent for this behavior to get out
Issue
• New York does not recognize a cause of action for the reckless infliction of emotional distress
• Hidden behavior does not mean to cause intentional emotional damage because its
supposed to be hidden
Rule
Recklessness of tort has four elements:
• “(i) extreme and outrageous conduct;
• (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional
distress;
• (iii) a causal connection between the conduct and injury;
• (iv) severe emotional distress [emphasis added]

Outcome
 • Reckless conduct is encompassed within the tort denominated intentional infliction of
emotional distress. The court reversed previous decision and agreed emotional distress had
occurred

Trespass to Land:
• Every unauthorized entry upon land of another although without damage constitutes
actionable trespass (38) (1948)
• Intrusion which invades the [possessor's protected interest in exclusive possession,
whether that intrusion is by visible or invisible pieces of matter or energy which can
only be measured by a physicist (1959)

Amphitheaters Inc Vs. Portland Meadows

• P owned movie theater and D owned race track that had lights for night racing. P said D
trespassed to land and nuisance saying the lights interfered with the movie.
Issue
• Does light constitute a trespass
Rule
• Every unauthorized entry upon land of another although without damage constitutes actionable
trespass
Outcome
• Portland Meadows is not liable, it could be a nuisance, but not trespassing
• “Actions for damages on account of smoke, noxious odors and the like have been
universally classified as falling within the law of nuisance
• Trespass to land is an intentional tort and the plaintiff must prove that the defendat intended
that that physical facts constituting an entry would be a result of the defendant’s actions
• Showing damage isn’t enough to show trespass, at time they were just concerned with entry of
land

Martin v. Reynolds Metal Company

• P claimed the D was using chemicals that would become airborne and land in their land, making it
bad to grow crops. Enough evidence to show it had landed in the farmers land, and they were
awarded 91k
Issue
• Are fluoride particles considered a trespass
Rule
• Intrusion which invades the [possessor's protected interest in exclusive possession, whether
that intrusion is by visible or invisible pieces of matter or energy which can only be measured by
a physicist
Outcome
• Yes. The settling of invisible fluoride compounds on a possessor’s land is a sufficiently direct
invasion to support a trespass claim

Consent:
• One who effectively consents to conduct of another intended to invade his interests cannot
recover in an action of tort for the conduct or for harm resulting from it.”
Defense of consent:
• If the person consenting to the conduct of another is induced to consent by a substantial
mistake concerning the nature of the invasion of his interests or the extent of the harm to be
 expected from it and the mistake is known to the other or is induced by the other’s
misrepresentation' the consent is not effective for the unexpected invasion or harm.

O'Brien v. Cunard
• P sued D for battery and negligence for injuries arising from a vaccine she received. D says they
didn’t commit a tort, my defense is you consented
Issue
• Issues: Whether there was any evidence to warrant the jury in finding that the D, by any of its
servants or agents, committed an assault on the P.
Rule
• If P’s behavior was such as to indicate consent in her part, D was justified in his act, whatever
her unexpressed feelings may have been
Outcome
• There was no conduct by the plaintiff to indicate she did not want the vaccine, and viewing D’s
conduct in the light of the surrounding circumstances, it was lawful and there was no evidence
tending to show that it was not.
• D was not liable

Overall v. Kadella
• Fight between two hockey members - D broke P's bones around eye and knocked him out.D
claims P struck him in the back during handshakes. P was sitting on the bench far away from the
fight when d wacked him. Defense, you other hockey player consented to this hockey game so I
didn’t commit battery
Issue
• Was there battery?
Rule
• The general agreement that an intentional act causing injury, which goes beyond what is
ordinarily permissible, is an assault and battery for which recovery may be had
Outcome
• P did not consent, so no defense of consent, so tort liability, therefore defendant is liable

McPherson v. McPherson
• P appeals from judgment of Superior Court for denying her claims of assault and battery.
• Arisen from claims her husband gave her a std from an affair.
Issue
• Was there the tort of battery
• Main issue: Defense of consent, has that been rendered by misrepresentation
Rule
• One who effectively consents to conduct of another intended to invade his interests cannot
recover in an action of tort for the conduct or for harm resulting from it
• Defense of consent: If the person consenting to the conduct of another is induced to consent by
a substantial mistake concerning the nature of the invasion of his interests or the extent of the
harm to be expected from it and the mistake is known to the other or is induced by the other’s
misrepresentation' the consent is not effective for the unexpected invasion or harm.
Outcome
• Consent was still valid, as he did not know he had hpv, therefore he didn’t misrepresent that.
That misrepresentation didn’t occur in this context
 Privileges
Self-Defense and Defense of Others:
• Defense to battery is self defense
Defense of Property:
• One may use reasonable force for protection of his property
• You may protect your land with reasonable force, but you can't take human life or inflict great
bodily damage
• Necessity:
o No other alternatives
o Emergency, Special force to preserve human life
o Temporary

Tatman v. Cordingly
• P sued D for assault and battery, jury goes to D for self-defense which P appeals
• P (66) fought with D (20s) P ends up in hospital
Issue
• Did the Defendant exercise reasonable self defense
• P appealed to two grounds- faulty jury instruction, lack of sufficient evidence
Rule
Elements of Self Defense
• You have to believe that you are in danger and to protect-subjective
• Belief must be reasonable - objective
• Proportionate force
• Person who is battered by another has the privilege of self-defense but that privilege ends when
the aggressor is disarmed or helpless, but that ends when the aggressor is disarmed or helpless
• When all the danger has clearly passed
Outcome
• Person must believe that a real danger exists, but that belief must be reasonable
• The standard to be applied in determining if there is the apparent necessity to act in
self-defense is both subjective and objective.
• Rule assumed for self-defense when P kept reaching for gun

Issue 1
Issue:
Did the judge mess up instruction of self defense that the jury were unable to understand and gave the
wrong verdict
Rule:
Instructions 7,8, and 9 are rule of self defense
Application:
Not quite correct, instruction 7 talks about subjective belief but not reasonable belief, but instruction 8
talks about honestly and reasonable believed. The instructions mostly comport with the law where they
don’t comport with the law we're ok
Conclusion:
They're ok- good enough - the standard, the fact the instructions were prejudiced didn’t affect the jury

Katko v Briney
 • Plaintiff shot by spring gun set up by defendants after breaking and entering the house to steal
antiques
Issue
• Whether an owner may protect personal property in an unoccupied boarded-up farm house
against trespassers and thieves by a spring gun capable of inflicting death or serious injury
Rule
• One may use reasonable force for protection of his property
• You may protect your land with reasonable force, but you can't take human life or inflict great
bodily damage
• Owner of premises is prohibited from setting out spring guns or like devices to willfully or
intentionally injuring a trespasser by means of force that either takes life or inflict great bodily
injury
Outcome
• No appropriate use of defense of property by spring gun
• Instruction 6, Applying to the part of great bodily inflict over trespass. The P caused great bodily
harm.
• The exceptions were properly overruled.

Teel v. May Department Stores Co.

• P's sister in law was in midst of divorce, her new boyfriend said she could charge to his account
under "Mrs. Foster" store had called real mrs foster who said this was not authorized. They stop
the women and get them return items. However then the D forces them to stay until they sign a
confession which went beyond his ability.
Issue:
• May an owner who has been dispossessed of property continue to detain the person who took
it after the owner has secured the property?
Rule
• An owner who has been dispossessed of property may not continue to detain the person who
took it after the owner has secured the property.
Outcome
• Under False imprisonment definition of confinement based on Herbst - it was not false
imprisonment because they didn't try to leave
• The business could keep them to get their property but once the property was returned then it
was unlawful to keep them
• Not liable for the first detention, but the second after the return of property was unlawful to
keep detaining them to coerce a confession

Ploof v. Putnam
• P was sailing and was caught in a terrible storm. He tied his boat onto D's property, who's
employee then untied, and it resulted in P and family being injured.
Issue
• Did the plaintiff trespass
Rule
• Necessity: Applies to special force to the preservation of human life. One assaulted and in peril
for his life may run through the close of another to escape from his assailant
Outcome
• Entry upon land of another may be justified by necessity, and that the declaration before us
discloses a necessity for mooring and sloop.
 Vincent v. Lake Erie Transp.
• P sued for damage to his dock caused by defendant's ship which tied itself to dock during storm.
Jury awarded P 500, D appealed twice
Issue
• Must a party who ties her boat to another’s dock to keep it from drifting off in a storm
compensate the dock owner for damages?
Rule
• A party who damages the property of another while acting out of private necessity must
compensate the property owner for the resulting damage.
Outcome
• Yes. Erie acted prudently and out of a private necessity to protect its boat, but it is nevertheless
liable for the damage to Vincent’s dock.

Negligence
Negligence:
A question of fact to be determined from all surrounding circumstances

Theory of Negligence (need all)

1. Plaintiff must establish that the defendant had a duty to conform its conduct to a
specific standard (duty of care/ reasonable care)
2. Plaintiff must prove that the defendant's conduct failed to conform to the appropriate
standard. Reasonable person standard
3. The plaintiff must prove that the defendant's substandard conduct was a factual cause
in fact of the plaintiff's injuries
4. The plaintiff must prove that the defendant's substandard conduct was a proximate or
legal cause of the plaintiffs injuries.
5. The plaintiff must prove actual damages

Adult activity exception

• First, the exception applies only in cases where the child is engaged in an “adults-only”
or ‘licensed” activity, such as driving a car or flying an airplane.
• Second, the rule is grounded on public policy considerations: that when a child is
engaged in such adult activities, public policy requires that the child himself or herself,
rather than any “innocent victim[s]” of the child’s conduct, should suffer the
consequences of that conduct.

Element 1
Plaintiff must establish that the defendant had a duty to conform its conduct to a
specific standard (duty of care/ reasonable care)

Grace & Co v. City of Los Angeles

• The City had a concrete shed where the P stored 1960 bags of coffee.
• A pipe under the shed burst and the P claimed the D knew or should have known the pipe was in
poor condition
• D's didn't know that the soil was corrosive but other government departments did.
• P contended that there was negligence because they failed to inspect in 40 years.
Issue
• Did the defendant's conduct fail to conform to the appropriate standard.
Rule
• Plaintiff must establish that the defendant had a duty to conform its conduct to a specific
standard (duty of care/ reasonable care)
Outcome
• It did not fail in conforming to the standard by not checking the pipe, the city is not negligence
• It would have been unreasonable because of how expensive and hard it would have been.

T.J. Hooper
• Barges of coal belonging to the Northern Barge Company were towed by two tugs of the
petitioner.
• They were lost at sea
Issue
• Have the tugboats met their duty
Rule
1. Plaintiff must establish that the defendant had a duty to conform its conduct to a specific
standard (duty of care/ reasonable care)
Outcome
• There are precaution so imperative that even their universal disregard will not excuse their
omissions.
• Had a duty of operating in a sea worthy manner
• If it wasn’t accustomed then it wasn’t a failure
• You have not met your duty of care by not having the radios. Reasonable care is having the
radios
• The vessels were in an unseaworthy manner = not reasonably fit = not reasonable
care=negligence
Element 2
Plaintiff must prove that the defendant's conduct failed to conform to the appropriate
standard. Reasonable person standard
Vaughan v. Menlove
• P owned two cottages near D's land
• D had a stack of hay on his land which caught fire and burned the P's land.
• D thinks he should be held to a good faith standard
Issue
• What is the correct standard? Is it the good faith standard or the prudent person standard
Rule
• Plaintiff must prove that the defendant's conduct failed to conform to the appropriate standard.
• Requires a regard of what a prudent man would do
Outcome
• A reasonable person in Menlove’s position would likely have recognized the danger of fire from
having a chimney so close to his haystack, and thus would have taken more precautions than
those taken by Menlove to minimize this risk.
• The courts will use the reasonable prudent person standard

Roberts v. State of Louisiana

• P sued to recover damages for injuries he received in a lobby in the post office
• P was bumped into by the blind operator and then fell
 • Operator had gone to bathroom without his cane and P claimed that this was negligent behavior
Issue
• Was the blind operator being negligent because he walked without a cane
Rule
• A handicapped individual must take the precautions which the ordinary man would make if he
were blind
Outcome
• Operator was not negligent

Strait v. Crary
• P and serveral other teenagers went riding in D's pickup truck
• D had bought them beer and they were drunk. D was not drinking
• P tried to climb out of truck window to join frineds in bed of truck, fell out and truck ran over his
leg.
• P found 61% negligent, D found 39%
Issue
• Should the child be held to adult standard
Rule
• Element 2, Adult Activity Exception
• First, the exception applies only in cases where the child is engaged in an “adults-only” or
‘licensed” activity, such as driving a car or flying an airplane.
• Second, the rule is grounded on public policy considerations: that when a child is engaged in
such adult activities, public policy requires that the child himself or herself, rather than any
“innocent victim[s]” of the child’s conduct, should suffer the consequences of that conduct.
Outcome
• This didn’t apply to the exception, specifically because of the climbing around the outside of a
moving truck
• Drinking and driving is not an adults only activity
• The trial court erred in declining to instruct the jury to use the special standard of care for
children when comparing Strait’s negligence to Crary’s. The judgment is reversed, and the case
is remanded.
Violation of Statute
• Easiest way to show E2 is to show violation of statute
Negligence per se: Constituted by an omission, or failure to perform an act required by statute
Negligence per se is the following:
(1) there must be a statute which prescribes certain actions or defines a standard of conduct,
either explicitly or implicitly,
(2) the defendant must violate the statute,
(3) the plaintiff must be in the class of persons sought to be protected by the statute, and
(4) the harm or injury to the plaintiff must generally be of the type the legislature through the
statute sought to prevent.
Exceptions:
• the actor’s compliance with the statute would involve a greater risk of physical harm to
the actor or to others than noncompliance
• The actor exercises reasonable care in attempting to comply with the statute
Absolute Liability
• In order to create absolute liability, it must be found that the legislative purpose of such a
statute is to protect a limited class of persons from their own inexperience, lack of
 judgment, inability to protect themselves or to resist pressure, or tendency toward
negligence. In instances such as the present case, this legislative intent can be deduced
from the character of the statute and the background of the social problem and the
particular hazard at which the statute is directed.
• Types of statutes which would be exceptions to the general rule include (1) child labor
statutes; (2) statutes for the protection of intoxicated persons; and (3) statutes
prohibiting sale of dangerous articles to minors.
Res ipsa loquitur (“the thing speaks for itself’) to apply:
• (1) the accident must be of a kind which ordinarily does not occur in the absence of
someone's negligence;
• (2) it must be caused by an agency or instrumentality within the exclusive control of
defendant; [and]
• (3) it must not be due to any voluntary action on the part of plaintiff.”
• If all three requirements are met, the jury may infer that the defendant was negligent
even though there is no direct evidence to that effect.

Element 3
• But-For test:
o The defendant's conduct is a cause of the event if the event would not have
occurred but for that conduct or the defendant's conduct is not a cause of the
event of the event would have occurred without it
• Plaintiff generally has burden of establishing the cause in fact element
Substantial Factor Test
• If two forces are actively operating, one because of the actor's negligence, the other not
because of any misconduct on his part, and each of itself is sufficient to bring about harm
to another, the actor's negligence may be found to be a substantial factor in bringing it
about

Martin v. Herzog
• Plaintiff and her husband, while driving were struck by the defendant’s automobile coming in
the opposite direction. Husband killed
• The car was rounding the curve, when suddenly it came upon the buggy, emerging, the
defendant tells us, from the gloom.
• Negligence is charged against the defendant, the driver of the car, in that he did not keep to the
right of the center of the highway.
• Negligence is charged against the P because he did not have headlights on his buggy, which was
required by statute

Issue
• If there are dueling claims of negligence, can the defendant still be guilty
Rule
• If plaintiff contributed to the negligence, they can’t win - any negligence
Outcome
• Failed to do reasonable care - plaintiff
• You violate a statute, then you have failed duty of care, negligence per se
• Element 2 is not all of the 5 elements, the plaintiff’s failure to exercise reasonable care has to be
a cause of the injuries
 • Excused from negligence per se- You tried diligently to comply with the statute
• The defendant was not guilty because the plaintiff had violated a statute and also been
negligent

Tedla v. Ellman
• P and her brother were picking up junk on the side of the road, when the D collided and killed
the brother
• Courts found the accident to be solely due to the negligence of the D
• D claimed that the P and her brother were guilty of contributory negligence
Issue
• Does the violation of statute rule constitute contributory negligence as matter of law?
Rule
• Negligence per se recognizes 5 excuses, one is the actor’s compliance with the statute would
involve a greater risk of physical harm to the actor or to others than noncompliance
Outcome
• No. A person who violates a statute governing conduct is not always negligent per se. If a statute
defines the standard of care, failure to follow that statute is negligence as a matter of
law. Acting for safety reasons, so they are not negligent

Gorris v. Scott
• This is an action to recover damages for the loss of a number of sheep which the defendant, a
shipowner, had contracted to carry, and which were washed overboard and lost by reason (as
we must take it to be truly alleged) of the neglect to comply with a certain order made by the
Privy Council, in pursuance of the Contagious Diseases (Animals) Act, 1869.
Issue
• Must the negligent acts complained of under a specific statute be directly related to the
purposes of the statute in order for the action to be successful?
Rule
• In order to enact negligence by a specific statute, the issue must be related to the purpose of
the statute
Outcome
• Yes. Gorris argues that the loss of his sheep would not have occurred if Scott had confined the
sheep in pens as required by the Act. However, the Act’s provisions were enacted solely for
sanitation purposes, not to protect against damage or loss of goods

Potts v. Fidelity Fruit and Produce Co.

• P suing for recovery over a spider but he got from unloading bananas
• Potts brought suit against Fidelity on a theory of negligence per se based on the Georgia Food
Act, which the State of Georgia enacted for consumer protection.
Issue
• Must a plaintiff be within the class of persons the statute was intended to protect, and must the
harm be of the kind against which the statute was intended to guard
Rule
• In determining whether the violation of a statute or ordinance is negligence per se as to a
particular person, it is necessary to examine the purposes of the legislation and decide
• (1) whether the injured person falls within the class of persons it was intended to protect and
• (2) whether the harm complained of was the harm it was intended to guard against.
Outcome
 • Because the Act was not something P fell under it was not applicable
• To recover on a theory of negligence per se based on a statutory violation, a plaintiff must be
within the class of persons the statute was intended to protect, and the harm must be of the
kind against which the statute was intended to guard.

Zerby v. Warren
• Two minors bought glue, then intentionally sniffed it
• Zerby died from sniffing glue)
• New statute, prohibiting the sale to people under 19 of glue
• Violated duty by not knowing the law
Issue
• Was the store able to use the defense of comparative contributory negligence
Rule
• In order to create absolute liability, it must be found that the legislative purpose of such a
statute is to protect a limited class of persons from their own inexperience, lack of judgment,
inability to protect themselves or to resist pressure, or tendency toward negligence. In instances
such as the present case, this legislative intent can be deduced from the character of the statute
and the background of the social problem and the particular hazard at which the statute is
directed.
Exception
• Types of statutes which would be exceptions to the general rule include (1) child labor
statutes; (2) statutes for the protection of intoxicated persons; and (3) statutes
prohibiting sale of dangerous articles to minors.

Outcome
• Makes store just liable, can’t use amy defenses - we call this liability per se
• If we can show a store violated a particular statute, we can use liability per se
• Violated duty by not knowing the law

1. Plaintiff must stablish that the defendant had a duty to conform its conduct to a specific
standard (duty of care/ reasonable care)
2. Plaintiff must prove that the defendant's conduct failed to conform to the appropriate
standard.
• ----------> Failed reasonable care (vaughn)
• ----------> violated statute and reasonable care (nps) (martin)
• ----------> res ipsa loquitor: failed reasonable care
3. The plaintiff must prove that the defendant's substandard conduct was a factual cause in fact
of the plaintiff's injuries
• But-For Test
• Substantial Factor test
• Alternative Liability
4. The plaintiff must prove that the defendant's substandard conduct was a proximate or legal
cause of the plaintiffs injuries.
5. The plaintiff must prove actual damages

Colmeneneres Vivas v. Sun Alliance Insurance Co.

 • P and his wife took an escalator in the airport
• Handrail stopped moving but steps did, and P wife lost balance
• Husband grabs her but he ends up losing his balance and falls
• Sue liability insurance carrier
• Can't satisfy element 2 that the port authority failed to exercise reasonable care
• Plaintiff, can’t show element 2, but alternative, responds with res ipsa to get the jury to
negligence
Issue
• Did Res Ipsa Loquitor apply?
Rule
Res ipsa loquitur (“the thing speaks for itself’) to apply:
• (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's
negligence;
• (2) it must be caused by an agency or instrumentality within the exclusive control of defendant;
[and]
• (3) it must not be due to any voluntary action on the part of plaintiff.”
• If all three requirements are met, the jury may infer that the defendant was negligent even
though there is no direct evidence to that effect.
Outcome
• Element 1, held, handrails not working is not ordinary
• Element 2 The escalator must have been in extensive control of the defendant, technically they
this wasn’t met, but courts held D had exclusive control over the escaltor
o It is enough that the defendant, and not a third party, was ultimately responsible for
the instrumentality.
• Element 3 No evidence the Plaintiffs cause this
• Yes, did apply
Element 3 Exceptions
Factual Causation
But-For Test
• There must be a cause in fact, a cause which produces an event and without which the event
would not have occurred but for the conduct or – defendants conduct is not a cause of the
event
Substantial Factor Test
• If two forces are actively operating, one because of the actor's negligence, the other not
because of any misconduct on his part, and each of itself is sufficient to bring about harm to
another, the actor's negligence may be found to be a substantial factor in bringing it about
Alternative Liability
• Where the conduct of two or more actors is tortious and it is proved that harm has been
caused to the plaintiff by only one of them but there is uncertainty as to which one has
caused it, the burden is upon each actor to prove that he has not caused the harm

East Texas Theaters v. Rutledge

• Personal injuries at a movie theater
• Rutledge sued East Texas for negligence, claiming its failure to remove rowdy patrons from the
theater was the cause of Rutledge’s injuries.
Issue
 • Must a plaintiff show that her injury would not have occurred but for the defendant’s negligent
conduct in order to prove that the conduct was the cause in fact of her injury?
Rule
But-for-Test
• There must be a cause in fact, a cause which produces an event and without which the event
would not have occurred
• Foreseeability
Outcome
• It's just an assumption that the bottle thrower was the rowdy person
• No eye witnesses on who it was
• Does it matter the harm escalated? Might have been hard to predict that a bottle would have
been thrown vs. Marek, the harm stayed constant

Marek v. Southern Enterprises Inc

• Plaintiff wanted judgement from defendants for personal injuries at Palace Theatre
• Went to theatre where patrons threw firecrackers
• Goes partially deaf
Issue
• Had the defendant acted differently would the harm have occurred
Rule
• Element 3, The plaintiff must prove that the defendant's substandard conduct was a factual
cause in fact of the plaintiff's injuries
But-For-Test
1. Harm
2. Time
3. Diffi of Reasonable Care
4. Defendant know?

Outcome
• Evidence the fireworks had gone on for several minutes
• Had you acted differently we think the harm would not have occurred (role of time)
• Defendant was negligent

Viner v. Sweet
• Dove goes public, Viner sold interest
• Sued for 7 claims of legal malpractice
• Claims they could have gotten a better deal
Rule
• But-For Test
Outcome
• Need the But-For Test for consistency in how we deal with legal malpractice… transactional legal
malpractice vs. litigation malpractice

• Substantial Factor Test

• If two forces are actively operating, one because of the actor's negligence, the other not
because of any misconduct on his part, and each of itself is sufficient to bring about harm to
another, the actor's negligence may be found to be a substantial factor in bringing it about
Sanders v. American Body Armor and Equipment
• Sanders -P was police LE who died in shootout.
• Wearing a vest sold by D
• D wearing buttfit style, with panels that didn’t overlap, leaving exposed skin
• Bullet from assailant, and one from a fellow officer
• But - for serves to explain a great amount of cases, but fails
Issue
• Was the body armors failure to exercise reasonable care a factual cause to what happened to
the officer
Rule
• Substantial Factor Test
• If two forces are actively operating, one because of the actor's negligence, the other not
because of any misconduct on his part, and each of itself is sufficient to bring about harm to
another, the actor's negligence may be found to be a substantial factor in bringing it about
Outcome
• The two bullets are concurrent causes of sander's death
• He was going to die from the mistaken shooting or die from the alleged negligently
manufactured body armor
• If we had acted in reasonable care, no one could say he wouldn’t have died
• Body Armor not liable

Pennfield Corp. v. Meadow Valley Electric, Inc

• Death of 1357 swine who suffocated when an electric ventilation system failed
• P sues the defective electrical system manufactures
• Joins two other parties, two cable companies
• Impossible for MVE to know who supplied the cable
• Wanted to use the alternative liability rule, but there were not two tortious feasers
Issue
• If MVE is negligent, can it get the cable provider into the case
Rule
• MVE has the burden of establishing who did the act
Outcome
• Two possible tort feasers, one of whom is negligent, the other of which is fine
• Can't make an innocent party prove they're not liable
• If they can’t figure out who provided the bad cable they can't join the two parties
• Might not be able to transfer the liability
Element 4, The plaintiff must prove that the defendant's substandard conduct was a
proximate or legal cause of the plaintiffs injuries.

Royal Indemnity v. Factory Mutual

• Deere paid Fm to do a fire-safety inspection
• Gets approved, and Deere moves product
• Fire occurs, and Fire chief says they would have been able to put it out quickly had there been
sufficient water pressure
• Agreement did not require them to look at water pressure but were supposed to look at
sprinklers which were in poor shape
Issue
• Was there enough evidence to establish a jury question on proximate cause
• To what degree does foreseeability count
Rule
• Element 4
• Must show factual cause and that the loss was within the scope of liability
• An actor's liability is limited to those harm that result from the risks that made the actor's
conduct tortious
Outcome
• If Fm duty was to test the sprinklers and see if enough water pressure, then we might be in a
different position
• Them working or not working would not have stopped the fire damage
• Even if you had done your duty, the factory was going to burn down
• Royal failed to prove a condition failed by fm increased the risk of the loss than occurred

Proximate Cause Categories (181)

1. Unforeseeable extent of harm, the eggshell rule
If the only unforeseeable feature of the plaintiff's accident was that the damages incurred
were much greater than could have been anticipated, the plaintiff will typically have no
trouble reaching the jury on proximate cause
2. Unforeseeable manner of occurrence- the mechanism rule
It is not necessary that the defendant should have had notice of the particular method in
which the accident would occur, if the possibility of an accident was clear to an ordinary
prudent eye
3. Unforeseeable type of harm
The perception that plaintiff's accident consisted of harm of a wholly different type from
those comprising the array of risks that made the defendant's conduct negligent spells
defeat for the plaintiff
4. Unforeseeable plaintiff

Wagonmound
• Morts dock/ sheerlegs doing repairs on Corrimal
• Wagon Mound moored 200yds away and has furnace oil spill with Caltex
• Sheerlegs engineer tells Caltex but he doesn’t think furnace oil is flameable
• Corrimal catch fire from sparks from engineers
Issue
• Whether a defendant is liable for all direct consequences of his negligent acts, regardless of
their foreseeability.
• How much is wagon mound responsible for
o When at the time it was not known / foreseeable that that oil would light on fire
Rule
• A defendant is only liable for the consequences flowing from his negligent act that are
foreseeable to a reasonable person at the time of the negligent act.
• Better test, reasonable foreseeability
Outcome
• Release of oil was negligent, and the group who released it is liable for all direct consequences
 • The fire was not a reasonably foreseeable consequence of the oil spill, and Tankship is not liable
for the damage to Morts’ wharf.
• Unforeseeable type of harm
• Polemis theory, very broad scope of liability
• Takeaway: Court changes standard
• From direct consequences to reasonably foreseeable
• Because foreseeability proximate cause issues are closely related to duty issues

Palsgraf
• P was at defendant's railroad, two men run t catch train, and a man with a package jumps on, is
about to fall. Guard pushed him form behind and the package falls which contained fireworks
which causes scales to be thrown and the p is injured
Issue
• Was there a duty
Rule
• Plaintiff must stablish that the defendant had a duty to conform its conduct to a specific
standard (duty of care/ reasonable care)
Outcome
• Palsgraf was an unforeseeable plaintiff
• She needed to find a violation of her own right, and a breach of that duty, and Cardozo refuses
to find a duty to her
• The law of causation is something we don’t even reach because there is no duty and therefore
no duty of care, there is no point in considering scope of damages
• Dissent- Element 4, there was a duty, how far are they liable
• Polemis Theory: If the defendant is guilty of negligence, he is responsible for all the
consequences whether responsibly foreseeable or not. Introduces the concept that the
negligent actor is not responsible for consequences which are not direct.

Edwards v. Honeywell
• P sues D the provider of an alarm system intended to protect the house where her husband was
killed in the line of duty
• Honeywell had made a contract with a couple, get a call about a fire but the operator gave the
wrong fire department info. If the correct fire department had been called it would have
reached the right group in 45 seconds.
Issue
• Whether Honeywell's duty of care extended to the firemen who might be summoned to fight
the blaze
Rule
• Was there any duty to the fireman from Honeywell
Outcome
• Honeywell owed no duty of care to fireman Edwards under the common law of Indiana (follows
Palsgraf)
• There were multiple actors with duty who could have impacts the result, why is Honeywell
negligent
• No duty, then no scope of liability
• This is a public service situation,
 (1922) Scope of liability easy, all you have is Polemis where the damages are direct consequence by
the negligence, don’t care if foreseeable or risk was related to tortious conduct 9rpyal indemnity)
(2022) Approach - foreseeable, after Polemis, this idea is really important to scope of liability it
explicitly becomes art of the law in Wagonmound
Still in royal indemnity where the question was is this damage related to the defendant’s negligent
conduct - also a foreseeability question
Reasonable foreseeable in Wagonmound or royal indemnity
In context of unforeseeable victim, hardest case to make - part d on 181
1. Polemis – direct consequence
2. Reasonable Foreseeability/Risk (Wagon mound and Royal Indemnity)
3. No Element 1 (Honeywell, Palsgraf)

Element 5, The plaintiff must prove actual damages/ show harm

• 3 main types of compensatory damages in personal injury cases
1. Medical (and similar) expenses (past and future)
2. Loss of earnings and earning capacity (past and future)
3. Physical and emotional pain and suffering (past and future)

Rodriguez v. Mcdonnell Douglas Corp

• P was a sprinkler fitters apprentice until a 630lb pipe hit him
• Resulted in severe injuries
Issue
• Can the award be lowered
Rule
• Must show harm and once you show harm, you get damages
• An appellate court may not interfere with an award unless the verdict is so large that it shocks
the conscious AND suggests passion, prejudice or corruption on the part of the jury
Application
• Standard to lower the award is a very high bar
Conclusion
• Award was within jury’s discretion and the defendants had made no showing that it was the
product of passion and prejudice
Objection to damages
• Economic evidence presented, probably not right, but cross examination was allowed and jury
could have access to that
• Of course, it’s fair to give attendant care
• Appropriate for jury to consider inflation
• IF court believes that the award is excessive it can grant a new trial on all issues, grant a trial on
damage issues, or order a remittitur

Two Types of Damages element 5

• (willful and wanton conduct) HEIGHTENED Fault → possession of punitive damages (330)
• Negligence/Fault → compensatory damages
Punitive damages: A deplorable act, the point is to punish and teach him and others to never do it
again, subject to federal income taxes
• Can range from 4x to 37.5x
 Compensatory Damages: One a judgement is entered; the amount normally is treated as a debt owed
by the defendant and interest begins to accrue a rate that is usually set by a statute

Mathias v. Accro Eceonomy Lodging Inc.

• Plaintiffs brought this diversity suit against D's who are owner operator of Motel 6 chan.
• P were bitten by bedbugs
• Awarded compensatory and punitive damages which the D appeals on
• Like Garratt v. Dailey because there was substantial certainty the bedbugs probably amount to
battery
Issue
• Must a punitive-damages award be rejected as excessive if the ratio between compensatory
and punitive damages exceeds single digits?
Rule
• The award of punitive damages serves the additional purpose of limiting the defendant’s ability
to profit from its fraud by escaping detection and private prosecution
Application
• 186k punitive damages
• Compensable harm was slight but difficult to quantify because more of it was emotional, which
is why he argues for letting state juries do a 37.8X for the punitive damages
• There are good reason for allowing high levels of punitive damages
Outcome
• Trial Court was affirmed

Outlaw Plaintiffs Wrongful Conduct

Can’t recover:
• A plaintiff who has engaged in activities prohibited by law will not be permitted to
recover for damages if the plaintiffs conduct constituted a serious violation of the law,
and the injuries for which the plaintiff seeks recovery were the direction of the plaintiff’s
knowing and voluntary participation in that violation
Can recover
• Plaintiffs are permitted to bring causes of action despite their own misconduct, so long as
the conduct was not of the kind that usually results in injury or was not per se dangerous

Mischalski v. Ford Motor Company

• P was a citizen of Poland who remained until the end of his visa.
• Helped replace an air suspension, with a jack provided by theD.
• The jack collapsed and he was injured, sues D alleging product liability and failure to warn
theories
Issue
• Should outlaw plaintiffs be able to recover in tort
Rule
• A plaintiff who has engaged in activities prohibited by law will not be permitted to recover for
damages if the plaintiffs conduct constituted a serious violation of the law, and the injuries fro
which the plaintiff seeks recovery were the direction of the plaintiff’s knowing and voluntary
participation in that violation
• Plaintiffs are permitted to bring causes of action despite their own misconduct, so long as the
conduct was not of the kind that usually results in injury or was not per se dangerous
Application
D - you can't recover
1. because you're an alien
2. Illegal conduct
• Whatever the cause of the P’s injury, it was not caused by the fact he was working ‘illegally’
Conclusion
• Plaintiff can recover
Guadamaud v. Dentsply International, Inc
• P brings a product liability action
• Had opened a dentistry practice despite not being licensed
• Uses a product meant only for dentists, and the syinge was defective and caused her injuries to
her hands
Issue
• Can she recover because she was engaged in a serious violation of the law and her injuries are a
direct cause of this conduct
Rule
• A plaintiff who has engaged in activities prohibited by law will not be permitted to recover
damages if the plaintiff's conduct constituted a serious violation of the law and the injuries for
which the plaintiff seeks recovery were the direct result of the plaintiff's knowing and voluntary
participation in that violation
Application
• Practiced dentistry without a license
Conclusion
• Can’t recover
• Difference in Michalski in serious violation of law and when they cause the victims damages
Contributory Negligence
• Any contributory negligence, the plaintiff gets nothing
Comparative Fault
• In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff’s fault is
less than the combined fault of all the tortfeasors
• Modified: Plaintiffs recover as in pure jurisdictions but only if the plaintiff’s negligence either
• 1. does not exceed or
• 2. is less than the defendant's negligence
• 51 percent v 50 percent

McIntryre v. Balentine
• P and D were in a motor vehicle accident resulting in severe injuries to the P
• Both had consumed alcohol before the accident
Issue
• Should the court rule that because the P and D were equally at fault in this accident, the ruling
should be in favor of the defendant
• Can we use comparative fault?
Rule
• Comparative Negligence (Tennessee Formula)
• In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff’s
fault is less than the combined fault of all the tortfeasors
• Modified: Plaintiffs recover as in pure jurisdictions but only if the plaintiff’s negligence
either
 1. does not exceed or
2. is less than the defendant's negligence
3. 51 percent v 50 percent

Reducing Damages because of Plaintiffs Fault 3 ways

1. Plaintiff as “outlaw”- wrongful conduct
2. Plaintiff was also negligent- comparative fault
3. Plaintiff have avoided consequences/ mitigated damages – reduce damages

Hutchins v. Schwartz
• P and D get into a car accident, P was not wearing a seatbelt, and sustained bruises, cuts, and a
broken toe
• P could have mitigated the damages
Issue
• Can plaintiffs failure to use seatbelts be described as avoiding consequences/mitigated damage,
meaning damages could be reduced
Rule
• The fact that a majority of people act in a certain manner does not make that conduct
reasonable especially when that conduct involves an unnecessary risk
Conclusion
• Uphold TC that there was evidence that P was 40 percent negligent

Immunity (Federal)
• Exception from immunity (P may sue FG)
• Many limitations that shield FG from suit
• Time limitation, no jury, no interest prior to judgement and no punitive damages, need to
approach agency with claim and they need to make a determination, only if the agency turns
you down can you sue, can’t sue for more than your claim is worth, retain immunity on
anything involving federal employees using their judgement on policy
• 489 federal torts
State v. Hicks
• A school bus collided with a cattle truck in a narrow and allegedly defective bridge constructed
and maintained by the State Highway Department causing death of P’s wife and daughter
Issue
• Can the doctrine of sovereign immunity be changed only by legislative action?
Rule
• New Mexico allows liability for operation of motor vehicles, buildings, parks, machinery,
airports, public utilities, hospitals, and highways and intentional torts of law enforcement officer
• Set caps, and retain faulty bridges as an immunity
Conclusion
• Apply this change to the current case and all similar pending actions and all cases which may
arise in the future
• State of New Mexico rebels and restore the state of immunity except for certain exceptions
• Private party then you go through elements 1 -5 for negligence
 Charitable Immunities
• Decline of charitable immunity with limitations - insurance
Child v. Central Maine Medical Center
• Medical Malpractice against CMCC for personal injuries to child during birth
• CMMC raises charitable immunity as its defense
Issue
• Is Central Maine Medical Center a charitable organization that can receive charitable immunity
Rule
• two rationales for this immunity: "(1) that funds donated for charitable purposes are held in
trust to be used exclusively for those purposes, and (2) that to permit the invasion of these
funds to satisfy tort claims would destroy the sources of charitable support upon which the
enterprise depends
Application
• Appellate court focuses on revenue instead of attirbutes
• D received donations and only a small portion was for charity
• D can draw from these noncharitable revenues, and it does not depend on charitable support
• NY and NJ (9:24) pretty wife difference in charitable immunities
Conclusion
• States moving away from charitable immunity
Medical Malpractice
• P must prove that the defendant failed to exercise reasonable care and this substandard
conduct was a factual and proximate cause of the plaintiff's injuries.
• Whether the expert witness is so substantially familiar with the standard of care
• Whether the standard of diagnosis or treatment applicable to the expert witness’ specialty is
substantially identical to the standard for the defendant’s practice

Melville v. Southward
• P wins 56k in judgement against podiatrist for malpractice resulting in a permanent foot injury
that interfered with P's walking and balancing
• P went in for ingrown, D recommended surgery to help with discomfort for second toe. Gets
infected
• Went to Dr. Barnard and later in court asked for his opinion
Issue
• Negligence to operation and negligence to post operation care in regard to element 2
• Was this doctor so substantially familiar with the standard of care expected of podiatrists in
respect to the operation
Rule
• Element 2 breach of duty of care Plaintiff must establish that the defendant failed to conform to
the standard of care
514 evidentiary standards
• Whether the expert witness is so substantially familiar with the standard of care
• Whether the standard of diagnosis or treatment applicable to the expert witness’ specialty is
substantially identical to the standard for the defendant’s practice
Application
• No, he is not an expert in podiatry, not his field
• Standard two – is standard of care substantially identical for the two families of medicine, he is
not familiar, so it is not familiar
• No proper evidentiary foundation
Conclusion
• In regard to the operation – there was no evidentiary basis to accept Barnard as an expert
• Plaintiff has not shown substantially familiar with other school of medicine or that the
substandard is so identical
• Might be able to show something on the post operative care – element 2
Notes
• Think about TJ Hooper

Common Law Liability/ Strict Liability

• Some aspects don’t require showing fault, intentional tort, negligence – they just are
• 1. Animals 2. Abnormally Dangerous Activities
• Liability without showing fault if the animal hurts someone
• Animal – extends only to types of injuries that were foreseeable,

Rylands v. Fletcher
• P was an occupier of mines and D were owners of Mill in the neighborhood and they proposed
to make a resevoir
• In the course of building the reservoir, these employees learned that it was being built on top of
abandoned underground coal mines. This fact was unknown by Rylands. After the reservoir was
completed, it broke and flooded Fletcher’s coal mines
• Non natural use damages the property of another
Issue
• How to impose strict liability when it doesn’t seem necessary to show fault, but don’t want it to
be too broad (natural use v. non-natural use)
Rule
• Non natural use has to have caused damage to the plaintiff
Application
• The building of a reservoir to bring a large mass of water on Rylands’s property may not be
considered a natural use, as it impacts the amount of water that may potentially reach
Fletcher’s coal mine. Thus, Rylands may be liable for damages.
Conclusion
• If you have different theories, you can explain why it works or doesn’t work
• Common law strict liability, rylands, irac it address both theories
• Trespass to land
• Aluminum and amphitheater

Siegler v. Kuhlman
• 17 year old dies in flames of a gasoline explosion when her car encounters a pool of thousands
of gallons of gasoline.
• D was a gas truck driver, who during one of his shifts saw the Trailor come unattached
Issue
• What is an abnormally dangerous activity
Rule
• An activity is abnormally dangerous and therefore subject to strict liability if it creates a
foreseeable and highly significant risk of physically harm even when reasonable care is exercised
Application
• P claims Res Ipsa Loquitor or Negligence,
 • Court thinks you can present on R.I.L but think this is strict liability because of the
abnormality of it
• Takes on uniquely hazardous conditions
• What is an abnormal dangerous activity and what is not
Conclusion
• Strict liability
• The transporting of gasoline along the public highways is obviously an abnormally dangerous
activity because it involves a high degree of risk of great harm and injury to others and creates
dangers that cannot be eliminated by the exercise of reasonable care.
• Gas truck wouldn’t have been liable if the explosion had been caused by a motorist /
second negligent party colliding into the truck – concurrence, but majority doesn’t say
this

Products Liability
Negligence ( including res ipsa loquitor)
• P must prove that the defendant failed to use reasonable care in manufacturing designing or
marketing the product and that this failure was a cause in fact and a proximate cause of the
plaintiffs’ injuries
Warranty (Expressed warranty + implied warranty)
Misrepresentation
• One engaged in the business of selling or otherwise distributing products who, in connection
with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of
material fact concerning the product is subject to liability for harm to persons or property
caused by the misrepresentation
Strict liability as applies to tort liability
Strict tort liability →
1. Liable for design defect?
2. Liable for failure to warn of inherent danger?
Defective Design Theory →
• Unreasonably dangerous Standard:
• Show design renders product unreasonably dangerous
• STL →Design Defect →mismanufacture or faulty design ?
• If faulty design then without warning then liable

Greenman v. Yuba Power Products, Inc (negligence, warranty, strict tort liability)
• P bought a shop smith (power tool) and worked on a piece of wood. It flies out one day and
inflicts serious injuries sues retailor and manufacturing for breach of warranty and negligence
Issue
• Should the M not be held liable for the warranty theory ( even though the proper time to bring
didn’t happen)
Rule
 • A manufacture is strictly liable in tort when an article he places on the market, knowing that it is
to be used without inspection for defects, proves to have a defect that causes injury to a human
being (543)
Application
• In against manufacturer for breach of warren and negligence P wins
• Time does not clear them, because they had never dealt with each other
• To establish the manufacturer's liability, it was sufficient that plaintiff proved that he was
injured using the shopsmith in the way it was intended to be used as a result of a defect in
design and manufacturer
• Manufacturer strictly liable when they put it in the market without inspecting it
Conclusion
• Strict tort liability is also available and expanding to sellers
Strict tort liability →
1. Liable for design defect?
2. Liable for failure to warn of inherent danger?
Defective Design Theory →
• Unreasonably dangerous Standard:
• Show design renders product unreasonably dangerous
• Consumer expectation test – to consumer or user put to normal use

STL →Design Defect →mismanufacture or faulty design ?

If faulty design then without warning then liable

Linegar v. Armour of America, Inc Strict tort liability

Defective Design Theory
• P was a highway patrol trooper who was killed in the line of duty, and the vest he was wearing
was defective
• Widow sought recovery for strict liability and tort based on a design defect in the vest
Issue
• Was there a defect
Rule
• (547) Plaintiff must show that the design renders the product unreasonably dangerous
Application
• No design defect, no unreasonable danger
• The limitations to the vest were obvious, a person would not expect to be shielded if shot under
the arm for example
• As a matter of law, not defective or unreasonably safe, it was designed to prevent penetration
of bullets where it was covered, the amount of coverages was the buyers choice
Conclusion
• No defect

Phillips v. Kimwood Machine Company

Strict Tort liability
• P was injured while feeding fiberboard into a sanding machine during his employment
• P brought action on a products liability theory, saying it was unreasonably dangerous by virtue
of defective design
Issue
 • Was there a design defect?
• Faulty manufacture x
• Faulty design * (Unreasonably dangerous sunless you post a warning)
• Without warning → liability
Rule
• In order to prevent the product from being unreasonably dangerous, the seller may be required
to give directions or warning, on the container as to its use
Application
• Made unreasonably dangerous if you don’t warn
Conclusion