I.

Introduction to Torts
1. Development of Liability Based Upon Fault
1. Intent
1. Trespass v. trespass on the case – focus on directness of
injury and causal sequence, not on intention
2. Whether a man intends to harm a person or not, he should
be held at fault (Anonymous, 1466)
3. Pure Accident: No liability (Weaver v. Ward, 1616)
4. Ordinary Care: ∆ judged against standard of ordinary care
when injuring someone unintentionally (Brown v. Kendall,
1850)
i. liable if intention is unlawful or injury from act is
unavoidable
ii. burden of proof on π
5. Foreseeability: A person cannot be held liable for damages
incurred from an unforeseeable occurrence
i. Illness (Cohen v. Petty, 1933)
6. Strict (Absolute) Liability: When engaging in an inherently
dangerous/destructive activity, like blasting, there is absolute
liability regardless of trespass or negligence (Spano v.
Perini, 1969)
i. Blaster should be liable, not innocent victim
ii. Keeps blaster from being negligent
iii. Don’t look at fault because would put unnecessary
constraints on blasters
II. Negligence
1. Elements
1. A duty to use reasonable care: conformation to a certain legal
standard
2. Breach of the duty: failure to conform to the required standard
3. Causation: a reasonably close causal connection
1. Causation in fact
2. Proximate cause
4. Damages
2. A Negligence Formula
1. Foreseeability
1. A person cannot be held liable for damages incurred from an
unforeseeable occurrence
i. Child swinging golf club left in yard (Lubitz v. Wells,
1955)
Risk v. Burden to Society
shotgun axe golf club

risk burden to society

 i. Water main co. used ordinary care and could not be
held liable because could not foresee an undue cold
winter (Blyth v. Birmingham Waterworks, 1856)
2. Forseeability not a measure of probability, or more likely to
happen than not, it is a measure of whether it could happen
at all
i. Bung hole cap noticeably and knowingly shoddy,
causing spark and burning man (Gulf Refining v.
Williams, 1938)
1. Risk v. Burden
1. Duty = Burden < Probability(Injury) (U.S. v. Carroll
Towing, 1947 (loose barge))
i. Locking up r.r. turntable to protect against children is
a slight burden to avoid large risk (Chicago R.R. v.
Krayenbuhl, 1902)
ii. Expecting municipality to protect cars on all roads
against all circumstances is too burdensome
(Davison v. Snohomish 1928)
iii. Restatement §§ 291, 292 & 293
2. The Standard of Care
1. THE REASONABLE PRUDENT PERSON: a person’s actions must
be measured against that of an ordinarily prudent person (legal
fiction), not against their own personal standard (Vaughan v.
Menlove, 1837 (hay rick)/ Delair v. McAdoo, 1936 (blown tire))
1. Responsibility to keep up with industry standards [not
necessarily custom] of the time (Trimarco v. Klein, 1982
(glass shower door))
i. Standard/custom is not automatic proof, must prove
that standard/custom is reasonable (radios on fishing
boats)
2. Emergency Situations: reasonable standard is lowered,
negligence is relevant to circumstances, time and place
i. Sudden emergency: unforeseen, sudden and
unexpected
ii. Emergency created by negligence of actor, standard
does not apply
3. Physical Disabilities: standard is how a reasonably prudent
person with the same disability would act (Roberts v. State
of La., 1981 (blind p.o. employee))
4. Children: Generally a child should be held to the standard of
care of an ordinary reasonable child of the same age and
intelligence, however, in cases where child is engaging in
inherently dangerous or adult acts, can be held to an adult
standard of care (Robinson v. Lindsay, 1979 (snowmobile))
i. Policy: protection of public from mishandled vehicles
 5. Insanity: treated like sudden illness, if unforeseen, no
liability, if reasonably expected to happen and cause injury,
liability (Breunig v. American Family Ins. 1970 (God causes
car crash))
i. not held to standard of ordinary insane person
because then would never be liable
ii. Policy for holding permanently insane person liable:
(1) where one of two innocent persons must suffer a
loss, it should be responsible party (2) induce
handlers of estate to keep tabs on person (3) fear
insanity defense would lead to false claims of insanity
to avoid liability
iii. ***MOST COURTS do not make an allowance for
mental illness of the defendant in any capacity, still
judged by reasonable person standard
1. Most courts demarcate difference between
physical and mental disabilities (including IQ).
Different outcomes when Alzheimer’s viewed
as mental (liable) or physical (not liable)
2. THE PROFESSIONAL: a professional is held to the standard care
of an ordinary and prudent person in the same profession in good
standing (Heath v. Swift Wings 1979 (plane crash))
1. Expert witnesses are needed to explain
terminology/definition of ordinary standard to jury, w/o
cannot win, unless negligence is so obvious even layperson
understands
i. Witness can’t say this is what I would have done, has
to say what the ordinary standard of care in the
particular situation in the profession is (Boyce v.
Brown 1938 (ankle surgery))
2. Local v. National Standards: move away from local, now
professionals are expected to follow national standards of
ordinary care (Morrison v. MacNamara 1979 (sit v. stand up
medical procedure))
i. Public policy: professionals who are trained to a
national standard and hold themselves out as such
should be held to that (doctors, etc.)
ii. ***MOST COURTS have adopted “similar community
in similar standings” circumstances to allow for
differences in specialized doctors v. general
practitioners
3. Informed Consent (medical malpractice): consent to medical
treatment should be based on adequate information about
treatment, available alternatives and collateral risks (Scott v.
Bradford 1979 (botched hysterectomy))
i. Elements of informed consent case
 1. NOT based on professional standard:
measured by patient’s need to know enough to
enable him to make informed decisions, full
disclosure of all materials risks (any risk
likely to affect a patient’s decision), regardless
of whether operation was performed
negligently
1. Standard of what the reasonable
physician would tell patient (majority)
Standard of what reasonable patient
would want to know (minority)
2. If patient had known all risks wouldn’t have
consented
1. Canterbury rule: would the “ordinary
patient” have consented (majority)
American rule: what individual patient
would have done (minority)
3. The unexplained adverse risks happened
and caused injury
ii. Fiduciary Duty and informed consent: A physician has
a fiduciary duty to disclose personal interests
unrelated to patient’s health, whether research or
economic, that may affect physician’s his professional
judgment, and must receive informed consent (UCLA)
3. AGGRAVATED NEGLIGENCE
1. “Degrees” of negligence, rarely used anymore
i. “Slight” - failure to use great care
ii. Ordinary – failure to use ordinary care
iii. “Gross” – failure to use even slight care
2. Willful, Wanton and Reckless conduct – based on
defendant’s state of mind, used as an intermediary between
negligence and intentional torts
3. Rest. 2nd § 500: action consisting of a deliberate and
conscious disregard for a known high degree of probability of
harm to another
4. Mostly now only used for assigning punitive damages
5. Some states still use gross negligence for extremely
egregious cases
4. Automobile Guest Statutes: guests assume risk by getting into the
car, limited recovery
5. Led to each state’s definition of aggravated negligence
3. Rules of Law
i. Rule v. standard of ordinary care
ii. Rules made by the court (not legislative statute) attempt to create
black letter law (Holmes)
 1. These cannot held to be absolute in extraordinary
circumstances
2. Do you make a new rule for every new situation?
iii. Cardozo fought to stick with what’s reasonable under
circumstances (Pokora v. Wabash Ry. Co. 1934 (checking railroad
crossing)
1. Inappropriate for judiciary to make bright line rules
5. Violation of Statute
i. Statute: establishes a fixed standard by which the fact of
negligence may be determined
ii. Negligence Per Se: violation of statute constitutes conclusive
evidence of negligence
1. Where a statute imposes upon a person a specific duty for
the protection or benefit of others, if he neglects to perform
that duty he is liable for negligence
2. A statute that provides for a criminal proceeding only, does
not create a civil liability
1. The standard of conduct that is breached must be
established by the courts first
2. The determination to accept a criminal standard to
determine a civil liability rests solely with the court
iii. APPLICABILITY OF A STATUTE
1. To determine the basis upon which a court seeks to select or
reject a criminal statute as a standard of care, the court must
determine each of the following (Stachniewicz 1971 (bar
fight)):
i. The party seeking to charge the other with violation of
the statute is a member of the class the legislature
meant to protect
ii. The hazard that occurred was one the legislature
intended to prevent
1. Can have 2+ intentions
iii. Whether it is appropriate to impose tort liability for
violations of the statute
1. §§ 287 and 288 in the Restatement (Second)
of Torts
2. Policy: when a legislative body has generalized
a standard from the experience of the
community and prohibits conduct that is likely
to cause harm, the court accepts the
formulation
3. There is no doctrine of negligence per se in
federal law. The federal courts are in no
position to adopt a criminal statutory rule of
conduct as a civil rule of conduct replacing the
general standard of care. The result is they find
 it necessary to “imply” a civil action from the
criminal statute, thus placing responsibility for
the action on Congress.
2. The injury caused must have a direct and proximate
connection with the violation of the statute (Ney v. Yellow
Cab 1954 (stolen cab in accident))
3. Defendant in most negligence per se cases already owes
plaintiff a pre-existing common-law duty to act as a
reasonably prudent person, so that the statute’s role is
merely to define more precisely what conduct breaches that
duty. (Perry v. S.N. and S.N. 1998 (day care child abuse))
4. The absence of a relevant common law duty should be
considered in deciding whether to apply negligence per se to
a criminal statute
i. EFFECT OF THE STATUTE
1. Unexcused violation of a statute is negligence per se, it is
not for a jury to determine when and when not to apply the
rules of a statute (Martin v. Herzog 1920 (unlit buggy v. car))
2. Violation of statute as rebuttable presumption : when a court
adopts a penal statute as the standard of care in an action
for negligence, violation of that statute establishes a prima
facie case of negligence, with the determination to be made
by the finder of fact whether the violator has a legally
sufficient excuse. (Zeni v. Anderson 1976 (icy footpath))
1. Rest. 2nd § 228A
2. Public Policy: It would be unreasonable to force
people to stringently follow a statute where doing
such would subject the person to danger which could
otherwise be avoided if they didn’t follow
3. Negligence per se should ≠ strict liability
4. What effect to give to violation of a statute?
i. Negligence per se (violation in and of itself)
ii. Prima facie negligence (only testimony of
credible evidence)
iii. Some evidence of negligence (not violation in
itself)
1. (a & b can be seen as fitting together as
per se)
6. Proof of Negligence
1. COURT AND JURY: CIRCUMSTANTIAL EVIDENCE
1. π must show direct evidence that defendant was negligent or
enough evidence that an inference of negligence can be
made (Goddard etc. (banana peel cases))
2. Where the plaintiff relies on the failure of defendant to
correct a dangerous condition to prove defendant’s
negligence, the plaintiff has burden of showing that the
 owner had notice of the defect in sufficient time to correct it
[notice requirement] (Ortega v. Kmart 2001 (milk spill))
i. Only need to show constructive knowledge, not actual
knowledge and may be shown by circumstantial
evidence.
3. When the operating methods of a proprietor are such that
dangerous conditions are continuous or easily foreseeable
there is no notice requirement allowed. (Jasko v. Woolworth,
1972 (pizza))
4. Elements π must show to recover:
i. Proprietor had actual or constructive knowledge of a
condition on the premises
ii. The condition posed an unreasonable risk of harm
iii. The proprietor did not exercise reasonable care to
reduce or eliminate the risk, and
iv. The failure of the proprietor to use such care
proximately caused the π’s injuries (H.E. Butt v.
Resendez, 1999 (grapes))
5. π has three separate burden’s of proof on the issue of
negligence: the burden of pleading, the burden of coming
forward with enough evidence to avoid a directed verdict
against him and the burden of persuading the trier of fact to
find in his favor.
2. RES IPSA LOQUITOR
1. Burden of proof shifts to defendant to show there wasn’t
negligence or can look at it as burden of proof has been met
2. Actions/accidents themselves are prima facie evidence of
negligence regardless of whether plaintiff can prove actual
negligence (Byrne v. Boadle, 1863 (flour))
i. Must be reasonable evidence of negligence by
defendant or defendants servants
3. Res ipsa loquitor applies even when π contributed to
injuries, jury must use comparative negligence
4. Elements π must prove:
i. That there was an accident cause by something
under the strict and exclusive control of the ∆
ii. It was a rare accident that could only occur with some
negligence
iii. π must not have added to the risk (McDougald v.
Perry, 1998 (broken spare tire chain))
5. Exclusive control: cannot be possibly attributable to more
than one cause (Larson v. St. Francis Hotel, 1948 (chair))
6. Specific ∆ does not need to be named if the π is unable to
identify them, does not bar use of res ipsa loquitor, just force
∆s to work it out after (Ybarra v. Spangard, 1944
(unconscious patient))
 7. Res ipsa loquitor merely permits the jury to choose the
inference of defendant’s negligence in preference to other
permissible or reasonable inferences (Sullivan v. Crabtree,
1953 (truck overturn))

III. Causation in Fact

 The negligence factually led to the injury
 “but for” test: but for the action of the negligent party, the injury would not have
occurred
1. Sine Qua Non
1. Negligence is not actionable unless it is a cause in fact of the harm
for which recovery is sought, but it need not be the sole harm
2. Negligence is a cause in fact of the harm to another if it was a
substantial factor in bringing about the harm (Perkins v. Texas and
New Orleans Ry. Co., 1962 (excessive speed of train did not make
a difference))
2. Proof of Causation
1. Where the negligence of the defendant greatly multiplies the
chances of accident to the plaintiff and is of a character naturally
leading to its occurrence, the mere possibility that it might have
happened without the negligence is not sufficient to break the chain
of cause and effect (Reynolds v. Texas & Pac. R.R., 1885 (fat lady
falls down unlit stairs))
2. The possibility of the existence of an event does not generally
prove its probability, π must prove more that the probability that a
negligent act caused the π’s damages (Gentry, 1998 (bad porch
steps)) (Kramer Service, 1939 (hotel glass > cancer))
3. Damages for reduction of the opportunity to recover (loss of
chance) are measured by the coinciding percentage of the time
lost, don’t need to prove that it was more likely than not the cause
of the death (Herskovits, 1983 (didn’t diagnose lung cancer in
terminally ill patient).
1. “substantial factor” test: allow jury to decide if the negligence
was substantial factor in injury
4. Generally a plaintiff must establish causation by a preponderance
of the evidence or that the negligence more likely than not caused
the injury (> 50%) (Daubert (birth defect from morning sickness
pill))
3. Concurrent Causes
1. When separate acts of negligence combine to produce directly a
single injury each tortfeasor is responsible for the entire result, even
though his act alone might not have caused it (Hill, 1966 (truck
parked in road))
2. If an injury is caused by two or more tortfeasors or acts and one is
unknown, the known tortfeasor is still fully responsible for the injury
 even if the injury would have happened without the known
tortfeasors negligence (Anderson, 1920 (two fires))
1. “substantial factor” test retains “but for” causation as an
essential precondition except in situations where two or
more actively operating forces for only one of which the
defendant is responsible, combine to bring about harm, while
each alone would have been sufficient to bring it about
4. Problems in Determining Which Party Caused the Harm
1. Where it is impossible for π to definitively say which one of two or
more parties caused their injury when they were both negligent, the
burden shifts to the ∆ to prove that it was not him (Summers v.
Tice, 1948 (two shots, one injury))
1. If used “but for” the π wouldn’t recover
2. Policy: to hold otherwise would exonerate both tortfeasors
when both were negligent
3. π can recover from either or both defendants, up to them to
work it out after
2. Market share theory of liability: when a π can’t identify which
company that made drug, etc. the industry itself is held liable and
can sue all producers and let them prove that it wasn’t them
amongst themselves because all were equally negligent
1. Each company is held liable in equal percentage to their
contribution to the market (Sindell, 1980 (DES))
2. Defendants can prove that their market share is less and
those unable to get theirs bumped up, π may not get entire
amount of damages if each ∆ can prove their market share
3. 5 courts retain traditional approach of identifying tortfeasor
II. Proximate or Legal Cause
 A(N)  B  C  D  π’s injury = cause in fact
 Need to cut off cause in fact in the interest of fairness = proximate cause
o Even if defendant was negligent and did cause the damages
o If not the causation could continue infinitely
o Proximate = near, closest
o Is an arbitrary line drawn by the courts
o A question of whether legal liability should be imposed by the courts
where legal cause has been established
o Restatement (Second) substituted “legal” for “proximate”
1. UNFORESEEABLE CONSEQUENCES
1. The remoteness of damages, regardless of whether they were
caused in fact by the negligence of a person, bars recovery
because otherwise a person would be liable for incalculable and
infinite (Ryan v. New York R.R., 1866 (woodshed fire))
1. Policy: damages would be impossible to insure oneself
against
2. Most decisions have held the defendant liable in situations
where the fire spread substantially
 2. “Egg shell skull” rule: Must take the plaintiff as you find them, both
physically and in most jurisdictions mentally (Bartolone, 1984
(weightlifter mental breakdown))
1. Courts agree that it is when the unforeseeable
consequences follow from a physical injury
2. Rule only applies to the proximate cause issue, not to
determination of reasonable care (negligence) or defect
(strict liability) which are measured in terms of the ordinary
person
3. Intervening efficient cause: consequences which follow in unbroken
sequence, without and intervening efficient cause, from the original
negligent act are natural and proximate (Polemis, 1921 (dropped
plank causes spark))
1. If the act would or probably would cause damage it is
immaterial if the actual damage caused was not the
expected kind
2. Unforseeability of the result v. unforseeability of the manner
in which it was brought about: latter will usually not relieve ∆
of responsibility
4. The area within which liability is imposed is that which is within the
circle of reasonable foreseeability (Wagon Mound 1, 1961 (oil >
cotton > welders > burnt dock)
5. Just because the risk of the damages is small does not mean that it
should be ignored if a reasonable person would eliminate it, unless
the expense to eliminate the risk was exceedingly high (Wagon
Mound 2)
6. Negligence will not be viewed in the air but in relation to the
particular plaintiff and defendant can only be liable if they were
directly negligent towards plaintiff (Palsgraf, 1928, (fireworks/train
platform))
1. Plaintiff must show a wrong to their own personal right not a
wrong to someone else that tangentially affected them
2. Direct causation and an unforeseeable plaintiff
3. DISSENT: duty to society, not just individual
7. Highly extraordinary cases: a defendant cannot be held liable when
there is another intervening cause or another “sole proximate
cause” which could not possibly be expected (unforeseen
consequences) (Yun v. Ford, 1994 (loose tire on Parkway))
2. INTERVENING CAUSES
1. Where the acts of a third party intervene between the defendant’s
conduct and the plaintiff’s injury, the causal connection is not
automatically severed (not automatically superseding), liability turns
on whether the intervening act is a normal and foreseeable
consequence of defendant’s negligence (Derderian, 1980 (runaway
car at site))
 2. Defendant cannot be held liable for malicious and criminal acts of
third parties [unforeseeable] (Watson, 1910 (match into gas))
3. An initial tortfeasor may be liable for the wrong acts of a third party
if foreseeable (Fuller v. Preis, 1974 (irresistible impulse to suicide
after accident))
4. RESCUE DOCTRINE: allows an injured rescuer to sue the party
which caused the danger requiring the rescue (McCoy v. Suzuki,
1998 (flare man hit)
1. Rescuers are anticipated
2. the tort-feasor owes a duty similar to the duty he owes a
person he imperils
3. negates presumption of assumption of risk
4. rescuer must still show proximate cause
5. Elements:
i. The ∆ was negligent to the person rescued and such
negligence caused peril or appearance of peril to the
person rescued
ii. The peril or appearance of was imminent
iii. A reasonable prudent person would have concluded
such peril or appearance of peril existed and,
iv. The rescuer acted with reasonable care in
effectuating the rescue
3. PUBLIC POLICY
1. Judicial branch expands liability but limits it to certain situations
1. Holding social hosts liable (imposing duty) for the damages
caused by intoxicated guests to third parties (Kelly v.
Gwinnell, 1984)
i. DISSENT: avg. citizen should not be held liable
ii. Almost all state supreme courts have declined to
impose liability to social hosts
iii. POLICY: ruled against mostly because of the
consideration of the effect that it would have on
personal relationships in a variety of settings
2. Must confine liability within manageable limits (Enright v. Eli Lilly,
1991 (DES/grandchild)
1. Expanding duty of drug companies to protect against
possible effects to unconceived generations of children
would place too great burden on them and deny public
access to prescriptions
i. Similar to Palsgraf in that there is no duty to unborn
child
II. Joint Tortfeasors
1. LIABILITY AND JOINDER OF DEFENDANTS
1. When two people are acting negligently in concert with one
another, both are liable for damages even if the actual injury was
 only caused by one (Race v. Bierczynski, 1968 (two cars in road
race))
1. π does not have to sue both, can sue one and deny joinder
of other ∆
2. Joint and several liability: each of several tortfeasors is liable jointly
with the others for the amount of the judgment against them, and
that each is also individually liable for the whole amount. Plaintiff
can collect from one or any group. Applicable in three situations:
1. when the tortfeasors acted in concert
2. when defendants failed to perform a common duty to the
plaintiff
3. defendants who acted independently to cause an indivisible
harm
3. Contribution: after plaintiff is finished with case, defendant/s who
paid can bring actions against other defendants to recover some of
the payment
4. Indemnity: cause of action under contract
5. Comparative negligence: damages are apportioned according to
each party’s fault
1. Replaced contributory negligence in which if the π was found
at all negligent, he was barred from recovery
2. Cannot replace joint and several liability because the burden
of the poor or missing ∆ would fall on the π (Coney, 1983
(work platform death))
6. Some states have not kept joint and several liability
1. Allows a tortfeasor responsible for 1% of damages to be
forced to pay 100% if other cannot be found or can’t pay
2. π always bears risk that a single ∆ may not be found and
may not be able to recover (Bartlett, 1982 (3 car accident)
2. SATISFACTION AND RELEASE
1. Although there are several tortfeasors there is only one act and one
consequence which is indivisible and allows for only one
satisfaction and the satisfaction of the judgment against one
tortfeasor releases the others (Bundt v. Embro, 1965)
1. Payments that were not made by or on behalf of the
tortfeasors are not credited to the tortfeasors even if the
plaintiff then receives more than the judgment
2. Covenant Not to Proceed with Suit made with one tortfeasor does
not bar plaintiff from bringing suit against another or several
tortfeasors
3. Release: an agreement to give up your cause of action, in common
law when you released one you released all, may only make up a
portion of compensation
4. Covenant not to sue: same as release but doesn’t release all
5. Judgment v. Satisfaction
 1. A π can receive judgment against all the ∆s, which is when
court says all are liable
2. A π can receive only one satisfaction of the recovery from
one or multiple of ∆s
6. Mary Carter settlement agreement: allows plaintiff to settle with a
defendant/s but they must remain as defendants and help with the
case against the remaining defendant, out of whom’s settlement
they will be repaid partially or in full (Elbaor v. Smith, 1992 (bad
surgery)
1. Meant to help encourage settlement
2. Guarantees plaintiff a settlement of a certain amount
3. Make litigation against remaining defendant almost
inevitable because grants settling defendant veto power over
any settlement offer
4. AGAINST: sham of trial for jury because of settled
defendants helping, allow plaintiffs to buy support for case,
motivate more culpable defendants to make a good deal and
settle and end up paying little or nothing
5. FOR: Compensate by giving remaining defendant more
procedural advantages, jury is aware of agreement,
promotes settlement
3. CONTRIBUTION AND INDEMNITY
1. When a tort is committed by the negligence of two or more
concurrent tortfeasors contribution is enforced regardless of
whether or not the plaintiff named all of the tortfeasors in the
original suit or whether judgment was originally found against them
(Knell v. Feltman, 1949)
2. An injured party plaintiff in a suit from which a right to contribution
develops must have had a cause of action against the party from
whom contribution is sought
1. Cannot collect from contribution from the wife of the plaintiff
because plaintiff could not have brought suit against her
(Yellow Cab v. Dreslin, 1950)
3. Most states do not force a tortfeasor to wait for judgment before
paying through settlement with plaintiff and seeking contribution.
However, in addition to proving that other party was a joint
tortfeasor they must also prove that settlement was reasonable
4. When a release is given by a plaintiff to a defendant in good faith, it
discharges the tortfeasor to whom it was given from all liability for
contribution to any other tortfeasor (Slocum v. Donahue, 1998 (floor
mat/ driveway)
1. Indemnity: allows someone who is without fault, compelled
by operation of law to defend himself against the wrongful
act of another, to recover from the wrongdoer the entire
amount of his loss.
 2. Not all jurisdictions protect a settling defendant from
contribution but generally do if the settlement is made in
good faith
4. APPORTIONMENT OF DAMAGES
1. Cannot hold a tortfeasor liable for injuries incurred after the
damages the tortfeasor caused occurred when damages cannot be
apportioned (Buckman v. Pena, 1971, (subsequent car crashes))
2. Successive tortfeasors (unrelated accidents): second tortfeasor
could be held liable when damages cannot be apportioned
3. Successive tortfeasors (related accidents): Original tortfeasors
responsible for all and subsequent tortfeasors for their own
additions
4. Even if there is no common duty, common design or concert action,
when the negligence of two or more tortfeasors combines to
produce an indivisible injury, there can be joint and several liability
1. Shift burden to defendants to prove apportionment of
damages
5. When two separate damaging incidents occur, one of which is
strictly accident, the negligent party can only be held liable for such
injuries as were caused by his injury (Dillon v. Twin State Gas &
Electric, 1932 (boy on bridge/electric wire)
III. Duty of Care (Limits of Duty)
i. The courts recognize that a general duty is owed to avoid creating an
unreasonable risk of physical harm to others, however, there is a limit to the
scope of that duty
ii. There are three areas in which a duty of care is central in establishing liability:
1. The, often wrongful, act of a third party or a natural event has caused
physical harm to plaintiff that defendant has failed to take affirmative steps
to prevent
2. The negligent act causes non-physical harm to plaintiff, i.e. emotional
distress or pure economic loss, and
3. The negligent act causes losses in birth or conception where the
traditional categorizations of personhood are incapable of bestowing a
cause of action. This third area demonstrates that technological advances
and social change may give rise to new interests that may be protected by
negligence
1. PRIVTY OF CONTRACT
 “nonfeasance”: defendant made a promise and broke it
o Generally when there is only the promise and the breach, only the contract
action will lie
 Exceptions: 1) when a public utility or common carrier that has
undertaken the duty of serving the public, becomes liable in tort
when it fails to do so, whether or not it made a contract 2)
Defendant who makes a contract without the intention to perform it
is regarded as committing a form of tort of misrepresentation or
fraud for which a tort action of deceit will lie
 o Promises or undertakings may form the foundation of a special
relationship sufficient to impose a duty of care in negligence to take
affirmative action to protect a person from harm
 “misfeasance”: defendant had attempted performance but did the wrong thing
o allows for more options for recovery as when the defendant negligently
builds something which then collapses and wrecks the entire structure
 “Election and Gravaman”: in cases where there can be actions brought in both
tort and contract the courts have taken two different lines
o Election: Allow the plaintiff to choose the theory of action they would like to
proceed along
o Gravaman: the court will determine the gravamen or gist of the action,
which is to say the essential facts upon which the claim rests
 If defendant begins performance and then fails to act, he is liable
1. Historically
1. A person who is not privy to the contract assuring
performance cannot bring action against the breacher
(Winterbottom v. Wright, 1842 (mail carrier)
i. Duty rises strictly from the contract
2. A manufacturer may be held liable if they are manufacturing
an inherently dangerous item that will be used by people
other than the immediate purchaser, than despite there
existing no contract between the two, the manufacturer stills
owes the final purchaser some duty (MacPherson v. Buick,
1916 (broken wooden wheel)
2. Policy: by limiting plaintiffs to just those who have privity of contract,
you limit those who can recover, otherwise it would be too
widespread (H.R. Moch v. Rensselaer Water, 1928 (fire/low water
pressure)
3. One area where the privity limitation is still significant is the area of
professional relationships
1. Attorneys: sometimes utilized when they have committed
acts of professional negligence
4. MOSTLY GONE BY NOW
2. FAILURE TO ACT
1. There is usually not liability held in situations where defendants
failed to act in a way to prevent harm to the plaintiff (Hegel v.
Langsam, 1971 (college sued by parents)
2. There is no general duty to go to the rescue of a person in peril
1. There may be a legal obligation to take positive or affirmative
steps to effect the rescue of a person who is helpless or in a
situation of peril, when the one proceeded against is a
master or invitor, or when the injury resulted from use of an
instrumentality under the control of the defendant
2. Special Relations: in certain situations, duty has been
extended over an employer to their employee; ship captain
 sailor
 i. Limited to situations where the employee can’t look
after himself and limited to the course of employment
ii. Common carrier  passenger
iii. Innkeeper  guest
iv. Negligent injury to defendant: when ∆ injures π, ∆ has
duty to make reasonable effort to help π
v. Innocent injury by defendant: when ∆, without
negligence, creates a dangerous condition (highway)
it is agreed that he is under a duty to take reasonable
precautions against injury to persons using it
3. The duty to act affirmatively to protect another may be seen
to spring from a defendant’s voluntary undertaking and the
plaintiff’s detrimental reliance upon it
3. Many factors must be weighed in determining if there is a duty to be
imposed:
1. The foreseeability and severity of the risk of harm
2. Opportunity and ability to exercise care to prevent the harm
3. The comparative interests of and relationship between or
among the parties
4. The societal interest in the proposed solution, based on
considerations of public policy and fairness
4. Foreseeability of the risk of harm is the foundational element in the
determination of whether a duty exists (J.S. and M.S. v. R.T.H.,
1998 (wife’s duty for husband’s sexual abuse))
1. Actual knowledge, or
2. Constructive knowledge – in a position to discover the risk
5. Whether there is a ‘duty’ merely begs the more fundamental
question whether the plaintiff’s interests are entitled to legal
protection against the defendant’s conducts (“)
1. Analysis of ∆ responsibility for the risk or harm and whether
the ∆ had sufficient control, opportunity and ability to have
avoided the risk of harm
6. Determination of the existence of duty is really a question of
PUBLIC POLICY
7. Incases besides where duty is generated by voluntary undertaking,
the duty to take affirmative action to control the conduct of a third
person may arise in two ways:
1. The defendant stands in special relationship to the plaintiff
that requires him to protect him against the conduct of a third
person
2. The defendant stands in special relation to the third person
that gives him power to control over that person’s actions,
and is thus required to exercise that control to prevent them
from injuring the plaintiff
i. Wife
 ii. Therapist [sometimes] (Tarasoff v. Regents of UC,
1976 (told would kill))
1. Has created a legislative response to ease fear
of therapists
3. PURE ECONOMIC LOSS
I. Last hold of Privity of Contract
II. Pure economic loss: arises when a person suffers pecuniary loss not consequent
upon injury to his person or property. Fall into two categories:
1. Negligent misrepresentation or misstatement causing economic loss, and
2. Negligent acts causing economic loss
III. To recover for economic loss there must be physical damage to the proprietary
interest
IV. PUBLIC POLICY: the physical consequences of negligence usually have been
limited, but the indirect economic repercussions of negligence may be far wider
and thus it is not justified to allow for it (La. V. M/V Testbank, 1985 (PCP spill in
MS River))
1. DISSENT: doesn’t allow for innocent victims to recover, suggests
analyzing under negligence, foreseeability and proximate causation as
opposed to strict
1. EMOTIONAL DISTRESS
1. Where a definite and objective physical injury is produced as a
result of emotional distress proximately caused by the defendant’s
negligent conduct, the plaintiff may properly recover (Daley v.
LaCroix, 1970 (electrical explosion causing fright))
2. Most jurisdictions do not require that physical impact be made
3. Where plaintiff has narrowly escaped physical harm, courts have
granted recovery
4. Plaintiff may recover damages for an emotional distress caused by
observing the negligently inflicted injury of a third person only if,
plaintiff:
1. Is closely related to the injury victim
2. Is present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the
victim
3. Injury to victim must be substantial, and
4. As a result suffers serious emotional distress – reaction
beyond that which would be anticipated in a disinterested
witness and which is not an abnormal response to the
circumstances (Thing v. La Chusa, 1989 (mother did not see
or hear accident injuring her son)
i. Must balance the arbitrary lines which deny recovery
to some victims whose injury is very real against that
of imposing liability out of proportion to culpability for
negligent acts
II. Damages
 Three types of damages:
 o Nominal damages: small sum of money awarded to plaintiff in order to
vindicate rights and carry on defendant’s record; amount is unimportant
o Compensatory damages: Intended to represent the closest possible
financial equivalent of the loss or harm suffered by the plaintiff; to make
the plaintiff whole again
o Punitive damages: an additional sum over and above the compensation of
the plaintiff, awarded in order to punish the defendant, and deter others
1. PERSONAL INJURIES
1. “maximum recovery rule”: the legal standard to gauge a jury’s
damages verdict is for the judge to determine the maximum amount
which the jury could possibly find and if it is over to reduce it to that
amount
2. Five cardinal elements of damages (Anderson v. Sears, 1974
(burned child):
1. Past physical and mental pain
2. Future physical and mental pain
3. Future medical expense
4. Loss of earning capacity
5. Permanent disability and disfigurement
3. Evidence of damages: extremely important, use of demonstrative
evidence and experts has risen in last few years and have resulted
n larger recoveries for plaintiffs
4. Special damages v. general damages
1. Special= economic loss
i. Medical expenses (past & future)
ii. Lost wages: hourly wage during time period or cost to
replace her doing her job (child care)
iii. Loss or Impairment of future earning capacity: jury
must be persuaded the injury is permanent, expert
testimony to determine what plaintiff would have
earned in a lifetime, life expectancy
2. General= non-economic loss
i. Physical pain and suffering, mental aguish: past &
future, difficult to determine and best to leave to jury
1. Must be conscious to recover
ii. Loss of function or appearance
iii. Emotional distress
iv. Loss of Enjoyment of Life: contested element,
sometimes included in other areas, sometimes called
“hedonic damage”
3. Damage calculation: present value
i. Plaintiff is awarded a lump sum which reduces future
losses to its present value, with interest calculated as
part of the lump
4. Future Inflation: most jurisdictions have recognized the need
to account for future inflation
 5. Federal Income Tax: plaintiff’s award not subject to
5. A judge or appellate panel can only disturb the jury’s damage
findings if they find it to be so excessive or so inadequate as to
show that it is contrary to the law, in passion or prejudice rather
than according to their instructions.
1. New trial can be granted on damages alone if judge feels
jury was not affected in making their determination about
liability
2. Remittitur: New trial granted on condition that plaintiff will
refuse to accept a lesser amount
3. Addittur: conditioned on defendant refusing to pay higher
amount [not accepted by Supreme court]
6. Gifts: monies given to plaintiff as gifts do not count towards
defendant’s responsibility to pay and may in some cases result in
double recovery (Montgomery Ward v. Anderson, 1998 (hospital
discount)
7. Collateral Source Rule: when plaintiff receives money from a
source collateral to the tortfeasor it does not count towards
tortfeasors responsibility
1. May recover double but often plaintiff must pay back
insurance co. etc., when paid out by defendant
8. Benefits like free medical care, conferred gratuitously, does not
reduce defendant’s liability
9. Loss of Consortium: most court allow to be brought by spouses for
reduced capabilities of plaintiff
10. Lawyers Fees: generally not included in damages, contingent fee,
jury is not informed of contingent fee
11. Structured Settlements: instead of lump sum, smaller sums over a
period of time
12. Mitigating Damages: plaintiff is obligated to make attempt to
mitigate the damages caused by the defendant (Zimmerman v.
Ausland, 1973 (not getting knee surgery))
1. Plaintiff cannot recovery damages that he could have
avoided by reasonable conduct
2. PHYSICAL HARM TO PROPERTY
1. Property destroyed: plaintiff gets value of property at time it was
destroyed
2. Property damaged: difference in value of property before and after
damage
3. Property deprived of for time: value of use for time period deprived
1. How much it cost to rent another while deprived of
4. Value: determined by market value usually
1. At the time of wrong
2. In the place of the wrong
5. New York Rule: plaintiff may recover the highest value between
when he learns of the conversion and a reasonable period within
 which he could have replaced the goods: “highest replacement
value”
6. When property has only sentimental value, “personal value,”
determined by jury
3. PUNITIVE DAMAGES
 An additional sum over and above the compensation of the plaintiff,
awarded for the purpose of punishing the defendant and to act as a
deterrence to other possible tortfeasors
 Used when there is wanton disregard for laws
1. Indiana statute: gives plaintiff 25% of punitive damages, with 75%
going to state to encourage plaintiffs to bring punitive actions
(Cheatham v. Pohle, 2003 (sue for punitive damages))
1. Generally speaking, plaintiff does not have a right to the
money at all because it is a judgment meant strictly to punish
the defendant
2. General rule that punitive damages must accompany
compensatory damages, except in intentional tort of trespass
2. A defendant should be punished for their acts against the plaintiff,
not for being a reprehensible person or business in general (State
Farm v. Campbell, 2003 (wouldn’t payout))
3. State does not have the right to impose punitive damages for
wrongs that occurred outside the state
4. Punitive damages should bear some resemblance to compensatory
damages
5. Three guideposts in judge re-examining a punitive damages award:
1. The degree of reprehensibility of the defendant’s actions
2. The disparity between the actual or potential harm suffered
by the plaintiff and the punitive damages award
3. The difference between the punitive damages awarded by
the jury and the civil penalties imposed in similar cases
II. Defenses
1. PLAINTIFF’S CONDUCT
1. Contributory Negligence
1. If plaintiff is even slightly negligent then they are barred from
recovery
i. One person being at fault does not dispense with
another’s using ordinary care for himself (Butterfield,
1809 (riding a horse too hard))
2. Different than mitigation of damages because mitigation is
expected after the plaintiff has been injured
3. Burden of proof: with the defendant – an affirmative defense
4. Courts have been very reluctant to take issue of contributory
negligence away from jury through summary judgment or
judgment as a matter of law
 5. Causation in fact: Plaintiff’s negligence stands on the same
footing as the defendant’s and will only bar recovery if it was
a substantial factor in bringing about the result
6. Courts have subtly confined the defense by narrowly limiting
the scope of proximate cause
7. Not an applicable defense to an intentional tort
8. “Last clear chance” rule: if the ∆ had the opportunity to avoid
the accident after the opportunity was no longer available to
the π, the ∆ is the one who should bare the loss
i. π is negligent, but if not for the ∆’s negligence the
accident still would not have happened
ii. developed mostly as a way to override contributory
negligence when π is barely negligent
9. The minority of states that still have contributory negligence
apply the last clear chance rule
2. Comparative Negligence
1. Pure v. Modified comparative fault (McIntyre v. Balentine,
1992 (2 negligent drivers))
i. Pure comparative fault: Plaintiff’s damages are
reduced in proportion to the percentage negligence
attributed to him
ii. Modified comparative fault: plaintiff’s recover as in
pure jurisdictions, but only if the plaintiff’s negligence
does not exceed or is less than the defendant’s
negligence
1. Only differ in 50/50 cases
2. POLICY: contributory negligence bars plaintiff’s from
recovering when they should but comparative should not go
so far as to allow a plaintiff to recover when they are almost
entirely at fault
3. Burden of proof: on defendant to prove that plaintiff was also
negligent and was a proximate cause to their own injuries
3. Assumption of Risk
1. Express Assumption of Risk (Seigneur, 2000 (injury under
gym contract))
i. Two basics issues involved when defendant asserts
that plaintiff expressly assumed risk:
1. Whether the risk that injured plaintiff fell within
the unambiguous terms of the agreement
2. Whether the contract itself violates public
policy and therefore should not be enforced
2. Implied Assumption of Risk
i. Elements:
1. Actual knowledge of the particular risk
2. Appreciation of its magnitude and
3. Voluntary encountering of the risk
 ii. Difference between Assumption of Risk and
Contributory Negligence:
1. The essence of contributory negligence is
carelessness; of assumption of risk,
adventurousness. Thus an injured person may
not have acted carelessly, may have exercised
the utmost care, yet may have voluntarily
assumed a known hazard
2. Assumption of risk involves the meeting of a
subjectively known risk; contributory
negligence may involve a plaintiff exposing
himself to a danger of which he was
subjectively unaware but which would have
been apparent had he used due care.
1. Risk is very narrowly defined by courts
iii. Strict assumption of risk is not reasonable; landlord
builds fire risky building and tenant runs in to save
child – technically barred from recovery, virtually
unused
iv. Implied-qualified assumption of risk: virtually the same
as contributory negligence – a plaintiff acting
unreasonably in a situation, running into fire to get
fedora
1. Court should move to comparative negligence
(Blackburn, 1977)
v. Contributory negligence is thrown out, so what to do
about assumption of risk?
1. Keep but doesn’t bar you from recovery if
reasonable
2. If unreasonable will reduce recovery but not
necessarily bar you completely, more and
more like comparative
3. Almost like proximate cause, which could cut
off liability
III. Vicarious Liability
1. RESPONDEAT SUPERIOR
 Imputes the negligence of one person on another due to a special relationship
between the defendants
 All rules have involved efforts by the court, explicitly or no, to find a financially
responsible defendant
 Without exonerating the wrongdoer, who remains liable and will have to
indemnify the other defendant to the extent able, the liability is imposed on both
 Reasoning: like an employer’s relationship to an employee, the person who, in a
situation of uncertainty, has a degree of control over how it will turn out and who
stands to gain if it goes in his favor, must bear the risk that it will turn out to harm
another
 In a way, like strict liability
1. Employer is generally responsible for the actions of their employee
undertaken in the course of their work (Bussard, 2003 (pesticide))
1. Acts strictly necessary to the comfort, convenience and
health of employee while at work although strictly personal,
do not take the employee outside the scope of work
2. “going and coming” rule: employers are not responsible for
employee’s commute
2. An employee was acting within scope of employment when he is
performing services for which he has been employed or when he is
doing anything reasonably incidental to his employment (O’Shea,
2003 (car work while delivering tickets))
1. Test is not whether this specific conduct was expressly
authorized or forbidden by the employer but whether such
conduct could be reasonably foreseen from the nature of the
employment and duties of the employee
2. “Slight deviation” rule: must be determined whether
defendant was on a frolic or a detour, the latter being a
deviation that is sufficiently related to the employment to fall
within its scope, while the former is the pursuit of the
employee’s personal business as a substantial deviation
from employment
i. To determine whether in scope of employment, must
determine factors:
1. The employee’s intent
2. The nature, time and place of the deviation
3. The time consumed in the deviation
4. The work for which the employee was hired
5. The incidental acts reasonably expected by the
employer and
6. The freedom allowed the employee in
performing his job responsibilities
3. Employer cannot insulate himself from liability by imposing rules or
safety standards on employees, no matter how specific or detailed
4. Employer may also be held vicariously liable for intentional torts
2. INDEPENDENT CONTRACTORS
1. An independent contractor does not qualify for respondeat superior
1. An independent contractor is one engaged to perform a
certain service for another according to his own methods
and manner, free from control and direction of his employer
in all matters connected with the performance of the service
except as the result thereof
2. Delegable v. Non-delegable duties: whether duties are able to be
completely delegated to an independent contractor
1. One who carries on an activity which threatens a grave risk
of serious bodily harm or death unless the instrumentalities
 used are carefully maintained and who employs an
independent contractor to maintain such instrumentalities, is
subject to the same liability for physical harm caused by the
negligence of the contractor in maintaining such
instrumentalities as though the employers had himself done
the work (Maloney v. Rath, 1968 (brakes))
2. POLICY: a nondelegable duty acts to assure that when a
negligently caused harm occurs, the injured party will be
compensated by the person whose activity caused the harm
3. Vehicle operator is free to choose person who does
maintenance and is able to demand indemnity from
contractor
3. Apparent authority: one who expressly or impliedly represents that
an independent contractor is their employee or servant may be held
vicariously liable
4. Illegal activities: if contract for illegal activities, always vicariously
liable
3. JOINT ENTERPRISE
 Two or more people working in a business relationship, can hold
other partner vicariously liable
1. Elements of a joint enterprise (Restatement (Second) of Torts §
491):
1. An agreement, express or implied, among the members of
the group
2. A common purpose to be carried out by the group
3. A community of pecuniary interest in that purpose, among
the members and
4. An equal right to a voice in the direction of the enterprise,
which gives an equal right of control
2. POLICY: limiting the application of the doctrine to a venture having
a distinct business or pecuniary purpose, we avoid the imposition of
a basically commercial concept upon relationships not having that
characteristic
II. Strict Liability
 Court imposes liability even though the defendant neither intentionally acted nor
failed to live up to the objective standard of reasonable care that traditionally has
been at the root of negligence law
1. ANIMALS
1. Imposed on those who keep, harbor or possess the animal
2. Owners on animals likely to roam have strict liability for the damage
they create
1. Mostly barnyard type and not dogs and cats who are “more
difficult to constrain”
2. “fencing out” rule: if animals break out of fencing, owner is
strictly liable
3. differences in rules in various parts of the country
 3. Wild animals
1. Strict liability if the injure someone
2. Domestic animals: owner only strictly liable if they had
reason to know the animal would injure another person
4. Domestic Animals
1. “One bite” rule: an animal is allowed one bite before the
owner is considered strictly liable unless,
2. owner has knowledge of or reason to know that animal has
propensity to cause damage
3. Courts have declined to create species-specific standard of
care (i.e. pitbulls)
4. If can’t prove strict liability, must prove negligence to recover
2. ABNORMALLY DANGEROUS ACTIVITIES
1. If you have something that, though not inherently dangerous, could
create damage, or mischief, on your land and it escapes, you are
strictly liable (Rylands v. Fletcher, 1865 (reservoir flood))
1. Usually in reference to things that are not naturally occurring
on the land or which are not being used for their natural use
2. Not negligence, but hold liable anyways
2. Ultrahazardous activity: activity caused abnormally dangerous risk,
would be so regarded anywhere
3. Abnormally dangerous: depends on the nature of the location
where the activity takes place
4. The defendant will be liable when he damages another by a thing
or activity unduly dangerous and inappropriate to the place where it
is maintained in the light of the character of that place and its
surroundings (Miller, 1995 (firing range)
5. Factors to be considered in determining whether there is an
abnormally dangerous activity (do not need all to apply)
(Restatement § 519):
1. Existence of a high degree of risk of some harm to the
person, land or chattels of others
2. Likelihood that the harm that results from it will be great
3. Inability to eliminate the risk by the exercise of reasonable
harm (**crux of abnormally dangerous situations)
4. Extent to which the activity is not a matter of common usage
5. Inappropriateness of the activity to the place where it is
carried on and
6. Extent to which its value to the community is outweighed by
its dangerous attributes
6. The essential question is whether the risk created is so unusual,
either because of its magnitude or because of the circumstances
surrounding it, as to justify the imposition of strict liability even
though the activity is carried on with all reasonable care
7. SPANO still best example
 8. Abnormally dangerous is a property of activities, not of substances
(Indiana Harbor RR, 1990 (hazardous spill in Chicago))
9. POLICY: strict liability is founded upon the policy that imposes upon
anyone who for his own purposes creates an abnormal risk of harm
to his neighbors, the responsibility of relieving against that harm
when it does happen
10. Very similar to negligence per se, but court is tentative about calling
it negligence because they do not want to stigmatize activities
which are inherently beneficial to society (blasting, etc.)
3. LIMITATIONS ON STRICT LIABILITY
1. Strict liability replaces the need to find duty and breach of duty
2. However, must show causation and proximate cause, plaintiff or
injured property must be within the “zone of risk,” like Palsgraf
1. Must limit liability to foreseeable risk, cannot impose strict
liability to protect against harms incident to plaintiff’s
extraordinary and unusual use of land (Foster, 1954 (mink))
3. There cannot be strict liability for acts of God which owner had no
reason to anticipate (Golden, 1952 (huge hurricane))
4. With animals, if plaintiff voluntarily puts himself in the way to be hurt
knowing the probable consequences of his act, so that he may
fairly be deemed to have brought the injury upon himself (Sandy,
1925 (horse))
II. Products Liability
 Liability of a manufacturer, seller, or other supplier of chattels, to one with whom
he is not in privity of contract, who suffers physical harm caused by the chattel
 Strict liability has become the paramount basis of liability for manufacturer’s of
products, with negligence and breach of warranty also remaining important
1. DEVELOPMENT OF THEORIES OF RECOVERY
1. Negligence
1. No strict liability to third parties but can sue for negligence in
not inspecting (MacPherson v. Buick (wooden tire))
2. **Despite the break with negligence in MacPherson, most
plaintiffs lawyers will still use in cases, because negligence
shows juries that someone was at fault, as opposed to strict
liability
2. Warranty
 Hybrid of tort and contract
 1700 - Established that the tort action would lie for a mere
affirmation of fact (express warranty) made without knowledge of its
falsity or negligence and as a result became a form of strict liability
 1778 – warranties gradually became regarded as express or
implied terms of the contract of sale, and the action on the contract
became the usual remedy for any breach
 Tort action still allowed to be brought
1. Express Warranties
 i. When advertisements promise a certain feature that is
not readily detectable by the consumer, they are liable
for not delivering the product as they said (Baxter,
1932 (shatterproof windshield))
1. If a person states as true materials facts,
susceptible of knowledge, to one who relies
and acts thereon to his injury, if the
representations are false, it is immaterial that
he did not know they were false, or that he
believed them to be true Restatement § 402B
2. Most courts require that plaintiff show that he
relied on the representation
3. Consumer Protection Acts
2. Implied Warranties
i. A manufacturer is expected to make a product that is
safe for the use which it is intended or which the
buyer makes known that he will use it for
(Henningsen, 1960 (cars))
ii. Uniform Commercial Code (UCC)
3. Strict Liability in Tort
i. Product defects (manufacturing, design, defect in
warning/info)
1. Elements
1. Seller is engaged in selling a product
2. Product gets to buyer without change
3. Defect in product is unreasonably
dangerous
2. Liability applicable even though
1. Seller has exercised all possible care in
the preparation and sale of his product
2. The user or consumer has not bought
the product from or entered into any
contractual relation with the seller
3. A manufacturer 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.
Table of Contents
I. Introduction of Torts 1
Development of Liability Based Upon Fault 1
Intent 1
II. Negligence 1
Elements 1
A Negligence Formula 1
Forseeability 1
Risk v. Burden 2

Questions
 I. Go over risk v. burden and its role in forseeability, just want exact definition in my
head, individual v. public
II. Difference in ordinary care standard between born clumsy people and physically
disabled person? Makes sense, but why? Because a disabled person can use
means to reach ordinary standard?
III. How well do we need to know/use Restatement?
IV. Aggravated negligence? Need to know?
V. Make sure you understand the role of criminal statutes in common law civil suits.
Note 1 on p. 205.
1. Are all statutes used in tort cases originally criminal statutes? No, right?
VI. Pg. 319, purely economic loss in proximate cause cases?
VII. Go over joint and several liability/contributory negligence/comparative negligence
1. Contributory negligence v. contribution to recovery