1.

Intentional Torts
a. Battery
i. A acts
ii. Intending to cause harmful or offensive contact
1. Intent is present when the defendant desires or is substantially certain the
elements will occur (Garratt citing what is now R2 Torts §8A) (These are the
Purpose and Knowledge prongs of intent)
a. Knowledge Prong is a separate liability standard. If actor knew his actions
would result in harm, it is presumed he intended for the results to happen
i. Subjective Standard. Sufficient but NOT necessary. Garratt High std
b. If in the process of an attack, attacker accidentally does something to cause
attackee to be hurt more than the attacker intended then the attacker is still
liable. Once attack is commenced, intent is no longer an issue. Intention to
harm apparent and undeniable. Nelson v. Carroll
2. Standards:
a. Intent to touch, any touch (Wagner)
i. Caveat-we all implicitly consent to certain socially accepted types of
touching
b. Intent to harm or offend by touching
c. Middle Option-Intent to cause “unlawful” (against social norms) contact
(Vosburg shin kicking), but no need for intent to cause harmful contact (Cole
v. Hibberd).
3. Transferred Intent (R2 Torts §13)
a. Same Victim Different Tort-transfer from tort to tort-Intend to assault but
end up battering=Intent to batter
b. Victim to Victim. In re White-Tortfeasor liable for the direct, natural, and
probable consequences of his actions, even if he ended up shooting someone
he did not mean to.
c. Across tort and victim.
4. Harmful/Offensive:
a. Test for Offensiveness is OBJECTIVE-would the contact offend a
reasonable sense of personal dignity. R2
i. Contact must violate some prevailing social standard
iii. Such contact occurs
1. Extended Personality – contact need not be skin-to-skin if thing touched
deemed to be part of personality (Fisher plate snatching)
b. Assault
i. Elements
1. A acts
2. Intending to cause P the apprehension of IMMINENT harmful or offensive
contact in P
3. A’s acts causes P reasonably to apprehend such a contact
ii. For mere words to constitute an assault, they must create a reasonable
apprehension of imminent harmful contact
1. Brooker-no assault because of distance and conditional nature of threat
 2. Vetter-threat causing reasonable apprehension that it will be carried out based
on things like gender of parties, time of day, proximity, etc. can be assault.
c. False Imprisonment
i. A acts,
1. This does NOT mean that A has to do the confining. He can order others to
confine and still be liable. His "act" is the ordering.
ii. Intending to confine P;
1. The confinement must be in a bounded area.
a. If area is too broad and allows free movement, no imprisonment (Shen v.
Leo A. Daly Co.)
b. Area of confinement can be mobile, like a car (Wilson v. Houston Funeral
Homes)
c. If the victim reasonably perceives that the tortfeasor will prevent her from
leaving, she is confined. Ball v. Wal-Mart
d. If the victim's only means of egress is one that would risk harm to herself or
others, she is confined.
e. If the victim's family or property, and perhaps even reputation, are
threatened if the victim leaves, she may be deemed confined.
i. Threats that will supposedly be carried out after the end of confinement
are generally insufficient
2. If the confined can leave with minimal effort, or has no reason to believe he
will be met with resistance, no confinement. (see Fojtik v. Charter Med. Corp.)
iii. A must actually intend to confine P. This is an intentional tort.
1. Unintentional confinements sound in negligence.
iv. A's act causes P to be confined; and
v. P is aware of her confinement
d. Shopkeeper’s Privilege
i. reasonable belief person had stolen/attempting to steal
ii. Detention for rsble time
iii. Detention in rsble manner. Grant v. Shop-N-Go Market
2. Affirmative Defenses
a. Consent-key is to figure out exactly what P consented to
i. Express
ii. Implicit-drawn from inferences from how P acted
1. "Actually and reasonably believed" standard: the defendant must have
actually and reasonably believed consent was given (O'Brien v. Cunard S.S. Co.
vaccination case)
2. Consent cannot be secured by fraud, misrepresentation, or coercion.
a. "Apparent consent will sometimes be deemed ineffective if the defendant
had reason to know that the consent was not freely given. Often in such cases
a critical issue will be whether the alleged tortfeasor occupied a position of
power or authority in relation to the victim."
3. Scope of Consent: Giving consent for one thing (certain kinds of football
instruction, operation on a certain ear) does NOT mean you've given consent for
another thing (being slammed to the ground by coach, having other ear worked
on.)
 b. Self Defense
i. Reasonable force may be used by a victim who actually and reasonably believes
it necessary to protect himself from imminent injures (e.g. harmful contact or
confinement) (R2 §63)
ii. Victim must reasonably believe force to be necessary, however belief need not be
correct
iii. Force must be proportional – force intended to inflict death or SBI only justified if
victim believes he would suffer SBI or death from the attack (Haeussler one punch ok
for self defense from neighbor in doorway)
iv. Deadly Force allowed
1. When under threat of imminent death/serious bodily injury. Caveat-if safe
retreat, no deadly force.
2. When being attacked in one’s dwelling.
3. If a safe retreat is available, no deadly force allowed unless attack is in one’s
dwelling
v. Defense of Others – privilege to use reasonable force to protect third party
whenever actor reasonably believes a third party is entitled to exercise self-defense
c. Defense and Recapture of Property
i. Reasonable force may be used to prevent a tort against real or personal property.
Unlike self-defense, reasonable mistake will not excuse force directed against
innocent party
ii. No deadly force --may only be used to avert felony of violence – disproportionate
to save property
d. Defense of Habitation
i. Can use deadly force to protect ones dwelling when intrusion threatens death or SBI
ii. CANNOT use deadly force to protect non dwelling real property. Katko
1. Further, cannot install mechanical devises to do what you couldn’t do
3. Damages
a. Compensatory-economic and non economic loss
b. Punitive-available if P can prove tortfeasor acted maliciously or willfully and wantonly
i. award of punitive damages is entirely at the discretion of the fact finder (typ. jury)
4. Intentional Infliction of Emotional Distress
a. IIED arose to fill gaps in between other intentional torts. Has a threshold.
b. IIED Elements
i. Outrageous or abominable conduct
1. Test for outrageousness-cause a rsble person to cry outrageous. Beyond all
bounds of decency.
2. Mere threats not outrageous. Threats combined with supportive behavior
composing a campaign of harassment is. Littlefield v. McGuffey
3. Factors that lower outrageous standard:
a. Abuse of power,
b. D exploiting known vulnerability in P
ii. Done for purpose of causing severe distress in victim.
1. RECKLESSNESS is also allowed for IIED
2. Transferred intent DOES NOT apply to IIED.
 3. Bystanders and Derivative Actions: Members of immediate family at the time
and anyone who is present and suffers emotional distress can recover. (This
in some ways EXPANDS BYSTANDER CLAIMS beyond standard loss of
consortium or wrongful death actions by providing an independent cause of action
in the family member)
4. Things like time off work, visits to therapist, physical reactions ar helpful.
iii. Causes severe emotional distress.
1. so severe that no rsble person could be expected to endure it
c. Outrageousness is a matter of law=judicial discretion. 164 Mulberry v. Columbia
University
d. IIED unique among intentional torts in that claims can go forward on a showing that D
was only reckless.
i. Recklessness has higher standard than negligence. R-D did not intend but should
have known that his conduct would most likely cause severe distress.
e. IIED is broad and narrow. Its elements are broad and subjective. Narrow-judges are
reluctant to call something IIED. They use judicial discretion to keep IIED’s application
narrow. Jones v. Clinton
f. No transferred intent for IIED. 46(2) P, as a third party, can recover if D’s actions
reckless in regards to P and P is present when D’s outrageous conduct occurs. Wife
watching husband beaten.
g. IIED and Employment Discrimination
i. The injury MUST NOT fall under a workers' comp statute
ii. Perhaps the most likely setting for a successful IIED claim. (Wilson for age
discrimination; Stockett v. Tolin for sexual harassment.)
iii. Charges must first be filed with the EEOC, who notifies the employer and decides
whether it is going to sue.
iv. Employees can now get punitives as well as compensatory damages based on the
economic harm they suffered

5. Negligence
a. Elements
i. P suffered an Injury
1. Physical harm
a. Bodily Harm
b. Damage to property
2. Emotional Distress
3. Economic Loss
ii. A owed a duty to a class of persons including P to take care not to cause an injury
of the kind suffered by P
1. Duty is a question of law for judges
2. Duty is Relational. This means that there must be an "alignment" between duty
and breach such that the breach constitutes "carelessness toward [the plaintiff],"
not just in general. (Palsgraf—Cardozo).
a. "[Tort law] empowers . . . P to complain about another's conduct only if
that conduct constitutes a wrong to P (or persons similarly situated to P), as
opposed to a wrong to someone else that happens to injury P.
 b. The question: Is it a wrong to P, or is it a wrong to someone else that
happens to injury P? (This question "aligns" duty and breach in the Palsgraf
way)
3. General Duty of Reasonable Care
a. Duty to avoid causing reasonably foreseeable harm to others (Heaven v.
Pender)
i. This kind of duty is what a reasonable and prudent person would do
under similar circumstances
b. If D can envision a certain class of people being injured by D’s product
if it is negligently made, D’s owes that class of people a duty of care.
Manufacturer bears responsibility to inspect when buyer typically not
sophisticated, but might be free from liability if someone else does an
inspection after product is manufactured. Duty does not come from contract.
It comes from tort law. MacPherson v. Buick

c. Courts cautious in extending duty. Foreseeability not just a threshold.

Court factors in other normative issues. Thus, it is rsble forseeability and
often court looks for what class of people is the most foreseeable and extends
duty just to that class. Mussivand v. David (adulterer with STD’s duty
extends to spouse of paramour but not to paramour’s other partners.)

4. Affirmative Duty to Rescue or Warn (Unreasonably FAILED to act)

a. No duty to rescue, but there are some exceptions when there is duty
b. Maybe be morally wrong to rent canoe to drunk guy and then let him
drown, but this is nonfeasance and no duty is owed. Osterlind
c. Exceptions-When a duty to rescue/warn is owed
i. If you caused the danger, but danger must be imminent
ii. If you have a special relationship with the person (railroad/customer,
hospital/prisoner, perhaps friend/friend)
1. Heffern, where the court held that a person who purchases narcotics
for someone else has a duty to help in case of an overdose.
2. Narrow exception for special relationship, not between P and D,
but between D and 3rd party. Exception applies only to therapist-
patient relationship.
a. Therapist therefore has duty to warn foreseeable victim when
therapist knows or should have known that patient poses a serious
danger of violence to victim. Tarasoff (Accepted by ½ of states)
iii. If you are a business and you invite people onto your property (Baker
v. Fenneman and Brown).
iv. If you begin undertaking to help rescue
1. Under common law, you have to use reasonable care in rescuing,
but many states now have "Good Samaritan" laws which immunize
rescue workers from liability.
5. Premises Liability-Special Duty Rule
 a. Owner owes invitee duty to keep premise rsbly safe. When not rsbly safe,
owner has duty to warn only when the danger is hidden and not in plain, open
view.
1. Remember to look at scope of invitation. If invitee goes beyond
scope, he becomes a trespasser. Leffler
b. Owner owes trespasser no duty to keep premises rsbly safe.
i. Exceptions to no duty to trespassers
1. owner must take rsble care to avoid causing injury to child
trespassers. Previously, owner had duty to not maintain an attractive
nuisance. Today, owner has duty only if owner had reason to foresee
that children might enter on the property and be endangered by
something on it i.e., a pool.
2. Limited duty owed when owner knows or should have none that
trespassers constantly intrude upon a portion of owner’s land. Owner
has duty to take steps to warn these habitual trespassers of risk posed
by artificial conditions on the land.
c. Licensee owed intermediate level of care i.e., owner who knows of hidden
danger has duty to inform licensee, not trespasser. Leffler
i. About ½ of states reject Licensee distinction. Treat them as invitees
d. Some state enacted Recreational Use Statutes to immunize owners of
properties that are used for recreational purposes.
e. Rowland v. Christian-duty owed to trespasser/invitee/licensee. Distinction
between them no matter.
i. Judges should not use duty, a legal issue, to short circuit negligence
claims under premises liability. Jury should decide whether or not P
should recover. Only 6 or 7 states have accepted Rowland. But Rowland
has led to licensees being treated like invitees in 21 states.
ii. Duty expansion of Rowland and McPherson is a transfer of power from
judge to jury.
6. Pure Economic Loss. Heaven/McPherson duty applies only to physical
injury/damage to property
a. Aikens v. Debow-Courts hesitant to say duty owed for just economic
loss. D could foresee that this class of persons including the P would suffer
economic loss, Still NO Duty. Majority Rule
i. Not willing to extend limitless liability. Why? Too many suits would
be brought and people would be forced to act so cautious that they would
accomplish nothing.
ii. Valdez-only commercial fisherman can recover for economic loss from
oil spill. they have a quasi property claim to fish.
iii. Robins Dry Dock-economic loss alone does not warrant recovery
absent special relationship. Lessor’s rights insufficient to warrant
recovery.
iv. J’Aire-tenant able to recover based on fisherman exception.
Lease=property interest-McPherson applies
 v. Some states allow recovery when the defendant knows or has reason to
know a particular class of plaintiffs will suffer damages (People Express
Airlines).
iii. Breach of duty- Always identify P’s theory of breach, always!
1. Breach is a question for the jury.
2. Breach is when you FAIL to act as a reasonable person would under the same
or similar circumstances.
a. Breach does not automatically exist if we can imagine something else that
could have been done. It has to be something that a reasonable person should
have done but the defendant didn't, or should not have done but defendant did.
b. Some have tried to formalize the breach inquiry
i. Hand Formula: If Burden (B) < Probability (P) x Loss (L), then there is
liability (Carroll Towing).
ii. But it is very difficult to set the scope of B, P, and L. Some limit P and
L to foreseeable loses.
iii. May be helpful when B<<<<PxL and vice versa Zapata
iv. Works well in $ for $ cases where data is available.
c. OBJECTIVE, not subjective standard. (Vaughan v. Menlove)
i. People who are NOT CAPABLE of living up to the standard are still
held to the standard.
ii. Caveat:
1. the blind person is held to the reasonable blind person standard.
2. "Tender Years" Doctrine: Under common law, children under 13
were not liable for their torts. Some states have a modified system
in which children from like 7-13 where there's a modified "objective
reasonable child of that age" standard. (Applehans upholds the tender
years doctrine).
3. Parental Liability-i. Negligent Supervision-(1) parent aware of
specific prior conduct sufficient to put them on notice that such
conduct likely to happen again, (2) parent had opportunity to control
child. R2 §316. ii. negligent entrustment-parent carelessly gives child
access to dangerous instrumentality. Rios v. Smith
4. BUT the dumb person is NOT held to the reasonable dumb person
standard.
3. Judge can rule on breach when D acted with ordinary care to the extent that no
rsbe jury could find otherwise. Campbell v. Kovich (D quickly inspected lawn
and watched where he was mowing. AMOL, no breach.)
4. Foreseeability-Ordinary care does not require extraordinary foresight. If
circumstance generating P’s injury unforeseeable, court/jury may be willing to
say no breach. Further, to hold D liable for circumstances out of D’s control
would make d an insurer. Adams v. Bullock (Cardozo-electric lines for trolley
cannot be insulated nor buried)
5. Extraordinary Care-Common Carriers. Jones v. Port Authority

6. Custom and Ordinary Care

 a. Non-Professional Customs-Ordinary standard of care applies regardless of
industry custom. Jury can second guess custom. The T.J. Hooper
b. Professionals-anti-TJ Hooper
i. For doctors and lawyers and other professions, customary care
IS ordinary care under the breach standard. If you are following
the customary care, YOU CAN'T BREACH. (Johnson v. Riverdell
Anaestesiological Associates).
ii. Exception-Informed Consent Tort-when claim of professional
malpractice alleges (1) failure to provide sufficient info and (2) said
failure results in P being harmed, prudent patient standard applies-did
doctor provide all the info a prudent patient would require. Jury can
second guess, back in T.J. Hooper Land. Largey
7. Res Ipsa Loquitur-mere accident’s occurrence suggests/proves there was
negligence
a. Allows plaintiff to survive a motion for summary judgment on breach. The
issue then goes to the jury, and the jury is allowed, but not required, to infer
from the mere injury that breach occurred. Bryne v. Boadle
b. Requirements for Res Ipsa Loquitor Kambat-swallowed sponge case
i. The defendant is in exclusive control of the instrumentality of injury
ii. This has to be the kind of thing that just doesn't normally happen
without someone being careless (applies to all factors involved)
iii. The plaintiff didn't do anything to bring about their harm

iv. Breach was Actual and Proximate Cause of P’s Injuries

1. Actual Cause
a. Legal Test-But for Test (99% of the time). Usually applied by Jury. But
for D’s careless actions would P be injured. If yes, no causation.
b. Preponderance of the Evidence Standard

c. Burden Shift-If two Ds are known to exhaust the universe of possible

tortfeasors, and there is only one actual tortfeasor, but we can't figure out
which one of the two did it, then we will hold both liable unless one can prove
the other did it. Summers v. Tice. This shifts burden of proof to defendant.
Doesn’t apply for if more than 2 Ds

d. AC and Toxic torts.

i. 2 prongs both must be satisfied.
ii. (1) General. Is substance capable of causing the kind of harm P
suffered.
iii. (2) Specific. Did substance cause P harm. Expert testimony is the
only way for P to satisfy his burden of persuasion for these prongs
1. Rule of Evidence 702-Expert testimony/evidence must be qualified.
Considerations 1.has it been tested, 2.subject to peer review, 3. does
expert have history with topic, 4. does it have widespread acceptance?
Daubert v. Merrell Dow (overruling Frye test which looked only at
 widespread acceptance)
a. This was meant to make it easier to have experts testify, but the
opposite has happened. Judges are now more willing to throw out
experts. Thus, SCOTUS through Daubert has had a huge impact
on tort litigation, an area of law which SCOTUS itself says it has
no duty to define.
e. Loss of Chance Injury-Redefine P’s injury to allow recovery-recognized
by few jurisdictions
i. D caused P to lose the chance to survive i.e. chance of surviving went
from 37% to 0% because of something D did not do. 37% of damages
recoverable. Falcon v. Memorial (loss of chance outlawed by statute
shortly after this decision in Michigan)
ii. Only applies when D owed it to P to give P the best chance of survival.
Almost exclusive to medical malpractice and wrongful death suits
iii. Only applies when P dies. Also, need good, hard data for LoC to apply
f. Zone of Danger Test-applies when emotional distress is the only injury
suffered. P who has in the zone of imminent peril created by D’s careless
act but escaped without physical injury may be able to recover. Typically in
NEID cases.
g. Peril must be imminent. Buckley (also holding P must have suffered an
injury before recovery is allowed.)
h. Multiple Necessary Causes-There can be multiple but for causes. For
D to be liable his actions need not be the only cause, just a but-for cause.
McDonald
i. Multiple Sufficient Causes-But-for test fails. Substantial Factor Test
Applies
i. P must establish that D’s actions were a sufficient cause before
substantial factor test available. Aldridge v. Goodyear

1. Proximate Cause-All other elements must be satisfied before analyzing

PC
i. Injury must be caused by harm created by D’s carelessness.
Allbritton (no PC because P injured as a result of fire caused by D and not in
response to fire. Injury must occur within the scope of the risk created by D’s
carelessness. Fire was out, no rush, P choose to talk dangerous short cut. P’s
actions, although primarily used in comparative fault, provide insight into PC
analysis.
ii. 3rd Restatement replaces PC with scope of risk. Was P’s injury
within scope of risk created by D’s carelessness
iii. Foreseeability question-was the manner in which P injured
foreseeable result of D’s carelessness. Jolley
iv. Was P’s injury both natural and probable based on D’s
carelessness
v. Proximate Cause and Superseding Cause-Does nature of 3rd
party intervener let D’s carelessness of the hook.
 a. Factors in determining whether act superseding to necessary
extent. Pollard
1. Were 3rd party’s actions foreseeable by D
2. Did 3rd party take “ownership” of risk created by
D’s carelessness (3rd party’s actions planned, methodical, and/
or consistent?)
3. Did 3rd party add mischief to or increase
dangerousness of risk created by D
b. Clark-example-3rd party’s actions not enough. Boy did not
add any danger to explosives Both 3rd p and D liable.
vi. Palsgraf Issue-Is the duty owed by D to P the duty that was
actually breached.
a. Was it foreseeable to D that his careless action would injure P? In
other words, were D’s actions careless unto P? If no, then no breach as to
P. Thus, D not liable. Palsgraf (important that package was unmarked and
that P was standing some distance from Conductor D. D truly had no way
of knowing helping man with package would hurt P. Thus, in helping, D
may have breached duty to man with package, but D did not breach duty
to P—D fulfilled duty to take ordinary care as to P.)
b. Palsgraf Prong-Could D foresee injuring a person like P by acting
carelessly. P must show that the duty owed P was the SAME duty that D
breached. (RR owed Palsgraf a duty of care, but not a duty to protect her
from unmarked packages exploding)
c. Proximate Cause Prong-could D foresee this type of injury
happening to person like P by undertaking careless act. Kinsman applies
this prong VERY broadly.
d. Both must be satisfied for there to be causation
vii. PC and Affirmative Duties-If D owes P affirmative duty whether
there was a superseding cause is irrelevant. D owed P a duty regardless.
Tarasoff (intentional murder does not erase D psychiatrist’s duty to warn)
a. Courts reluctant to assign affirmative duties to social hosts and gun
manufacturers.
1. Reluctant in general. Fast Eddie’s
2. Negligence Per Se
a. In the First Instance NPS relates to breach.
i. A violation of a statutory standard of care constitutes NPS i.e. the breach
standard is satisfied). Dalal. The legislature has spoken on the issue so
the jury has no authority.
ii. Not all statutes qualify because they fail to establish a
standard of care e.g. licensing standards.
iii. In NPS D can still be found not liable if I, D, or C not
satisfied.
b. In the Second Instance NPS is about Palsgraf and PC. (1)Was
statutory standard care enacted for people like P Bayne v. Todd, and (2) was
the injury the kind of injury the legislature considered when drafting the
statutory standard of care. Victor. Both must be satisfied. If no NPS, P can
 still attempt to recover under ordinary Negligence, i.e., pretend the statute
doesn’t exist. But, if P can’t prove NPS, it is unlikely that he will be able to
prove N.
c. Excused violations.
1. Young Children
2. When violation of the statute was the more prudent
course of conduct for the defendant to follow. Tedla.
d. Regulatory Compliance is usually treated as demonstrative of
rsblness but not dispositive.
1. Exception-for some products manufacturers,
especially in heavily regulated industries, e.g. auto,
compliance=carefulness

11/04 Affirmative Defenses to the Tort of Negligence

1. Contributory Negligence-if P negligent, careless, at all, D not liable. Only exists in
AL, NC, VA, MD, and D.C.
2. Comparative Fault-Majority Rule
a. Pure CF-P can recover regardless of P’s level of fault. About 1/3 of the states
have this.
b. Modified CF-P barred from recovering if level of P’s fault rises to or above a
certain level, usually 50%. 2/3 of the states have this. Trend is in this direction.
c. Damages determined based on percentage fault. If P 40% at fault, P can
recover 60% of damages awarded. Hunt
i. This apportionment is highly subjective
d. Burden on D arguing that there is CF to show that P’s negligence was a but
for cause of P’s injury. Martin v. Hezog (P would have been injured even if P had
not been negligent. Thus, CF does not apply).
3. Assumption of Risk-Did P KNOWINGLY and VOLUNTARILY take on the risk
presented by D’s carelessness. Complete defense, i.e., if it applies D wins
a. Express AOR-Signed Waivers the most common form. Usually only deemed
enforceable for recreational activities and even then not all the time.
i. Validity of Waivers. Tunkl test.
1. Is the business of a type thought suitable for regulation?
2. Is the service of great importance to the community?
3. Does the party hold itself as willing to perform service for all?
4. Did the party have a "decisive advantage" in bargaining?
5. Did the party provide optional reasonable insurance coverage?
6. As a result of the transaction, was the person or property of the
buyer placed under control of the seller?
ii. Skiing central to Vermont, so state has interest in ensuring
safety. Waiver held unenforceable. Dalury. Industry that is central to the
State cannot opt out of tort law through contract.
iii. Skydiving not central or important to state. Waiver
enforceable. Jones v.Dressel
 b. Implied AOR-No contract/express waiver. P’s conduct suggests a willing
and voluntary acceptance of the risks associated with D’s carelessness. Applies
almost exclusively to recreational activities.
i. For implied AOR to apply, P must have subjective knowledge of the
risks created by D’s carelessness. Not an objective standard.
ii. Many states have held that comparative fault completely
eliminates IAOR.
iii. Some states have an intermediate position such that
comparative fault eliminates assumption of risk IF THE PLAINTIFF
ACTED UNREASONABLY in assuming the risk. However, if the
plaintiff acted reasonably in assuming the risk, implied assumption of risk
will be a complete bar to recovery. (Smollett). Thus, IAOR should apply
when P assumed risk but did not act carelessly.
iv. IAOR-P must have assumed the risks created by D’s
breach.
v. Some courts have adopted Primary secondary AOR
1. Primary Assumption of Risk-no duty owed to P regardless of
P’s subjective knowledge of risk. Applies to inherently dangerous
activities (recreational sports) and is accepted in only a few
jurisdictions. Knight
2. Secondary AOR-affirmative defense cases like Smollett
4. Immunities
a. Intrafamilial immunity-can’t sue dad because he’s dad. almost completely
gone.
b. Charitable Immunity-no respondeat superior for charitable hospitals. Can sue
the doc but not the hospital. Only remains in form of things like damage caps.
c. Sovereign Immunity-historically no respondeat superior for govt. Enactment
of FTCA now allows respondeat superior but with
1. no jury
2. no punitive damages, ever
3. discretionary function exception-If govt. employee careless in
performing discretionary function, SI still applies. Govt. not liable.
a. Function must include a judgment or choice, and
b. the judgment must be the kind that the exception was
designed to shield, e.g., policy considerations (don’t want
judiciary to second guess governmental policy decisions.
Riley –where to put mailboxes is a policy choice?
5. No Duty Rules for Local Govt. and Private Entities
a. Obligation owed, but no liability because of whom is being sued. Prima facie
case satisfied but still no liability.
b. "When they invoke the public duty rule, courts deny liability on the ground
that, although government owes certain duties to the public at large, it does not
owe those duties to any individual member of the public. Thus, no individual
has 'standing' to sue for damages caused by the breach of such a duty."
c. not court’s place to second guess policy decisions of executive or legislative
branch. Riss (Cops not liable in deciding to how to allocate resources which
 results in someone being hurt) (dissent-we should require showing from govt. that
prove it decided how to allocate finite resources).
d. By saying it is a no duty issue rather than affirmative defense, the court
keeps the burden on the P. If it was an AD, the D would be required to
provide support for the policy decision it made.
e. Too Much Liability-line has to be drawn somewhere. Applies to private
entities that provide what can be “deemed public service,” e.g., utility companies.
i. to hold entity liable for all injuries it caused would result in higher prices
which hurts the public at large. Strauss (drew the line that P would have
to be injured, as a result of power loss, in the area over which P has a
contract with Power Co. Because P tenant injured in common area, where
LL is in contractual privity with power co, no duty=no liability).
11/10 Property Torts
I. Trespass of land or chattel.
1. Elements
a. D’s intervening act must be intentionally undertaken (D need not know that
the land is someone else’s), and
b. D’s act must result in contact with P’s land. Burns Philp. Contact can be
minimal. It need not be harmful. Contact can be below, on, or above the prop.
Only legal possessor or members of her household can bring trespass suit.
2. Remedy
a. P can undertake reasonable self-help to remove trespassing item. But self
help is undertaken at P’s own risk. Court may find that P acted unrsbly.
b. P can recover for injuries parasitic on the invasion. Kopka rule
3. What if trespass done out of necessity?
a. Incomplete Privilege of Necessity-trespasser gets the privilege of staying, but
he has to pay for any damage the trespass causes. Vincent
b. GOLDBERG-IPN is garbage. If you intend to touch land, you touch it, and it
turns out to belong to someone else you have committed trespass. If the trespass
caused damage you are liable.
i. BUT maybe IPN is important when the property owner tries to refuse
access to trespasser who needs to trespass to be safe. Ploof (unhook)
4. Defense of Consent-May be either explicit or implicit
a. Scope of Consent-Entrant becomes a trespasser by moving beyond
possessor’s invitation. Scope may be limited geographically, temporally, or by
purpose. Copeland
b. Consent Must be given knowingly and voluntarily. Invalid if acquired by
fraud
c. Reasonable mistake about who owns the property is generally NOT a
defense. (Strict liability, baby!)
5. Media Trespass
a. As courts have become reluctant to find liability in invasion of privacy cases
due to first amendment concerns, plaintiffs have sought relief in trespass. Courts
are split on these claims, but the only damages they may receive are for the
trespass, not the dissemination of the information.
1. Nuisance-no physical invasion req.
a. D caused 1.unrsble and 2.continuous interference with P’s use and
enjoyment of real prop
b. Lends itself to INJUNCTIVE relief. Problem is ongoing.
i. Example-Sturges-here no one is to blame; both prop owners are using
prop rsbly. Court must decide which use should be allowed. Confectioner’s
activity does not fit in with the surrounding area. Doc wins. Injunction banning
confectioner’s use. Doc $150 profits, Confectioner $100=Doc wins
ii. Coase Theorem very applicable here-no wrongdoer-Steps of Coasean
analysis
1. Which use of the land is more profitable? Goal is to make the pie
as big as possible.
2. BUT, it doesn’t matter who get assigned the property right.
Property will be put to the highest value use regardless.
a. Even if Confectioner wins, Doc will pay him 150>x>100 to use
property for doctoring.
b. BUT, this only works if transaction costs are low/0, i.e., rational
parties, free info.
3. SO, Judge should focus on what decision will allow the lowest cost
bargaining to go on. Try to minimize transaction costs.
a. Trying to do this is more likely to lead to highest use that trying to
decipher what the “best” use is.
iii. Coase and Calabresi like Boomer-injunction granted but it will be lifted once
Cement Co. pays homeowners that amount their props are reduced because of
Cement Co.’s nuisance.
iv. When deciding on whether to grant injunction court must compare the
benefits to the P of granting the injunction to the hardship on D.
1. Look at whether the current use is making private Ps bear the cost
of the public benefit of the current use. Penland
2. Ultrahazardous Activities
a. Traditional Ultrahazardous activities-Strict Liability
i. Dam/Reservoir Building
1. Rylands-reservoir creation was a non-natural use because it was
out of place.
ii. Wild animals
1. Pingaro-state statute created strict liability for dog owners
b. Modern View-Ultrahazardous or abnormally dangerous (no longer care if
it is natural or not)
i. R2d §520 tries to define abnormally dangerous based on 6 factors. BUT
none of the factors are necessary or sufficient.
1. High degree of risk to person or property of others
2. Likelihood that harm resulting will be great
3. Inability to eliminate the risk by exercise of reasonable care;
4. Perhaps this tracks the "unnatural" part of Rylands flood decision.
a. Extent to which the activity is not a matter of common usage;
5. Inappropriateness of activity to location;
 6. Extent to which value to community is outweighed by
dangerousness.
ii. Klein-applying the above finds putting on a fireworks show is
Ultrahazardous activity.
1. adds factors-is this the sort of thing people do often
iii. Only bystanders can recover. Participants can recover under Negligence

c. This doctrine really only applies to explosions, reservoir keeping, and

wild animals. These three things are about containing things that are desperate to get
out and cause harm. Persons undertaking these activities are strictly liable if harm is
caused.
3. Products Liability-new idea, 1963
a. Escola v. Coca Cola
i. Majority resolves case using res ipsa loquitur, but majority is bending
the doctrine to make it apply here. The bottles were not really in the exclusive
control of Coke.
ii. Judge Traynor in concurrence says it is time to rethink how we approach
products liability cases.
1. Elements of Traynor’s products liability COA:
1. Injury
2. Manufacturer (MFR) sells product
3. Product has a defect
4. MFR knows product won’t be inspected by consumers
5. defect causes injury
2. Traynor cites MacPherson as support, but MacPherson was a
negligence case not a PL case.
a. He offers the following reasons why this change for products cases is
desirable:
i. Plaintiff’s injured by products have poor access to
evidence of MFR fault
ii. MFR in best position to prevent product related injuries
iii. Exposing MFR to strict liability creates incentive to make
safe products
iv. Loss spreading (MFR can pass cost incurred from liability
onto consumers)
v. Traynor trying to show why product injury cases should
be treated differently from other tort cases. Similar to ultrahazardous
activities.
b. Greenman v. Yuba, 19 years after Escola. Traynor writes for the majority.
i. Court accepts Traynor’s concurrence from Escola.
ii. Court actually expands Escola
1. Escola was a manufacturing defect. Only a few bottles explode.
The one that did was a lemon. It was not up to manufacturer’s standards
a. Greenman is more aggressive because it dealt with a design defect.
Shopsmith tool deficiently designed. All shopsmiths have this defect.
 b. Shortly after Greenman decided it was incorporated into the 2nd
restatement as §402(A). Within 10 yrs this approach to products liability
was accepted by essentially every state.
4. Products Liability
a. Note: THERE IS NO UNIFORM LIST OF "ELEMENTS" OF A
PRODUCT LIABILITY CASE
b. Prima Facie Case
i. Actor A is subject to liability to person P in products liability if:
1. P has suffered an injury
a. Products liability is much more likely to give compensation for
physical harm
b. At least one court, CA, (Shepard) has allowed products liability in
a bystander NIED case (people watched family member fall to death
because of defective car door); pure economic loss subject to general NO
DUTY except in negligently prepared will circumstances.
c. Can you recover if the defect destroys the product itself?
i. The general rule is "NO." All you get is whatever your
contract gives you.
1. You can recover if it damages another piece of property.
2. A sold a product
a. "Services, even when provided commercially, are not products."
b. LOTS of things are products for products liability.
i. Human body parts are usually not considered products.
ii. Live animals sold as pets are livestock are frequently not
considered products.
1. One. Depends on context. Dog sold with disease was held a
product once.
iii. Textual material is not generally a product, while maps
sometimes are.
iv. Intangibles like electricity and x-rays are borderline, but
usually not counted as products.
v. Used products are not normally "subject to strict products
liability, although detailed doctrine now exists that qualifies this rule."
vi. Some things called "products" by courts are still
specifically exempted by them from products liability (like
prescription drugs.)
3. A is a commercial seller of such products
a. Who is a seller?
i. Retailers, distributors, and manufacturers are all liable
as "sellers."
1. You have to be "in the business" of selling the product in
question.
a. A seller is anyone who "take[s] steps to place the
product on the market, or figured in the distributional chain
through which the product is placed on the market."
 b. People who use products in their services aren't
liable as sellers (the surgeon who put the hip in isn't liable).
2. Two. Component Parts
a. If the manufacturer can show its product is not
defective the part that was defective on the product, it may
avoid liability.
b. HOWEVER, if the supplier is intimately aware with
the manufacturing processes and such of the larger part maker,
liability may be assigned.
4. At the time it was sold by A, the product was in a defective
condition; and

5. The defect functioned as an actual and proximate cause of P's

injury. Grower
a. The Three Kinds of Defect:
i. Manufacturing Defect: The product was made in a
way which was out of conformity with the company's own design
specifications for that product.
1. R3D-A kind of res ipsa loquitur is allowed here.
Circumstantial evidence can establish manufacturing defect if the
accident were of the kind such that:
a. it normally only happens because of manufacturing
defect, it can be assumed
b. Incident not solely the result of causes other than
product defect
ii. Design Defect: An entire product line was defective in its
design
1. Two Tests:
a. The Consumer Expectations Test (roots in contract/
warranty) Usually favors P
i. "A product is defective in design if aspects of its
design render it more dangerous than an ordinary consumer
would expect it to be."
b. The Risk-Utility Test (roots in negligence)
i. "A product is defectively designed if the risks of its
design outweigh its utility."
ii. Seven Wade/Keeton Factors: None are necessary or
sufficient
One. Usefulness and desirability of the product
Two. Likelihood of injury and seriousness of probable
injury
Three. Availability of a safe substitute product
Four. Manufacturer's ability to eliminate risk while
maintaining effectiveness and reasonable cost
Five. User's ability to avoid danger through care
 Six. User's anticipated awareness of dangers inherent in
product and their avoidability
Seven. Feasibility of the manufacturer spreading loss
through pricing and insurance
c. Is the R/U test different from negligence test?
i. R/U is a hindsight test
ii. RU-Burden of Proof on D, Neg.-burden on P
d. NOTE: SOME COURTS ALLOW THE
PLAINTIFF TO RECOVER IF THEY CAN SATISFY
EITHER OF THE TESTS
2. Product Misuse
a. Majority view-sellers obligated to make design
and warning choices with all foreseeable uses of the
product in mind.
b. Even if P’s misuse is foreseeable, it may still form
the basis for plaintiff conduct defenses
i. Comparative fault, IAOR
ii. Suter-refused to apply comparative fault even as a
partial defense when employee in “industrial setting” is
injured while using in a foreseeable manner an evidently
dangerous product supplied by his employer. These
encounters presumed involuntary.
3. Regulatory Compliance
a. Some states have statutes that recognize complete/
partial defense to PL based on compliance with relevant state/
fed safety laws.
iii. Failure to Warn Defect: The company did not include
adequate safety warnings with the product, or the company
MISLABELED the product.
1. Line between FTW and Negligence is very fuzzy if not
nonexistent
2. Difference between Negligent FTW and strict FTW-neg
factors in if a rsbly prudent person would warn of the danger. In
strict FTW, MFR reasonableness irrelevant.
3. MFR has duty to warn of risks that were known or rsbly
scientifically knowable at the time of distribution that would
render the product unsafe. Anderson
4. For there to be a difference #3, must be warnings that a
reasonable MFR would not give and yet the omission of such
warnings would render the product unsafe.
5. No duty to warn of obvious dangers
6. Warning must be adequate to notify consumer of existence and
nature of hazard.
a. D must warn of the specific risk(s) Schwoerer
b. Prominence of warning must match the danger
 7. Proving ACTUAL CAUSE in FTW-P must prove warning
inadequate and that it caused his injuries.
a. Had the warning been given, would P not have been
injured?
i. Minority-Heeding presumption-had warning been
given it would have been heeded. D can overcome
presumption with evidence. Burden shift
8. Prescription drugs, FTW, and AC
a. Learned Intermediary Doctrine-sellers of
prescription drugs have duty to warn only prescribing Docs,
not the consumer. Motus (echoes MacPherson-importance of
an intermediary inspector)
i. This leaves P with burden of proving that the Doc
would not have prescribed the drug had Doc been warned.
PROBLEM-Docs are wined and dined by prescription drug
companies.
ii. P can sue Doc for negligent medical malpractice
iii. LID is under assault. Will probably be narrowed/
eliminated in near future

c. Prescription Drugs and Product Liability

i. Prescription drugs are different. They are highly regulated, are only given
out by a Doc (provides second layer of inspection), and have huge upfront
investments
ii. Standard for defectiveness
1. Some states refuse to use products liability in prescription drug
cases.
2. Some states say "Drugs are products, we don't need a special test."
3. R3D-If any rsble Doc, knowing the foreseeable risks/benefits,
would prescribe the drug for any class of patients, the drug is not defective.
Demanding standard
4. Nebraska uses the products liability test (consumer expectations
version) with defendant getting an affirmative defense that the drug's benefits
outweigh the risks. (Freeman) Court hates R3D
a. But in internet age all info is at the consumer’s fingertips. Does this
change things?
iii. Market Share Liability-really only applies to prescription drugs
1. In Sindell, the court ruled that DES manufacturers were liable in
proportion to their market share of the manufacture of the drug. (This seems
to fit in both the "causation" and the "apportionment" sections of tort liability,
although Sindell talks about it more as a causation issue.)
2. Summers doesn’t apply because all possible tortfeasors aren’t
parties here
3. Reqs.
a. Ds must make up a substantial portion of the market
b. Product manufactured by all Ds must be indistinguishable.
 4. If a D can show that it did not mfr the drug that injured the P, D
not liable
a. MSL-Shifts burden to D to disprove causation-like Summers
5. MSL has not caught on. Very rarely applied
iv. Reasons unwilling to extend / unique factors for market share liability to
attach.
1. DES had interesting evidentiary problems such that the plaintiffs
COULD NOT prove who caused their harm despite their diligence.
2. The plaintiffs could bring before the court those defendants
responsible for ALMOST ALL sales of the product.
3. The product in question was entirely generic and identical in all
important aspects.
4. There was at least some reliable data on market share.
5. Goldberg: The injury was surely caused by tortious conduct, and
the defendants were surely careless, whereas in other situations these might be
questioned.
5. Damages and Apportionment-P entitled to be made whole
a. Compensatory Damages
i. Economic-things like medical bills, lost wages, lost future earnings
(Kenton)
ii. Noneconomic-pain and suffering includes disfigurement

iii. The Eggshell Skull Rule: "The tortfeasor takes his victim as he finds them."
If the plaintiff has a "hidden vulnerability," the tortfeasor must pay for damages
resulting from his act plus this hidden vulnerability.
1. Intentional Torts (Vosburg v. Putney)
2. Negligence and Friends (Smith v. Leech Brain & Co. Ltd.) lip
cancer
3. Some courts mitigate the effect of the eggshell skull rule by
considering whether the hidden vulnerability would have resulted in the injury
anyway during damage phase. (Smith v. Leech Brain & Co. Ltd.) So when
valuing things like future expected income, they'll lower the life expectancy
when calculating damages.
iv. Other hidden sources of great damage are also in theory compensable in tort.
What's the lesson: Run over the poor guy, not the rich guy, and don't have the bad
luck to hit the guy with the Van Gogh in his trunk.
v. Additur--the judge finds that the jury's awarded damages are too low and
gives the defendant the option of accepting a higher amount or having a new trial.
(may be unconstitutional?)
vi. Remittitur--the judge finds that the jury's awarded damages are too high and
gives the plaintiff the choice of accepting a lower amount or going to a new trial.
vii. The Collateral Source Rule: Juries are NOT allowed to hear evidence that
someone other than the plaintiff (like an insurance company) paid the plaintiff's
medical bills.
1. As many as half the states have greatly modified or abolished this
rule in medical malpractice.
 viii. Pain and Suffering
1. These damages have historically always been compensable.
2. Modern tort reformers have sought things like caps on these
damages or heightened appellate review of them, especially in medical
malpractice cases.
ix. Some states have capped noneconomic compensatory damages, at least for
some torts.
b. Punitive Damages
i. Stand independent of compensatory damages
ii. Some states require at least compensatory damages to recover punitive,
while others will allow nominal damages alone to be accompanied by punitive.
iii. PUNITIVE DAMAGES ARE ALWAYS DISCRETIONARY.
iv. Threshold Requirement
1. Require a showing that plaintiff has been a victim of "aggravated"
forms of tortious conduct that was "malice, insult, oppression, [or] wanton or
willful violence."
2. Not available in negligence actions UNLESS it's "willful or
wanton" negligence. Since there's no tort of "recklessness," this fits into the
weird middle ground.
v. PD and Vicarious liability
1. MGT liable for PD if MGT endorsed/ratified the tortfeasor
employee’s behavior.
vi. Things like size of injury and what was damaged shouldn’t matter but they
seem to National By-Products
vii. Posner’s reasons in Mathias for PD-Go completely against precedent. Not
tied to any threshold
1. PD separate way to punish crimes that will never be prosecuted.
(spitting in the face) Delegation of prosecutorial function
2. Certain kinds of torts cause small amount of harm to lots of Ps.
PD should create reward for the P that brings the suit. Absent PD it would not
be economical, so no suit would be filed
3. Jerk Ds who brings tons of frivolous motions to stonewall P.
Creates deterrent for this kind of D behavior, same with 2.
viii. Some states require proof of malice or wantonness "by clear-
and-convincing evidence." More onerous than preponderance of the evidence
but less than beyond reasonable doubt standard.
ix. Punitive damages also face more scrutiny on appellate review. SCOTUS
decision-PD can be so large that it is a taking of D’s prop without just
compensation.
6. Joint and Several Liability
a. Joint and Several Liability allows the plaintiff to recover the full amount
from either party in two cases: indivisible harms and "joint tortfeasors"
i. Joint Tortfeasors
a. A and B agree to beat up C. They are jointly and severally liable for
all injuries
ii. Indivisible Harms
 1. When two tortfeasors independently cause an "indivisible" harm,
joint and several liability attaches. (Imagine the "getting hit by two cars at the
same time" example). (Ravo)
iii. Relation to Comparative Fault
1. It's a bit odd because Comparative Fault looks like
it "divides" "indivisible" injuries.
2. Jury divides blame not injury. Injury still indivisible
iv. Contribution-D who paid more than his fair share sues other D to recoup the
amount he overpaid.
1. Joint and Several Liability thus shifts the burden of insolvency to
defendants.
v. TORT REFORM-People want to get rid of JSL
1. The question is whom do we want to bear the unfairness of not
being able to collect.
a. Wrong doing D or
b. Injured P
c. Maybe we could split the difference-if D2 is insolvent and responsible
for 80%, we could put 40% on D1 and 40% on P.
d. Some states have eliminated JSL for indivisible injuries or have
required D to be at fault enough, i.e., 60%, before D can be held jointly
and severally liable.