Intentional TortsI. Battery - R2T § 13, 18: Liable for battery if (a) there is intent to cause a harmful or offensive contact, or an imminent apprehension of such contact, and (b) a harmful [or offensive] contact directly or indirectly results.

A . Elements a.Act by Defendantb.Intentc.Harmful or Offensive touchingd.Causatione.Lack of Consent

B. Requiring Faulta.Van Camp v. McAfoos -Child riding tricycle hits pedestrian. Not liable – No fault.

C. Elements of Batterya.Liable for battery when: (1) D acts intending to cause a harmful or offensive contact, and (2) when a harmful contact results. The least touching of another in anger is battery.1. Snyder v. Turk – Dr pulls nurse’s face towards operation opening in anger.b.D also liable not relatively trivial contacts which are merely offensive and insulting (protecting personal integrity). Contact which is offensive to a reasonable sense of personal dignity is offensive contact.1. Cohen v. Smith – male nurse saw and touched P’s naked body, which was against her religious beliefs (P had informed D). Liable – offensive touching.

D. Intent - R3T §1: A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result.

a. Substantial certainty of result can provide required intent1. Garrat v. Dailey – Child pulls chair out from under p; P falls. Even though D doesn’t desire to harm P, if D knows there is a substantial certainty P will be harmed, then intent element of battery is satisfied.

b. In a “dual intent” jurisdiction, the fact of insanity may be considered when determining whether an insane defendant appreciated the harmfulness/offensiveness of his/her conduct.

1. White v. Muniz – Dementia patient (w/ loss of memory, impulse control & judgment) hits caregiver. No intent b/c D couldn’t appreciate the harm of her conduct, due to her dementia.

c.Insanity - One who has deficient mental capacity is not immune from tortliability solely for that reason. The ordinary rules of battery apply.

1. Polmatier v. Russ – D insane at time he murdered P. Still liable, b/c he intended to harm him, although the reasoning for it was irrational.

d. Child Liability – Most states children still liable for torts. Some states have an age cut-off where children will be held liable (b/c presumed small children incapable of

the required intent). Standard of care (to find negligence) of minor is that ordinarily used by similar children of same age and intelligence.

--(See Garrat v. Dailey)

1. Parental Liability for the torts of their minor children – Statutes imposing liability for their children’s torts exists in virtually every state, but they are usually limited in two ways:

a. The child’s tort must have been committed willfully or wantonly.b. Damages that may be obtained are limited.

e.Transferred intent – (1) tortfeasers intends tort on A, but commits tort on B; (2) tortfeasors intends a tort, but accomplishes another one.

1. Stochak v. East Baton Rouge Parish School—teacher is struck in the back of the head by a punch thrown by one of the two students in the fight he is attempting to break up in the school. In seeking benefits, the court determines he is victim of transferred intent (1).

2. Extended Liability – D commits intentional tort; liable for all damages resulting, not merely those intended or foreseeable. ( In most transferred intent cases, there is an incident where intends to commit battery to one person and accidentally causes a battery to another as well.)

II. Assault – R2T §21 An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.

A. Elements of Assaulta.Act by Defendantb.Intentc.Apprehension of immediate touchingd.Causatione.Lack of Consent

B. No contact required for assaulta.Cullison v. Medley- Ds intended to frighten P, by surrounding him and threatening him with bodily harm with a revolver. P suffers chest pains & psychological trauma.

C. Some apprehension of the imminent contact is required for assaulta.Koffman v. Garnett – D (football coach) tackled P, while explaining a tackling technique. Because the student “had no warning of an imminent forceful tackle,” the pleadings were insufficient to state a claim for assault. (NOTES p.46)

1. R2T §29(1) The apprehension created must be one of imminent contact, as distinguished from any contact in the future. “Imminent” does not mean immediate, in the sense of instantaneous contact . . . . It means rather that there will be no significant delay.

III. False Imprisonment-R2T §35 Liability for false imprisonment if (a) D acts intending to confine within boundaries fixed by D, and (b) D’s act directly or indirectly results in such a confinement, and (c) P is conscious of the confinement or is harmed by it.

A. Elements for Prima Facie Case:

a.Act by defendantb.Intentc.Confinement without lawful privilege for any appreciable timed.Causatione.Lack of consent

B. Physical confinement is not required; the confinement element of false imprisonment can be shown by other factual circumstances.

1.McCann v. Wal-mart Stores, Inc. – mere threats (can be implicit or explicit) of physical force can suffice; confinement can also be based on a false assertion of legal authority to confine.

IV . Torts to PropertyA. Trespass to Land – R2T §158: A trespasser is liable, even if no harm is caused, if he intentionally (a) enters another’s land or causes a thing or person to, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

B. Trespass to Chattels – R2T §217: (Chattels are personal property). Trespass to chattels is the intentional dispossession, use or intermeddling of another’s chattel. With trespass to chattels, you must show actual damages.

1. School of Visual Arts v. Kuprewicz—Kuprewicz was a former employee of the school who allegedly caused a large amount of pornographic email and unsolicited job applications to be sent to which affected their computer systems. Because the elements were met, a cause of action for trespass to chattels was established.

C. Conversion of Chattels – R2T §222A: Conversion is when property is interfered with the owner’s control of it in a “complete or very substantial” way, and owner can get the value (but not the thing back). Factors in determining the extent of interference and if actor must pay back owner: (a) extent & duration of actor’s control over chattel, (b) actor’s intent to take away owner’s control, (c) actor’s good faith, (d) harm done to chattel, (e) inconvenience & expense caused to the owner.

V . Affirmative DefensesA. Protecting Against the Apparent Misconduct of the Plaintiff

1.Self-Defense – R2T §70: There must be an immediate threat of harm to trigger the self-defense privilege. You must have a reasonable belief that force is necessary, but you can be mistaken. You can use reasonable force in amount and duration based on the circumstances to protect your person.

a. The force you use must be proportional in some sense.b. Words are insufficient provocation to trigger the privilege of self-defense because language doesn’t constitute assault.c. You can only use deadly force to counter deadly force.d. In own home, no obligation to retreat from deadly force. (but outside home, may be obligation to retreat from deadly force, but depends).e. Non-deadly force: no obligation to retreat; ok to respond w/non-deadly force

2. Arrest and Detention- R2T §120A contains a privilege that permits

detention “on the premises” for reasonable investigation. The common law also recognizes a privilege to arrest or detain, but is much narrower.

a. Peters v. Menard, Inc.—Peters was seen by a security guard taking a drill set, placing it in his cart, and placing the box in a parked truck outside without paying. After questioning him, security guards asked Peters to come in the store to talk to a manager and he ran chased off the property and ended up drowning in adjacent river. is not held liable because their actions were less unreasonable than those of .

3. Defense and Repossession of Property-- Reasonable force can be used against a trespasser however, calculated force that may cause serious injury or death are unreasonable.

a. Katko v. Briney—After a series of break-ins, Briney installed a spring- gun in one of the rooms of her abandoned home that was aimed for the legs of an intruder. entered the house and was shot by the spring gun—there were no warning signs and the applicable law was to warehouses prohibited to willfully injure trespassers by means of force that will take life or seriously injure. Judgment for

b. Brown v. Martinez – P trespassed on D’s land; D shot P. Not shown that D feared for his safety. No privilege to use gun.

4. Discipline-- Parents have the privilege to discipline, and to use force and confinement to do so. R2T §147 says that parents may use reasonable force as they reasonably believe necessary.

B. Consent-- R2T §892: Willingness for conduct to occur. May be manifested by action or inaction and need not be communicated to the actor. If words or conduct are reasonably understood as intending consent, they are effective as consent. (Review p.67-69 for types of consent)

1. Exceeding the Scope of Conditional Consent—Many cases of “medical battery” involve allegations that the doctor exceeded the scope of the patient’s consent

a. Kennedy v. Parrott, “The law should encourage self-reliant surgeons to whom patients may safely entrust their bodies, and not men who may be tempted to shirk from duty for fear of a lawsuit.”

C. Privileges not based on Plaintiff’s Conduct 1. Arrests and Searches: Officers are privileged to enter land to execute a search or arrest warrant. But they are not privileged to invite the news media to cover their heroics. 2. Public Rights: A user of a public utility or common carrier has the “privilege” to enter appropriate portions of the premises; in other words, the utility cannot deny the right of the public generally to patronize it (R2T §191)

a. i.e—to enter land to reclaim one’s own goods 3. Necessity:

a. Public Necessity – R2T §196: One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.

1. Surocco v. Geary – Fire spreading, would have destroyed P’s house. Fire chief blows up P’s house to stop the fire from spreading. Reasonable for him to do so. Not liable.2. Wegner v. Milwaukee Mutual Ins. Co. – apprehension of a criminal; police caused damage to P’s house. There was a public necessity, but an innocent shouldn’t bear the costs. City to pay back the damages, but officers not personally liable.

b. Private Necessity- R2T §197: (1) Privileged to enter or remain on other’s land if it is or reasonably appears to be necessary to prevent serious harm to the actor, or his land, chattels. (2) Private necessity may privilege the use or destruction of private property but the user/destroyer must compensate (except if the threat of harm that forced the entry was caused by tortious conduct of the landowner).

1. Vincent v. Lake Erie Transportation Co.– Storm, ship would have been blown away. So ship was moored to dock, and b/c of storm, kept hitting the dock, causing damage to it. has privilege to use the dock (private necessity), but he must pay for the damage (b/c he got a benefit while was harmed).

Negligence – The Prima Facie CaseI. Elements of a negligence cause of action.

(1) DUTY - The defendant owed plaintiff a legal duty;(2) BREACH - The defendant, by behaving negligently, breached that duty;(3) HARM - The plaintiff suffered actual damage;(4) CAUSE IN FACT - The defendant’s negligence was an actual cause of this damage;(5) PROXIMATE CAUSE - The defendant’s negligence was a “proximate cause” of the damage.

Elements of Negligence to create the Prima Facie CaseI. Duty

A. Reasonable Person Standard - The standard of care requires conduct of a reasonable and prudent person under the same or similar circumstances.1.External circumstances

a. There is no “exceptional” standard of care in dangerous situations (the reasonable person standard applies), but the degree of care required does increase with danger and risk

1. Stewart v. Motts – gas explosion; higher degree of care necessary when dealing with dangerous substances like gasoline.

b. “Emergency Instruction”—

1. Bjorndal v. Weitman, “People who are suddenly placed in a position of peril through no negligence of their own, and who are compelled to act without opportunity for reflection, are not negligent if they make a choice as a reasonably careful person placed in such a position might make, even though they do not make the wisest choice.”

c. Physical Impairment Rule- A person laboring under a physical disability is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability.

1. Shepard v. Gardner Wholesale,Inc., suffers from cataracts which left her with bad vision; she tripped and fell on the sidewalk outside . This case flips the common standard and places the burden on the vendor/store to make repairs in order to prevent accidents.

d. Mental disability—a person with a mental disability is held to the same standard of care as a normal reasonable person.

1. Creasy v. Rusk– person w/ mental disability held to same standard of care as normal reasonable person. BUT, not liable to a caregiver (caregiver has duty to patient, not the other way around).2. Rationales for holding the mentally disabled liable under thereasonable person standard: (most often cited public policy reasons)

(a) Allocates loss btwn innocent parties to party who caused loss(b) Incentive to those responsible for people with mental disabilities to restrain them(c) Removes inducement of “faking” of insanity to avoid liability(d) Avoids admin problems involved in courts attempting to identify/assess significance of mental disabilities(e) Unjust enrichment of insane; they should pay for the damage they do if they are permitted to live in the world (not institutionalized)

e. Special Knowledge – someone who has special knowledge or skills is required to exercise the superior qualities reasonable under circumstances.

1. Hills v. Sparks – operating machinery; D knew of the risks to passenger, but didn’t warn, and passenger died.

f. Children--Child held to a “reasonable child” standard – that of a reasonably careful person of the same age, intelligence, and experience. Does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

1.. Robinson v. Lindsay – D (child) operating snowmobile, P (also child) gets injured. Use reasonable person, not child standard b/c dangerous activity normally conducted by adults, not children

B. Negligence per Se – Specification of Particular standards or duties1. Attempts by judges to define the duty owed (what a reasonable person would do when specific facts present) as a matter of law / The difficulties when judge’s announce a set standard of care

a. Marshall v. Southern Railway Co. – P driving, hit D’s construction. Court says as a matter of law, P must exercise reasonable care in keeping a lookout for obstructions while driving.

b. Chaffin v. Brame – P driving at night, hit D’s truck, b/c blinded by another car’s headlights. D negligent in leaving car in middle of the street. No contributory negligence by P (b/c he was driving safely), court says as a matter of law.

1. Limitation of a judge-made rule. When presented with diff factual circumstances, its application may not work

2. Negligence per se – defining duty by “statute”: Is the plaintiff in the class of persons the statute is designed to protect, and is the injury in a class that the statute is designed to protect? If you cannot establish negligence per se, you can use this as evidence to establish negligence (but easier to establish negligence per se).

a. Martin v. Herzog – D driving, hit P, who died. P negligent driving w/o lights. Statute that says vehicles must have lights. P’s violation of statute used as contributory negligence, but not as negligence itself.b. Impson v. Structural Metals Inc.- D’s truck tries to pass P w/in 100 ft ofintersection, and hits P. Statute prohibits this. D says he is excused, denied.

II. BreachA. Risk/Utility Formula: Assessing Reasonable Care by assessing risks and costs

1. Breach: Assessing reasonable carea. Brown v. Stiel Problem (and related hypos)1. If D (contractor) knows has to choose btwn building with steel (cheaper but kills or injures 3 ppl) and concrete (injures 1), is he committing an intentional tort if he uses steel & someone gets hurt?(a)Intentional tort – have to be certain ppl will be killed/injured, but this is a statistic, not certainty. Not intentional tort. Also, intent is to build cheaper, not to hurt anyone.(b)If concrete used, person injured – not liable for intentional tort b/c no safer way to build.(c)Wood safer than concrete, no liability to use concrete b/c using wood holds up progress (ppl will not build due to liability).(d)If specific work/method negligent, then liable.

2. Criteria for assessing what constitutes “unreasonable risk”a. R3T §3 – Negligent if actor doesn’t exercise reasonable care under circumstance. Factors: foreseeability of harm occurring, severity of harm, burden of precaution.

b. Indiana Consolidated Insurance Co. v. Mathew – Issue on whether D breached reasonable care standard. Court decides no.

(a)Not reasonable to expect D to start mower outside garage (weight/size of mower + that’s what garages are for)(b)D very careful, only filled 3/4, used funnel, & careful not to spill(c)Not reasonable to expect D to push mower out of garage (would have created danger to D). Exercised prudence in calling fire dept. Human life/safety more important than property.

1. Stinnett v. Buchele - P hired by D to paint his roof; P fell and says b/c of D’s failure to supply a safe working area. D didn’t breach duty.

(a)D is Dr, not a roofer (no knowledge), but P has. D

reasonable to assume P knows, and D complied with all of P’s requests. Also, it was an obvious danger, nothing hidden.

2. Bernier v. Boston Edison Co. – Car accident, driver lost control, hit a light pole (designed & maintained by D); Pole struck Ps (not inviting or expecting danger – pedestrians).

(a)Duty of care breached – very foreseeable (force sufficient to break poles was very slow, high rate of poles being struck), and alternative design available to reduce risk.

b. Learned Hand formula: Impose liability where: The burden of precaution is less than the probability of harm x the gravity of harm. If action would be very burdensome, not reasonably expected to take that precaution (social utility).

B<PL P = probability L = injury B = burden

Liability depends upon whether the burden is less than the injury multiplied by the probability If B<PL then there’s negligence or at least a breach of duty

1. United States v. Carroll Towing Co. – Accident and P suffers loss; barge employee could have avoided it. Absence of barge employee negligence b/c burden of precaution (paying employee) less than prob of harm (very probable) x gravity (a lot of damage).

2. Benefits of hand formula: (1) social efficiency, (2) fairness

3. Only works when property is involved (can’t determine value of life)

4. Alternatives: (1) when danger is foreseeable, must act to deter, (2) community expectation approach

c. Apportioning responsibility1. Comparative fault – each faulty party bears burden of losses. Each party liable only for % responsible.

2. Apportionment among defendants – multiple tortfeasers; they split damages based on % of fault.

3. Joint and several liability – Multiple tortfeasers; P can enforce against either. P can get judgment on either, but not for more than full amt of damages.

4. Contribution – if only 1 D pays full amt, not fair. So co-D would pay D his portion, called contribution.

5. Insolvent or immune tortfeasers – 1 D is immune to tort liability. Co-D incurs all expense of damages, and cannot get contribution.

6. Several liability and comparative fault – Determine % fault of each D, and D only liable for his share. P can only pursue each D for the % fault.

B. Proving Negligence: Inference & Custom – P must prove negligence more probable than not

1.Proving Conducta. Santiago v. First Student, Inc. – P unable to show evidence that D was negligent. Cannot pursue claim.

2.Evaluating Conducta. Thoma v Cracker Barrel Old Country Store Inc. - P slipped on liquid in store. P could not show through evidence than D was probably negligent by conduct. Mere presence of liquid insufficient. To recover, P must show D created or had knowledge of the dangerous condition.

b. Wal-mart Stores, Inc. v Wright – Wal-mart negligent based on its own manual (higher standard), but not by reasonable person standard. Court says only reasonable care must be taken (doesn’t want to discourage businesses from employing a higher degree of care b/c they would be liable to stick to it).

c. The T.J. Hooper – Court says although radios weren’t the industry custom, it would have prevented the accident, and so should have been used b/c of its availability and not burdensome for D to use (use common sense). Courts want advanced technology to be used (progress).

C. Res Ipsa Loquitur - R2T §328D: “It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff or third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

1.Byrne v Boadle – Barrel rolled out of warehouse, hitting P. Barrels don’t just roll out w/o negligence, and warehouse under exclusive control of D. Res ipsa.

2.Application of res ipsa means P can go to trial, and jury will be instructed that if elements of res ipsa are satisfied, then they can infer negligence. Doesn’t mean P wins if he gets res ipsa.

3. When does Res Ipsa apply? - Probably negligence and probably thedefendant

a. Probably defendant: Harm-causing event must be tied to the defendantb. Probably negligence: Event must be one that generally does not occur absent negligence

1. Warren v Jeffries - Car runs over child (who dies); no res ipsa b/c cannot be determined if negligence caused accident,

or if there was something wrong w/ car (not examined after accident).

c. Attributing the fault to defendant rather than others.1. Giles v. City of New Haven - P, elevator attendant keeps pressing buttons; goes for a wild ride. Tries res ipsa, but cannot prove it was probably D (who maintains elevator). Could have been P’s negligence.

III. Harm and Causation in FactA. Actual Harm—The plaintiff must suffer cognizable harm.

1. Right v. Breen – The court says that there can only be a negligence action if there are damages.

B. Cause in Fact—The plaintiff must prove, not only that she suffered legally recognizable harm

1. The But-For Test of Causation (harm wouldn’t have happened but for D’s negligence)

a. R3T §28 - Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.

b. Hale v. Ostrow – P is suing for a breach of duty as to D preening his bushes as a reasonable person would have. Without the breach of duty, there would not have been the detour on which P tripped and fell on the sidewalk.

c. Salinetro v. Nystrom – P pregnant, but doesn’t know. Gets x-rays, Dr. doesn’t ask if she’s pregnant; and fetus dies. No causation b/c injury would have occurred even if Dr asked (b/c she didn’t know, she would have said no).

2. Problems with and Alternatives to the But-For Testsa. Two persons causing separate or divisible injuries

Each tortfeasor will be liable for the harms that tortfeasor caused and no more.

b. Two persons causing a single indivisible indury. In some injuries, however, both tortfeasors’ conduct contributes to a single issue. c. Some defendants not a but-for cause of all injury.

Can one work out (a) who is causally responsible from the broken arm and its delayed healing? (b) how joint and several liability would apply or not to the claims arising from the broken arm?

d. Liability without but-for consideration. Under some circumstances, the is liable for the harm to the even though the defendant’s negligent or illegal conduct was not a but-for cause of harm. This is a case with respondeat superior liability.

e. Landers v. East TX Salt Wtr Disposal Co.-- 2 D’s responsible, but cannot tell % fault of each (so cannot apply but-for test). So, all of the wrongdoers will be held jointly and severally liable for entire

damages.

3. Substantial factor test - R3T §27: If multiple acts exist, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.

i. Anderson v Minneapolis, St. Paul & Sault Ste. Marie Railway – Fire started by D, but combines with another fire of unknown origin. D liable as if he alone at fault.

4. Proof: What Was Caused? – a. Present value approach to apportionment: The damages for

negligence are decreased in contributory negligence when negligence of D is great and other causals are present.

1. Dillon v. Twin State Gas & Electric – Boy trespasses on D’s bridge, but D knows this happens a lot. Boy loses balance, grabs wire and is electrocuted, dies. If wire were insulated, boy would have prob survived. D’s should have known the risk, and insulated it.

b. Alternative causation1. Summers v Tice – 3 ppl Hunting quail. 2 Ds shoot and P gets hit. We don’t know who actually shot P, but since they were both negligent, both liable. D’s burden to offer proof of apportionment (b/c D has more knowledge).

c. Lost opportunity doctrine/value of the chance - hard to quantify, but possible through expert testimony. At present only for medical malpractice

1. Lord v. Lovett – P injured in accident. D (dr) negligent, and P lost the opportunity for a better recovery2. Approaches to lost opportunity:

a. Preponderance test – P must prove that D deprived P of at least 51% of a more favorable outcome than p rec’d. If P can’t reach 51%, no recovery, if P can, than P can recover for full extent of injury (can be unfair).b. Relaxed-Causation test – P must prove D’s negligence more likely than not increased harm to P or destroyed a substantial possibility of achieving a more favorable outcome. Damages rec’d in full (NY has similar test).c. Quantified value-of-chance—D’s duty of care is broad enough not merely to protect P against injury or loss of life, but also to protect P against loss of substantial chances. If the chance of survival was 40% and D’s negligence more likely than not eliminated that chance, the D is liable for the loss he caused.

IV. Proximate Cause A. Proximate Cause R3T §29 - An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.

1. Medcalf v. Washington Heights Condominium Ass’n, Inc. – P wants to enter building, buzzer doesn’t work; while waiting for door to open, p gets

attacked. No proximate cause– no foreseeability (buzzer is to protect residents of outside intruders).

a. Scope of risk – how to determine what risk is that makes D negligent?

i. Likelihood of harm x burden of precautionii.. Foreseeabilityiii. Also, depends on facts of each case. Use substantive analysis.

2. Palsgraf v. Long Island Railroad Co. – D tries to help man into RR (negligently), & in process man drops package, which unknowingly contains fireworks, which explode, injuring P. No proximate cause – not foreseeable that there would be an explosion, and it was the explosion, not the D’s negligence that caused P’s harm (use foreseeability test)

a. Dissent (Andrews): Uses Direct Consequence test - says a person who is negligent to any class of persons is negligent to everyone who is in fact injured. Not a matter of foreseeability alone.

B. Scope of Risk Principle - D liable for harms only within the scope of risk he negligently created. Not liable for harms outside the risks he negligently created.

1. A harm or risk is not within the scope of the risks negligently created by the defendant in any of the following circumstances:

a. Harm/risk of this type not foreseeable by reasonable personb. If there is foreseeability, but reasonable person would not have

taken greater precautions to avoid it than D did (no breach)c. Harm/risk to class of persons P falls in not foreseeable to

reasonable personC. The Rescue Doctrine R3T §32: If D’s tortious conduct creates a situation where

rescue is necessary, D is also liable for harm caused to the rescuer.D. Manner of the Harm Rule – Harm/risk of a kind that is foreseeable is within the

scope of risk even if neither the exact harm or exact manner of occurrence could have been foreseeable.

a. Hughes v. Lord Advocate – Workers leave manhole open, boys don’t fall in but drop a lantern in which causes fire, and boys burned. It was foreseeable that leaving the manhole open & lantern unattended would cause injury, even though the manner it happened was unforeseeable.

b. Doughty v. Turner Manufacturing Co., Ltd. – Worker knocked cover into molten liquid, but no splash. A few minutes later liquid erupted. Even though eruption (exact harm) was an unforeseeable, risk of harm by dropping it in was foreseeable.

E. Extent of Harm Rulea. Thin Skull / Eggshell Plaintiff - R3T Åò31: When D’s tortious conduct

causes harm to P, that b/c P is more sensitive causes a greater or different type of harm that might be reasonably expected, D is liable for the full extent of the harm.

b. Fire Cases – tortfeasers responsible for full extent of damage caused by fire, even if not foreseeable.

F. Intervening Person or Force - R2T Åò34: When there’s an intervening act or force, D liable only for harms that result from within the scope of foreseeable risk.

a. Intervening intentional/criminal acts – traditionally, would be

superseding cause, but not so much anymore. Now ask if intervening act was foreseeable.

i. Derdiarian v. Felix Contracting Corp.- no barrier for construction site (negligence). Car drove into site (intervening act); caused injury. Foreseeable for this type of accident to happen if no barriers, so there is proximate cause.

ii. Ventricelli v. Kinney System Rent a Car, Inc. – D sold car to P w/ defective trunk. P trying to close trunk when a parked car jumped up and hit him. Majority says foreseeable for P’s inconvenience in closing the trunk, but not to be hit while in safe (parked cars) area, where he could have been at any time. Not a proximate cause.

1. Dissent: Uses manner of harm rule. Foreseeable that P would have had to close trunk even on highway, and gotten hit, doesn’t matter the manner he got hit, only that it was foreseeable.

iii. Marshall v. Nugent – D caused a car to go off road, and helping to get back on. P stayed on road to warn oncoming traffic and was hit. The risk D created was still present when plaintiff was injured, so there is proximate cause.

iv. D claims that he is not responsible for the plaintiff's injuries because the injuries were caused by AB (3rdperson). If D is negligent, but P’s injuries caused by AB, D can still be responsible, if D should have reasonably foreseen that his negligence would result in AB’s act. If a reasonably prudent person would not have foreseen it, then D is not liable.

b. Intervening forces of nature – only liable if foreseeable risk

DEFENSESI. Contributory/Comparative Negligence

A. Contributory negligence: Failure to exercise reasonable care for own safety

1.Legal effect of contributory negligence:a. Traditional, common law rule = complete bar to Pl’s recoveryb. Comparative negligence systems

i. Pure –if P’s negligence contributed to the injury, figure out % fault of each partyii. Modified– if P’s negligence contributed more than 50% of the injury, then no recovery. If less than 50%, then P can recover total damages less P’s % fault. Should jury know how damages will be apportioned? Better for jury to know b/c then some ppl will know & others not.

B. Butterfield v. Forrester – P negligently riding & hit an obstruction (left by D). Traditional rule was that P’s contributory negligence barred any recovery.

C. Adopting and Applying Comparative Rules1. New York McKinney’s Civ. Prac. Law § 1411 —In any action to

recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of the risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused damages.2. Wisconsin Stat. Ann. § 895.045 —Contributory negligence does

not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering…

3. Crownover v. City of Shreveport—Factors that may influence the degree of fault assigned to each party include:

i. Whether the conduct resulted from inadvertence or involved awareness of danger

ii. How great a risk the conduct created iii. The significance of what the actors sought by the conduct iv. The capacities of the actors, whether superior or inferiorv. Any extenuating circumstances which might require the

actors to proceed in haste, without proper forethought.4. Restatement (Third) Torts, § 8 Apportionment of Liability

i. Factors for Assigning Shares of ResponsibilityFactors for assigning percentages of responsibility to each person whose legal responsibility has been established include

(a) the nature of the person’s risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and

(b) the strength of the causal connection between the person’s risk-creating conduct and the harm.

D. Allocating Full Responsibility to the Defendant in the Interests of Policy or Justice

1. McNamara v. Honeyman—Mentally ill patient hung herself in the state hospital. Court says that mentally ill people who are capable of forming an intent and who actually do intend an act that causes damage will be held liable for that damage.

2. Statutes sometimes impose a duty upon the defendants to protect the plaintiffs who are vulnerable or disabled.

a. The plaintiff’s vulnerability or disability might be especially important if the defendant knows of the plaintiff’s disability which prevents or inhibits the plaintiff’s care for himself; and

b. The plaintiff’s risky conduct endangers himself but not

others. 3. The plaintiff’s “no duty” expression—

a. If a plaintiff has no duty to protect herself by the use of reasonable care, she can not be charged with contributory negligence in failing to do so.

b. Christensen v. Royal School Dist. No .160—Sexual abuse against a 13-yr old girl took place at the school. D claimed that she voluntarily participated, however, court found that a child lacks the capacity to consent to the sexual abuse and is under NO duty to protect him/herself from being abused, therefore cannot be contributorily negligent.

4. Traditional Exceptionsa. The Rescue Doctrine—Rule of law holding that one who

sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence unless the rescuer acted rescklessly.

b. The Last Clear Chance or Discovered Peril—i. The last clear chance doctrine allowed the

negligent plaintiff full recovery when the plaintiff was left in a helpless position by his own negligence and the defendant, who had the last clear chance to avoid injury, negligently inflicted it anyway.

ii. The discovery peril doctrine applies the same rules, but only if the defendant actually did discover the plaintiff’s peril.

II. Assumption of the RiskA. R3T § 2. Contractual/Express Assumed Risk(when permitted by law) absolves D from liability for future harms P might incur. But, D has burden to prove he warned P of risks.

1. Boyle v. Revici - woman who seeks out alternative cancer treatment and is expressly told that treatment is not FDA approved/not guaranteed cannot recover when that treatment fails2. Exception: Unenforceable b/c of public policy

a. Tunkl v. Regents of University of California - admission to hospital conditioned on signing a release immunizing hospital; signed release held void as contrary to public policy (compulsory assumption of the risk).b. Moore v. Hartley Motors – release form signed be4 taking ATV class valid b/c (a) not violation of public policy, (a) service is available elsewhere, (b) fairly entered into (no unfair bargaining, P could choose not to, not essential)

B. Implied assumption of the risk – doesn’t bar recovery, but diminishes it in proportion to P’s conduct. BUT Actual knowledge or voluntary decision may

be relevant in apportioning liability. Most courts that have adopted comparative fault systems for secondary implied assumption of the risk which may reduce P’s recovery.

1. Primary assumption of the risk (limited duty/no negligence) – activities that involve risk of injury, plaintiff impliedly accepts the risks; D not negligent; risk of activity.

a. Betts v. Crawford—P worked as a housekeeper for D when she tripped on a toy and fell down the stairs, resulting in injury. Judgment for P; safe work place must be provided, therefore contributory negligence.

i. The Restatement’s position is subject to two explanations:

1. If D reasonably believes that P has accepted the risk, D may not be negligent at all in relying on P to achieve safety

2. Recognizes a separate and complete defense based on “contractual” (“express”) assumption of the risk.

b. Avila v. Citrus Community College District—P was playing baseball and was hit in the head with a pitch. P impliedly assumed those risks that are inherent in the particular activity.

III. Defenses Not on the MeritsA. Statutes of Limitation—serves at least two distinct purposes:

a. To bar “stale” claims, the presentation of which might be unfair or costly because evidence is lost or subtly altered with time.

b. To permit both personal and business planning and to avoid the economic burden that would be involved if defendants and their insurance companies had to carry indefinitely a reserve for liability that might never be imposed.

c. Crumpton v. Humana, Inc.—suit was filed more than 3 years after injuries were sustained, therefore the statute of limitations has been enacted.

d. The adoption of the discovery rule – The discovery rule delays the accrual of the claim until (1)all the elements of the tort are present; and (2) the plaintiff discovers, or a reasonable person should discover, both the injury and defendant’s roe in causing it.

B. Preemption and Compliance with the Statutea. Courts traditionally agree that compliance with statute or regulation is

not a defense. Statutory requirements usually reflect a minimum standard of care, not a maximum obligation.

b. Miller v. Warren—Ps awoke to a motel room filled with smoke and the door too hot to touch, resulting in serious burns before rescue. Compliance with the fire codes is competent evidence of due care, but NOT conclusive evidence.

LIMITING OR EXPANDING THE DUTY OF CARE ACCORDING TO CONTEXT OR RELATIONSHIPI. Limiting Duties According to Class or Status of the Parties

A. Carriers and Host-Drivers—Those in the business of carrying passengers and goods who hold themselves out for hire by the public owe that degree of care which would be exercised by a very cautious and prudent person. 1. Doser v. Interstate Power Co.—Bus was involved in an accident and a passenger was injured. There was evidence that the other car had turned in front of the bus but the bus is held to higher standard of care and was, therefore, negligent. B. Landowners’ Duties to Trespassers, Licensees, Invitees, and Children

1. Traditional entrant categories/dutyEntrant Category Definition Duty owed by

landowner/occupierInvitee Person on the premises (1)

at least inpart for the pecuniary benefit of thelandowner or (2) on premises open tothe general public(business visitors, general public)

Reasonable care

Licensee Person on the land with permission,but with a limited license to be on thepremises (traditionally, social guests)

Avoid intentional, wanton, or willfulinjury (w/ exceptions)

Trespasser Person who has no legal right to beon another’s land

Avoid intentional, wanton, or willfulinjury (w/ exceptions)

a. Circumstances where landowners/occupiers may owe duty of care (beyond traditional, limited duty) to licensees and/or trespassers:

1. Reason to know of entrant and danger2. Conditions v. actions3. Frequent trespassers in limited area4. Foreseeable highway user

b. Gladon v. Greater Cleveland Regional Transit Authority – P invitee only in station & on train. P on tracks, so is a trespasser on tracks where he was injured (but he was pushed onto tracks, so can’t be held liable as a trespasser). So, D’s duty is to avoid reckless/willful acts only. So question was if conductor acted reasonably once she saw him (for jury to decide).

2. R2T §339: The Attractive Nuisance Doctrine – Landowner liable for harms caused to trespassing children if lured onto land b/c of an artificial condition there if:

a. landowner knows or has reason to know that children are likely to see

condition & trespass, andb. landowner knows or should knows the risks to children, andc. children don’t appreciate the danger b/c of their young age, andd. burden of landowner of maintaining or eliminating the danger slight compared to risk to children, ande. Landowner fails to exercise reasonable care to eliminate danger or otherwise protect children

Bennet v. Stanley – boy trespassed to neighbor, and drowns in pool; mother diestrying to save him. Attractive nuisance doctrine – D owes duty to protect child(pool unguarded, very dangerous), Mother – rescue doctrine.

3. Open and obvious danger—landowner is not liable for injuries even to an invitee which were caused by an open and obvious danger. However, some courts interpret this situation as one of contributory negligence or assumed risk

a. O’Sullivan v. Shaw – P gets injured while diving headfirst into shallow end of pool. Danger so apparent, that D does not need to warn.

C. The Firefighters’ Rule—rule that precludes a firefighter (and certain other public employees, such as police officers) from recovering against a defendant whose negligence caused the firefighter’s on-the-job injury.

1. Minnich v. Med- Waste Inc.—A public safety officer was injured when he jumped into a moving waste truck to stop it from rolling into the street.

2. The firefighter rule has NO application to private individuals who may undertake assistance in a fire.

D. Lessors—The landlord has the duty to exercise ordinary care to the tenant or those on the premises by virtue of the tenant’s rights.

II. Duties of Medical and Other ProfessionalsA. Traditional Duties of Health Care Providers in Traditional Practice

1. Medical Malpractice suits are negligence suits with some special rules2. Reasonable Care

a. If Dr has skill that exceeds avg Dr, standard of care based on his own skill.

b. Law recognizes Drs have diff abilities, but minimum keep up with developments and use best judgment.

c. No guarantee to good result; Dr liable only if negligent.d. “Two schools of thought” Doctrine - When there are medically

acceptable alternatives, a Dr is not liable for using one method as opposed to another as long as it is reasonable for Dr to use that method (b/c it’s widely accepted).

i. Walski v. Tiesenga – P goes into surgery; bad outcome. P’s expert says he would have used a diff method. Dr not unskillful or negligent, just of a differing opinion than the expert. D’s method was not proven unacceptable.

e. A deviation or departure from accepted practice, traditionally based on community standards [locality rule], but use similar areas as basis [modifiedlocality rule].

i. Vergara v. Doan – P saying Dr negligent, but D says use the modified locality rule, which permits a lower standard of care. The reasons this rule was established no longer apply. Technology has allowed rural doctors the same training, facilities, etc as an urban doctor.

3. Good Samaritan statutesa. Emergency care - Any individual … who in good faith renders emergency care at the scene of an accident or emergency to the victim, or while transporting the victim to a hospital or other facility where treatment or care is to be rendered, shall not be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care (also provides relief from civil liability for practitioners rendering emergency care).

4. Specialists—Specialists are held to the standard of their specialties; thus an orthopedic surgeon is held to a higher standard than that of a family practitioner.5. Non-Medical Practitioners – standard not based on medical standards, only according to their school of belief (chiropractors).6. Other Professionals—Accordingly with other professions, there are certain standards to which persons are held

a. Nurses—held to the standard of nurses of a similar practice b. Hospitals—owe a duty of reasonable care under national standards fixed

by the Joint Commission on Accreditation of Hospitalsc. Other callings, occupations, activities—Courts often states the prudent

person standard of care by referring to the care that should be exercised by a reasonable person in the defendant’s occupation or status.

B. Res Ipsa Loquitora. P must have unusual injuries (not of the kind that happens w/o

negligence), while P is unconscious, has to be injured during medical treatment.

i. States v. Lourdes Hospital – P under anesthesia, cannot show how injury happened. Use res ipsa. Expert necessary to explain to jury common knowledge in medical community. Jury decides if negligence more probable than not, and probably D.

ii. Ybarra v. Spangard – P under anesthesia, use res ipsa, but many ppl involved, cannot prove probably defendant (exclusive control), & all cannot be responsible b/c of diff functions. Court holds all D jointly liable, b/c Ds knows more info, and they should come forward with it.

b. Informed Consent—requires a physician to warn a patient of the risks and consequences of a medical procedure.

i. Harnish v. Children’s Hospital Medical Center – Dr failed to disclose a risk of operation, and P injured. P may not have gone through w/ operation if he knew ofthe risk. Important to have informed consent – ppl have right over their own body (dignity).

1. Is this something Dr should have known & informed patient of? – expert testimony needed for this

2. Would a reasonable person still have proceeded with operation? – jury question.

ii. Woolley v. Henderson—The standard of disclosure is that of the reasonable medical practitioner and this will ordinarily require expert medical testimony.

1. Causation Test—the plaintiff cannot recover merely by showing that she herself would have refused the injury-causing operation had she been fully informed. She will

have to go further and show that a reasonable person would also have refused it.

2. A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.

III. Family Members and CharitiesA. Family Members

a. Traditional Family Immunities—i. Spouses-historically, spouses cannot sue each other

ii. Parent and Child—So long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained.

iii. Scope and Exceptions—1. Property interests—children are allowed to sue a parent

in order to protect a property interest, as well as the ability of a spouse to sue each other in torts as conversion.

2. Relationship terminated—Parental immunity is terminated when the child reaches the age of majority, or when the child is emancipated.

3. Intentional Torts—liability for intentional torts is often imposed in most states.

4. Family injury due to violation of duty owed to a larger class—If family members are involved in an injury-causing event in which the family relationship is not intersected.

5. Rationale—a. To permit suits btwn family members would be

to encourage fraud and collusion.b. To permit suits of this kind would be to interfere

with the family, and disrupt family unity and harmony.

iv. Goller v. White—A foster child was injured while living in home and attempted to sue “parent”—Care for the child in loco parentis can claim the parental immunity.

B. Charitiesa. Traditional Rule—Most states have adopted the rule that charities are

not liable in tort. This includes virtually all “non-profit” organizations such as hospitals, the Boy Scouts, etc.

b. Exceptions— (as previous to R2T §895E)i. Charity was not exempt from liability as to non-trust funds.

ii. Some jurisdictions have phrased the rule to say that charities are not liable for the negligence of its servants (MINORITY).

iii. Charity cannot claim the immunity against those who paid for its services.

iv. Charity cannot claim the immunity as to its collateral commercial activities.

v. Intentional or “reckless” torts were not protected by the immunity in some states.

c. General Abolition—i. R2T §895E states the rule that there is no charitable immunity,

and most states have abolished it entirely, by some statute and some by judicial decision.

IV. Governmental Entities and OfficersA. Traditional Immunities and Their Passing

a. Governmental Tort Immunity—this immunity extends to all their agencies unless statutes provide otherwise. In some rare cases, extends to protect government contractors following government specifications.

b. Taking of Property—Under the Due Process clause of the 5th and the 14th Amendments, neither state nor federal governments can “take” private property for public purposes without just compensation.

c. Municipal Immunity—Municipalities and other localities are not “sovereigns,” however, they have been accorded immunity nonetheless, with some exceptions.

d. Abolishing State and Municipal Immunity—most states have enacted statutes that abolish the state’s immunity, at least to some extent

e. Abolishing Federal Immunity—Federal Torts Claims Act of 1946.B. The Federal Torts Claims Act—authorizes private tort actions against the United

States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

a. FTCA claims against the government must be brought in Federal court and the substantial law that governs claims under the FTCA is not federal law.

b. United States v. Olson—2 injured miners and a spouse sue the U.S claiming that the negligence of federal mine inspectors helped bring about a serious accident in AZ. The FTCA was not in effect here because it was not shown that a person would have owed the same duty.

c. The Feres Rule—The FTCA makes no specific exception for service-connected injuries to member of the armed forces, but the Act as a while was not intended to impose unprecedented liability upon the government.

V. Relationships or Their AbsenceA. Nonfeasance--No Duty to Act (as opposed to misfeasance – negligence in actively doing something)

1. R2T § 314 - An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty is applicable.

a. Yania v. Bigan – D came to P’s coal-mining operation; P taunted D, which induced D to jump in trench & he drowned. P didn’t help him. No duty to act. P not responsible for D jumping into water (D is adult making own choices).

2. Exceptions, Qualifications, and Questions—a. There are a number of exceptions to the no-duty rule:

1. If a person knows or has reason to know that his conduct, whether tortuous or innocent, has caused harm to another person, then he has a duty to render assistance to prevent

further harm.2. If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring.3. If a statute or ordinance requires a person to act

affirmatively for protection of another.b. R3T §43 states that an actor who undertakes to render services to another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a duty to use reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without the undertaking.

1. Wakulich v. Mraz—Ds induce minor P to drink full bottle of alcohol for $; P becomes sick. Normally no duty to act, but they voluntarily undertook caring for her by checking in on her, and also b/c by barring a call to 911, they took it upon themselves to care for her.

3. Duty to Protect from Third Personsa. Defendant’s relationship with the plaintiff

1. Posecai v. Wal-mart Stores, Inc. – P robbed in D’s parking lot. Court says there is a duty as a matter of law. The greater the foreseeability of harm, the greater the duty of care imposed.

a. Approaches in determining duty of businesses/landowners:

(a)Specific harm rule – if aware of imminent specific harm(b)Prior similar incidents (foreseeability)(c)Totality of circumstances - takes into account other factors that may affect foreseeability(d)Balancing test – balances the interests (risk-utility)

2. Marquay v. Eno – P (students) abused by D’s (school) personnel. Statute says they must report the abuse (negligence per se); no legislative intent for statute to infer a duty. School has affirmative duty b/c of special relationship (imposes on them duty of reasonable supervision).

b. Defendant’s relationship with Dangerous Persons-§ 41: Defendant’s relationship with dangerous persons, actor owes duty to 3rd person b/c of risks established from the relationship.

1. Special relationships can be: (a) a parent with dependent children, (b) a custodian with those in its custody, (c) an employer with employees, and (d) a mental-health professional with patients.

2. Tarasoff v. Regents of University of California – patient confesses to therapist that he wants to kill someone. Therapist (D) warns campus police, but not P. D kills P. D had duty to warn P and exercise reasonable care to protect foreseeable victims.

a. Problem: confidentiality – lawsuits may arise. But court says safety more important (cost of warning is low). Also, maybe false warning. Expert testimony to show if therapist acted prudently or not.

3. Brigance v. Velvet Dove Restaurant, Inc.- D (restaurant) negligently served alcohol to a clearly intoxicated person. Commercial vendor has duty. Driving intoxicated high risk & very foreseeable. But also must show proximate cause.

a. Dram Shop Laws – establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third-parties—those not having a relationship to the bar, as a result of alcohol-related car crashes and other accidents.

VI. Limiting Duties to Protect Against Special Types of HarmsA. Emotional Harm Resulting From Injury to Another

a. Tort → Emotional Harm (no physical harm)Grube Dillon Thing Rest. §47

P saw last look of persongetting hit by train, andsaw the carnage. Poperated the train.

Mother & sister saw carstrike and kill victim.

P not present at time ofinjury, but once she foundout her son injured,rushed to scene, found hisbody.

Zone of danger Bystander(guidelines approach)

Bystander(bright-line rulesapproach)

Bystander (Rest.)

• P w/in zone of dangerof impact• P fears for own safety• Causes immediateshock/trauma

Is it foreseeable that Pwill suffer emotionalharm from injury to thirdperson?Consider:• P close to scene?• P observe accident?• P/victim closelyrelated?

• P must be closelyrelated to victim• P must be present atthe scene at the timeof the accident• P must suffer seriousemotional distress

• 3rd person suffersserious bodily injury• P suffers seriousemotional distress• P “perceives the eventcontemporaneously”• P is close familymember

No recovery here, Pcaused it!

Yes, recovery abovefactor satisfied here

No recover; wasn’tpresent at time of injury

STRICT LIABILITYI. Vicarious Liability

a. Respondeat Superior and Scope of Employmenti. Respondeat Superior is the principle that employers can be held

liable for the torts of certain employees, provided those torts were committed within the scope of employment.

ii. Riviello v. Waldron—A cook was flipping a knife while talking to a

customer when it struck and injured the customer’s eye. The bar owner was held liable for the employee’s actions.

iii. Fruit v. Schreiner—An insurance salesman was at a convention, left, and upon his return struck D and crushed his legs. Employer was held liable as P was in the scope of his employment.

II. Strict Liability for Trespassory Torts a. Trespass form of action—This write of action can be obtained whenever the

plaintiff claimed an injury that was both: (1) Direct; and (2) foreseeable.b. The Case form of action—Plaintiffs were able to obtain a second kind of writ

when the injury was indirect. When P suffered an indirect injury, Case alone would be the applicable writ.

c. The shift of fault-based liability: Brown v. Kendall—Negligence is required, even in cases that fit the old Trespass form of action.

d. Strict Liability for entities that escape from your propertyi. Rylands v. Fletcher- D builds pond over old mine shaft, which breaks

and overflows into P’s mine shaft. No negligence or intent. D liable based on strict liability for entities that escape from your own property.

e. Abnormally Dangerous Activitiesi. R3T § 20: D strictly liable for abnormally dangerous activities

1. An activity is abnormally dangerous if:a. the activity creates a foreseeable and highly

significant risk of physical harm even when reasonable care is exercised by all actors; and

b. the activity is not one of common usage.ii. R3T § 22. Wild Animals: An owner or possessor of a wild animal is

subject to strict liability for physical harm caused by the wild animal (not commonly domesticated).

iii. R3T §23. Abnormally Dangerous Animals – if the owner knows or has reason to know that animal has dangerous tendencies abnormal for the animal's category is subject to SL for physical harm if caused by the animal’s dangerous tendency.

III. Rules on Strict Liabilitya. If an activity is normal - "a matter of common usage" - in the community, the

strict liability rule does not apply and liability is limited to negligence and intent.

i. B/c it’s acceptable. Also, if activity is common, more likely to benefit community

b. Imposed for abnormally dangerous activities: Hazardous Wastes/Blasting & Explosives/Poisons (like crop-dusting)

c. Environmental statutesd. § 349 Limitations on Strict Liability - When it comes to the intervening acts

of third persons, innocent, negligent, and even reckless acts of third persons present no barrier to strict liability – nor do forces of nature (but some courts cut off liability if intervening act of god).

IV. Products Liabilitya. Evolution of Liability Theories—

i. Grounds or theories of liability—products liability law deals with the

liabilities of those who manufacture or distribute harm-causing products.

ii. Negligence action—the privity requirement—The basis for liability was not the general duty of reasonable care but the duty implicitly undertaken in a contract of sale, the manufacturer could be liable only to buyers who were in privity of contract.

iii. Misrepresentation—May aid plaintiffs and may even produce punitive damages awards.

iv. Warranty as a contract claim—because they are traditionally a contract claim, liability is imposed void privity.

V. Manufacturing Defectsa. Establishing the prima facie case

i. Commercial Seller/Saleii. Defect (at time left D’s control)

1. consumer expectation test2. product departs from its intended design

iii. Causation - Defect was actual and proximate cause of P’s harmb. P may rely on circumstantial evidence to satisfy prima facie case; does not

need to identify specific defect (it can be inferred).i. Lee v. Crookston Coca-Cola Bottling Co.- waitress injured when coca-

cola bottle exploded in her hand. P can’t prove specific defect (doesn’t know). In SL, plaintiff needs to prove:

1. Product defective at time mfr relinquished control. How to prove:

a. Eliminate all other possibilitiesb. Then ask for res ipsa

2. For SL, P doesn’t need to show D was negligent, only that product was defective.

c. R3T §3. It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

i. was of a kind that ordinarily occurs as a result of product defect; and was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

ii. R3T §7. Liability Of Commercial Seller Or Distributor For Harm Caused By Defective Food Products. Under § 2(a), a harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient.

1. Jackson v. Nestle –Beich, Inc. - Nut Shell in candy. Pecan shell is natural to pecans, but court rejects the foreign-natural doctrine. Court says a consumer does not reasonably expect to encounter a shell when eating candy.

VI. Design Defectsa. Establishing the prima facie case

i. Commercial seller/saleii. Defect (at time left D’s control)

1. Rest 2d: Consumer Expectations Test2. Rest 3d: Risk-Utility Balancing Test

iii. Causationb. Consumer expectation test v. risk-utility balancing test

Consumer Expectations Test(R2T §402A)

Risk-utility Balancing Test (R3T §2)

It is more dangerous than anordinary consumer wouldexpect when used in an intendedor reasonably foreseeablemanner

Risk-utility test - weighing the benefits and risks○ If the benefits of the challenged design do not outweigh the risk inherent in such design (risk-utility test)

Factors relevant to asses risk ○ Likelihood that the product design will cause injury ○ The gravity of the danger posed ○ The mechanical and economic feasibility of an improved design

1. Leichtamer v. American motors Co.- P injured when jeep overturned. There was a rollback that implied it would be safe during a rollover. But not made clear to public that is was for side-side, not front-back. D created an expectation of safety, but failed to warn of hazards.

2. Knitz v. Minster Machine Co.- no safety features to keep user’s hand out of area when in use (P loses fingers). Court uses risk-utility test.a. Risk-utility test -product design is in defective condition

to the user or consumer, ifi. It is more dangerous that an ordinary consumer

would expect when used in an intended or reasonably foreseeable manner, or

ii. If the benefits of the challenged design do not outweigh the risk inherent in such design.

3. Barker v. Lull Engineering- loader did not have safety net, which would have prevented accident.a. Consumer Expectation – can only be used for a simple

product, where a normal consumer could understand, and know what to expect

b. Risk-Utility – P needs to show defective design & proximate cause. Then, D’s burden to show benefits of design outweighs any risk of danger inherent.

iii. Some factors to be considered in applying the risk-utility test1. Usefulness and desirability of the product2. Availability of substitutes3. Mfr’s ability to eliminate unsafe character4. User’s ability to avoid danger5. User’s probable awareness of the danger

iv. Factors relevant to whether an alternative design is reasonable and whether its

omission renders a product not reasonably safe include:1. magnitude and probability of the foreseeable risks of harm2. instructions and warnings accompanying the product3. nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing4. relative advantages and disadvantages of the product as designed and as it alternatively could have been designed

a. likely effects of the alternative design on production costsb. the effects of the alternative design on product longevity, maintenance, repair, and estheticsc. the range of consumer choice among products

v. Manifestly Unreasonable Designs - No Reasonable Alternative Design1. Example: exploding cigar causes injury – no reasonable alternative available, but the utility is so low, and risk of injury so high that it can be concluded that the design is defective and shouldn’t have been marketed at all.

vi.§ 402A. - [This section has been superseded by the Restatement of the Law Third, Torts: Products Liability.]

1. Comment i: Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if

only from over-consumptiona. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous.b. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.c. Good butter is not unreasonably dangerous merely, because it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

VII. Warning or Information Defects - Focusing on Point-of-Sale WarningsA. Establishing the prima facie case

a. Commercial Sellerb. Warning/Info Defectc. Causation (but-for may be implied)

B. R3T §2 - A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. i.

a. Liriano v. Hobart Corp.- P injured hand by machine mfr by D. Machine sold with safety device, but later taken off (unknown who). It is obvious meat grinder is dangerous, but a reasonable person may not know of the use of safety guards, and that they are available, so the manufacturer had a duty to inform of this alternative, and at a relatively low cost.

1. Duty to provide informationa. A mfr’s failure to provide info about the dangers and risks associated,

may make an otherwise safe product dangerous and defective.b. Warnings alert users to risks that are not obvious, or to inform users of

safer alternatives.c. Cost of warning low, so risk-utility balance: always place a warning?

i. Warnings pollution - the necessary warnings can get lost within the unnecessary, trivial warnings. This is case-specific.

ii. Reasonability of warning1. Characteristics of user group2. The understandability and clearness of the warnings

d. Most courts reject SL for unknowable dangers (warning not possible)

2. Obvious Dangera. If danger is obvious, product not defective for lack of warning (D can use contributory negligence defense – open & obvious danger)

i. However, if the mfr foresees that harm will occur in spite ofobvious danger, mfr may be liable for design defect if it couldeasily warn and failed to do so.

b. Open and obvious danger may prevent liability for failure to warn under consumer expectations test, but not necessarily under a risk- utility test.c. For allergies - must place warning if the allergy is one that a lot of people have. Also, it must be an allergy to an ingredient that may not be obviously is in it. Also considered, is the extent of harm caused by the allergy.

3. Causationa. If a warning is needed, the plaintiff would have to have read, understood and heeded the warning. Otherwise, the failure to warn cannot be the cause of the harm (causation test). But courts usually presume that the plaintiff would have done this, and leave the burden on the defendant to prove otherwise.

b. Shifting of the burden on defendant once plaintiff proved that the failure towarn "greatly increased the likelihood of the harm that occurred."