Torts Outline

Torts Outline

TORTS

  1. Intentional Torts

    1. Intent

      1. Overview and Definition

        1. Intentional torts require that D act with intent (not recklessness or negligence).
        2. Intent = D desires the result or knows to a substantial certainty that it will occur.

          1. Intent is subjective (D must, in his own mind, exhibit desire or substantial certainty) - whether a reasonable person would have been substantially certain is evidentiary but not dispositive.
      2. Intent as "Desire"

        1. Intent is satisfied if D desires the consequences of his acts.
      3. Intent as "Substantial Certainty"

        1. Intent is also satisfied when D is substantially certain (in his own mind) that his acts will cause the elements of the tort to occur.
        2. Garratt v. Dailey: The court remanded to the trial court the issue of whether a five-year-old boy was substantially certain the victim would fall while attempting to sit on a chair the boy had moved.
      4. Transferred Intent

        1. Applies to five traditional trespass torts:

          1. Assault
          2. Battery
          3. False Imprisonment
          4. Trespass to Chattel
          5. Trespass to Land
        2. If D intends any of these five torts, but his acts instead or in addition result in any of the other five intentional torts, D is liable, even though he did not intend the other tort.

          1. Intent transfers from one tort to another (with the five).
          2. Intent transfers from one intended victim to another.
        3. Restatement only allows transferred intent between assault and battery.
      5. The Mistake Doctrine (reasonable mistake of fact is no defense)

        1. If D intends to do acts which would constitute a tort, it is no defense that D mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly that there is a privilege.
      6. Insanity and Infancy (not defenses)

        1. Neither insanity nor infancy is a defense to intentional torts.
        2. D may be so young or mentally ill that he may not actually possess the requisite intent because it is a subjective test.
        3. However, the child or insane person need not appreciate the significance or wrongfulness of his act.

          1. D, a child, may be substantially certain that V will hit the floor if he pulls the chair away even though he does not know that she will incur injuries as a result of his conduct.
    2. Battery

      1. Overview and Definition

Battery occurs when D's acts intentionally cause harmful or offensive contact with V's person.

  1. Accidental contact must be analyzed under negligence or strict liability.

  • Intent Requirement

    1. Battery requires intent to cause the harmful or offensive contact but not necessarily intent to do harm.

      1. Leichtman v. WLW Jacor Communications Inc.: Cigar smoke purposefully directed at P can constitute a battery.
      2. Once the defendant intends and accomplishes the offensive or harmful touching, he is responsible for harm caused by the battery even if minimal or no physical harm was actually intended.
  • Harmful or Offensive Contact

    1. Battery encompasses either harmful or offensive contact.

      1. The tort compensates for psychological affronts where even trivial physical contact has occurred.
      2. The offensive contact need not even physically touch the body.

        1. Aggressive and demeaning grabbing of a plate from P's hands can constitute a battery.
    2. There is no requirement that the victim be conscious of either the contact or its harmful or offensive nature at the time of the intrusion.
    3. The offensiveness of the contact is based on what an ordinary person would consider offensive.

      1. If D knows that P is hypersensitive to touching that an ordinary person would not find offensive yet continues to touch anyway, courts are split whether D should be liable.

        1. Courts should consider whether the touching would cause physical injury or whether D could easy acquiesce to P's request.
  • Causation

    1. D's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact.

      1. D, himself, need not touch P - he could throw a rock at him.
  • Assault

    1. Overview

      1. Assault recognizes that pure psychological injury should be compensable.

        1. I de S et ux v. W de S: Husband was entitled to recover on behalf of his wife from D who wielded an axe at her. Even though the wife was not physically touched, the attack had caused her harm, the fear of imminent physical injury.
    2. Definition

      1. Assault occurs when D's acts intentionally cause V's reasonable apprehension of immediate harmful or offensive conduct.

        1. Restatement (unlike many courts) eliminates the "reasonable" requirement.
        2. Criminal Assault = attempted battery.

          1. D could be guilty of a criminal assault by swinging a bat at V's head, but if V were looking the other way and was not in apprehension of immediate harmful contact, no tortious assault occurred.
      2. Intent Requirement
  • D must desire or be substantially certain that his action will cause the apprehension of immediate harmful or offensive conduct.

        1. Motive is irrelevant.
      1. Accidental creation of such apprehension may be negligent infliction of emotional distress but not assault.
      2. Transferred intent between the other four trespass torts applies.

        1. Alteiri v. Colasso:
    1. Apprehension

      1. V must perceive that harmful or offensive contact is about to happen to him.
      2. If V is attacked from behind or while asleep, there is no assault.
      3. Apprehension can be created even if D does not have the ability to actually cause the harmful or offensive contact.

        1. If D tells V that a gun is loaded when it is not and fires the gun at V, he may be guilty of assault even though there was no possibility of causing the battery.
      4. Apprehension can only be created if D has the apparent ability to cause the harmful or offensive contact.
    2. Imminent Harmful or Offensive Contact

      1. V's apprehension must be of imminent harmful or offensive contact.
      2. SPLIT

        1. Traditional rule = Words alone are insufficient to establish assault; an overt act must establish the imminent threat.
        2. Restatement = Verbal statements can on occasion imply sufficient immanency.

          1. Restatement agrees that the threat must be imminent, though.
      3. Castro v. Local 1199: Threatening an employee while slamming a table was "forward looking" and was therefore insufficiently immediate to constitute assault.
      4. The threatened harm may be harmful or simply offensive.
    3. Reasonable Apprehension

      1. SPLIT

        1. Many Jxs require the victim to suffer "reasonable" apprehension.
        2. Restatement rejects the "reasonable" requirement.

          1. Under Restatement, D's exploitation of V's unreasonable fears or gullibility is compensable.
          2. However, Restatement probably did not intend to include a privileged act in the definition of assault.
    4. Fear versus Apprehension

      1. The requisite apprehension of imminent contact need not produce fear in V.
      2. Apprehension acknowledges V's awareness that imminent harmful or offensive contact will occur unless V takes effective evasive action.
      3. V's confidence that he can effectively evade D (and hence, lack of fear) does not minimize D's liability for assault.
      4. Apprehension of an offensive, but not harmful, contact can constitute assault, even though the mere offensiveness of the imminent contact would not induce fear.

    Conditional Assault

    1. Assault made conditional on V's noncompliance with an unlawful demand still constitutes assault, even if V is confident no assault will actually occur if V complies with the unlawful request.

      1. If D brandishes a club and threatens to beat V over the head unless V gives D his wallet, D is guilty of assault.

  • Source of the Contact

    1. It is not necessary that D be the perceived source of the threatened harmful or offensive contact.
  • False Imprisonment

    1. Overview and Definition

      1. In false imprisonment, D unlawfully acts to intentionally cause confinement or restraint of V within a bounded area.
      2. Accidental confinement must be addressed under negligence or strict liability.
      3. Generally, V must be aware of the confinement at the time of restraint.
    2. Bounded Area

      1. V must be confined within an area bounded in all directions.

        1. It is not false imprisonment if V is free to proceed in any direction, even though he is prevented from going in the direction he wants.
      2. The bounded area could be large, even an entire city.
      3. A vehicle, although moving, can still constitute a bounded area.
      4. Reasonable means of escape precludes liability for false imprisonment.

        1. The escape is not reasonable if:

          1. It requires V to be heroic;
          2. It requires V to endure excessive embarrassment or discomfort; or
          3. V is unaware of the means of escape.
    3. Means of Confinement or Restraint

      1. For false imprisonment to exist, V must be confined or restrained.
      2. Confinement may be accomplished by:

        1. Physical Barrier

          1. The barriers to constitute false imprisonment must surround the victim in all directions so that no reasonable means of escape exists.
        2. Force or Threat of Immediate Force

          1. Force or threat of immediate force can be used to restrain V.
          2. The force may be directed at:

            1. V;
            2. V's family;
            3. V's companions; or
            4. V's property.

              1. D grabs V's coat and tells her that she cannot leave with it. If V stays and refuses to give up her chattel, D is guilty of false imprisonment.
          3. Use of threats of economic retaliation or termination of employment to coerce a victim to remain do not constitute false imprisonment.
          4. Dupler v. Seubert: Physical threats were used to restrain an employee.
        3. Omissions
  • False imprisonment can result from D's omission when he had a duty to act.

          1. D invites V on his boat and promises to bring V ashore when requested, D's failure to do so constitutes false imprisonment.
        1. There is no general duty to act, so P must establish that D, in the specific circumstance, has a duty to act.
      1. Improper Assertion of Legal Authority (False Arrest)

        1. False arrest is false imprisonment by means of improperly asserting legal authority.
        2. V must submit to the arrest for it to constitute imprisonment.
        3. The arrest is improper if the actor imposing confinement is not privileged under the circumstances.

          1. Privileges for police officers

            1. Arrests pursuant to an apparently valid warrant are privileged.
            2. A police officer is privileged to arrest for a felony without a warrant when he reasonably suspects that the other is guilty.
            3. Police officers are privileged to arrest for misdemeanors constituting breaches of the peace occurring in their presence.
          2. Privileges for private citizens

            1. A private citizen is only privileged when she reasonably suspects the individual arrested committed a felony and a felony in fact has taken place.

              1. D can make a reasonable mistake in arresting the wrong person but only if the felony has actually taken place.
            2. Private citizens are privileged to arrest for misdemeanors constituting breaches of the peace occurring in their presence.
            3. If D fraudulently induces V into wrongfully believing that D is a police officer, and V submits to detention under circumstances where only a police officer is privileged to detain, D has committed false imprisonment by false arrest.

    1. Contrast False Arrest with Malicious Prosecution and Abuse of Process

      1. Where an arrest is privileged and therefore conforms to all requisite legal requirements to justify arrest, the possibility of liability for false arrest is precluded
      2. A lawful arrest if motivated by bad faith and satisfying other elements, may constitute malicious prosecution.
      3. The improper use of certain compulsory processes such as subpoenas, despite conforming to legal requirements, and therefore not false imprisonment, may be tortious as abuse of process.
    2. Consciousness of Confinement

      1. False imprisonment requires that V be conscious of the confinement at the time of the imprisonment.

        1. Restatement modifies this requirement and would find liability where V is not aware of the confinement but is harmed by the confinement.
    3. No Minimum Time

      1. False imprisonment covers even minimal lengths of detention.

    The amount of compensation awarded for false imprisonment will reflect the length of detention.

  • Transferred Intent

    1. False imprisonment is one of the five trespass torts in which intent transfers from victim to victim and tort to tort.
  • Malicious Prosecution (MP) / Malicious Institution of Civil Proceedings (MICP)

    1. Definition: MP addresses wrongful criminal prosecutions and MICP addresses wrongful civil proceedings. They both require (all five):

      1. Institution or Continuation of Criminal or Civil Proceedings Against P;

        1. D must be responsible for initiating or in some way supporting the continuation of the legal proceedings against P.
        2. D may ask another to bring or maintain the suit.
        3. False testimony by D generally is not sufficient, by itself, to maintain an action for MP or MICP, although it may be used as evidence of D's instigating activities with an improper purpose.

          1. False statements to a prosecutor that stimulate him to initiate a proceeding are generally not immune from the overall bar on civil liability related to a witness's testimony.
      2. Termination of the Proceeding in Favor of P;

        1. Suits for MP and MICP cannot be filed until after the initial criminal or civil proceedings have been terminated in favor of P.

          1. Except for ex parte proceedings (such as a proceeding to attach property), neither MP nor MICP actions can be brought until the alleged wrongful litigation is fully completed.
          2. The alleged wrongful litigation must result in exoneration of P.

            1. Dismissal of the proceeding because of the statute of limitations, settlement of the case, misconduct by the accused that prevents a proper trial, request for or acceptance of mercy by the accused, or new proceeding that has been instituted for the same offense and that has not been terminated in P's favor do not constitute exoneration.
            2. If the proceeding is dropped right before exoneration or if the proceeding is abandoned because the accuser believes the accused is innocent or that a conviction has become impossible or improbable, some courts will accept this as meeting the exoneration test.
      3. Absence of Probable Cause for Prosecution or Civil Proceeding;

        1. There must be no probable cause for the criminal prosecution or civil proceedings.

          1. P must prove that there was no reasonable basis for D to believe that he was guilty of the criminal charge or potentially liable in the civil proceedings.
          2. Restatement defines probable cause as the accuser's subjective belief in the accused's guilt or liability and a reasonable basis for such belief (therefore, if one element is missing, probable cause is lacking).
      4. Improper Purpose or Malice of the Accuser; and

        1. D must have acted with malice or (using Restatement terminology) an improper purpose.
  • Improper purpose is established if D brought criminal or civil proceedings against P:

            1. Whom D did not think was guilty or liable; or
            2. In order to harass P or gain some extraneous advantage unrelated to the merits of the litigation (even if D believes that P is guilty or liable for the charge).
          1. If D simply dislikes P, this alone does not prove malice or improper purpose.

        1. Damages suffered by P.

          1. Damages include economic consequences of the wrongful litigation, emotional distress, reputational injury, and (where malice is established) punitive damages.
          2. MIN (English Rule): Only allows MICP where P incurred some special damage such as seizure of the person, attachment of property, or an injunction (does not apply to MP).
      1. Immunity of Public Officials

        1. Prosecutors, judges (acting a judicial capacity), other public officials (except public defenders), and the government that employs them are generally immune from discretionary decisions to prosecute.
      2. Interaction Between False Imprisonment and MP/MICP

        1. Imprisonment under criminal process or civil commitment does not constitute false imprisonment as long as proper legal procedures are followed.
    1. Abuse of Process

      1. Definition: Intentional misuse of either a civil or criminal legal process for an ulterior purpose (than for which it was designed) resulting in damage to the plaintiff.

        1. P must prove the ulterior purpose.
      2. Unlike MP/MICP:

        1. There is no need to await the outcome of the proceedings (can address the abuse of legal processes within such litigation).
        2. Abuse of process can apply regardless of who ultimately wins the litigation.
      3. Mancini v. Marquette Univ.: The court reversed liability on a claim of false imprisonment, but held that the plaintiff alleged a proper case for abuse of process. P, a student at Marquette University, was restrained from leaving campus by the university dean and others through wrongful use of temporary civil commitment procedures designed to determine whether P's mental condition required imposing detention. University officials knew P's mental condition did not justify civil commitment, but used the procedure to temporarily detain the student until her father could be notified of her intent to withdraw from the university. The court held that the university's compliance with legal procedures precluded P's claim of false imprisonment, but that D's misuse of procedure allowed liability for abuse of process.
    2. Intentional Infliction of Emotional Distress (IIED)

      1. Definition: IIED exists when D, by extreme and outrageous conduct, intentionally or recklessly causes V severe mental distress (MAJ = no physical manifestation needed).

        1. Extreme and Outrageous Conduct

    Restatement definition: conduct which is beyond all possible bounds of decency and to be regarded as atrocious, and utterly impossible in a civilized community.

    1. No objective standard, but mere rudeness or callousness is insufficient.
    2. The vulnerability or known sensitivity of V (e.g., whether a child or very ill) and the relationship between D and V (e.g., whether superior-subordinate) are important.

  • Sexual Harassment and Racial Epithets

    1. Courts have hesitated in extending IIED to sexual and racial harassment, especially in isolated incidents.
    2. Courts have been more likely to recognize liability where a pattern of harassment is constant and ongoing, and where speech is combined with conduct.

      1. Courts have held corporations liable for failing to respond to harassment perpetrated by its employees, especially those in supervisory roles.
    3. Jones v. Clinton: Paula Jones, a state employee, alleged that Bill Clinton, while Governor of Arkansas, exposed himself while propositioning her. The alleged conduct was sufficiently brief and without coercion so as not to be extreme and outrageous for purpose of IIED. Also, Jones failed to prove tat she suffered any severe mental distress required by the tort.
  • Constitutional Limits

    1. Public Figures

      1. Public officials must prove New York Times malice (same as in defamation) in order to recover under IIED: knowledge or reckless disregard toward the truth or falsity of the assertion.
      2. Verbal disparagement to public figures, which are not asserted as factual, are generally protected under the 1st Amend. no matter how extreme and outrageous.
      3. Hustler v. Falwell: The Supreme Court held unconstitutional the determination that a parody advertisement in Hustler magazine could result in liability under IIED. The mock advertisement, while clearly satirical, suggested that Jerry Falwell, a nationally known religious and political leader of the Moral Majority, had his first sexual encounter with his mother in an outhouse. The Court held that a public figure could not recover without proving New York Times malice; because the parody was never asserted to be truthful and because an ordinary reader would not reasonably interpret it as truthful, the Court found there could be no liability.
    2. Private Individuals

      1. Proof of negligence toward the truth is applied in defamation cases involving private plaintiffs in public controversies - by analogy, this lesser standard could apply to IIED.
  • Intent or Recklessness to Cause Severe Emotional Distress

    1. P must prove that (either):

      1. D intended to cause severe emotional distress; or
  • D acted with a deliberate disregard of a high degree of probability that severe emotional distress would result (i.e., recklessness).

        1. Severe Mental Distress

          1. P must actually suffer severe mental distress.

            1. Mild distress will not suffice.
            2. MAJ: physical manifestations (heart attack, stomach trouble attributable to stress or shock) of severe mental distress are not necessary.
      1. Third-Party Recovery

        1. IIED is not one of the five torts that allows transferred intent.
        2. However, if D is substantially certain or deliberately disregards a high degree of risk that V will incur severe emotional distress by observing D's conduct (e.g., by attacking a young child's parent in front of the child), D may be liable for IIED.
        3. Courts have usually limited recovery to indirect third-party victims when (all three):

          1. The third party is a close relative of the direct (intended) victim;
          2. The third party is Present at the scene of the outrageous conduct against the direct victim; and
          3. D knows that the close relative is present.

            1. Restatement does not require D's knowledge of the close relative's presence.
        4. Restatement also allows non-relatives that can satisfy all other elements of the tort to recover if they are present and suffer physical manifestations of severe distress.
        5. If D intends to cause emotional distress to the third party by his actions toward another, the third party becomes a direct victim and need not be present, a close relative, or suffer physical symptoms.
      2. Exception for Innkeepers, Common Carriers, and Other Public Utilities

        1. Innkeepers, common carriers, and other public utilities (e.g., telegraph company) are liable for intentional gross insults (rather than extreme and outrageous conduct) that cause patrons to suffer mental distress (rather than severe distress).

          1. P must be a patron of D - but need not have already purchased a ticket, etc.
        2. MAJ: acknowledge these exceptions but do not extend them.

          1. Slocum v. Food Fair Stores: The court held, without deciding whether to generally adopt the tort of IIED, that special liability for public utilities did not apply to a grocery store. A grocery clerk told a customer, "You stink to me," allegedly causing V a heart attack aggravated from pre-existing heart condition. There was no allegation that D knew about the pre-existing condition.
    1. Intentional Interference with Contract (IIK) / Intentional Interference with Prospective Economic Relations (IIPER)

      1. Definitions: IIK and IIPER are parallel; IIK requires a valid K while IIPER requires a legitimate economic expectancy. The torts are only available against third-party meddlers, not against a party who breaches his own K or terminates his own economic relationship. The elements of the torts are (all five):

        1. Valid K or Economic Expectancy between P and a Third Party;

          1. IIK requires proof of a valid K.

    Texaco v. Pennzoil: An unsigned oral agreement was held to be a valid K under applicable state law.

  • IIPER requires proof of a valid economic expectation.
  • Mere hope for customers or economic profit is insufficient.

    1. Competitors in sporting events generally do not have a sufficient expectancy to establish the tort since the outcome in most events is too speculative (one court said that IIPER should not apply to interference with competitors in sporting competitions as a matter of public policy).
    2. CA has allowed an IIPER claim where a candidate for office was the victim of false campaign ads, even where he lost by a four-to-one margin.
  • Knowledge of Valid K or Economic Expectancy by D;

    1. For IIK, D must know of a valid K. This is generally understood to mean that D must know facts from which he should have concluded that a valid K existed.

      1. Texaco v. Pennzoil: It was irrelevant whether Texaco actually concluded Pennzoil had a K to buy Getty Oil stock based in part on an unsigned agreement. The relevant analysis was whether Texaco should have known, by the facts available to it, that the unsigned written agreement was nevertheless a valid oral K.
    2. For IIPER, D must know of a valid economic expectancy.
  • Intent by D to Interfere with the K or Economic Expectancy;

    1. Interference must be intentional.

      1. Restatement interprets intent to mean either purposeful interference or a substantial certainty that interference will occur.
      2. Some courts have required that intent be purposeful.
  • Interference Caused by D; and

    1. D must actually cause interference.
    2. Merely hiring an employee who has already breached a K with a different employer does not establish that D caused the employee to breach the K.
  • Damages to P;

    1. P must suffer damages.
    2. Economic damages, compensation for mental distress, and punitive damages (where malice is established) may be awarded.
  • Justifications for Interference

    1. SPLIT: Whether P or D bears the burden of proving whether D's conduct in interfering with a K or economic relations is justified or improper.

      1. Restatement takes no position
      2. An increasing number of courts are requiring P to show that D's conduct was improper.
    2. Justifications for either IIK and IIPER:

      1. Statements of truthful information;
      2. Honest advice within the scope of a request;
      3. Interference by a person responsible for the welfare of another while acting to protect that person's welfare (e.g., parent-child, attorney-client);
      4. Interference with a K that is illegal or violates public policy;
  • Interference by someone when protecting his or her own legally protected interests in good faith an by appropriate means; or

        1. Inducing breach of a K that unlawfully interferes with a legally protected interest or right.
      1. Justifications only for IIPER or at-will K:

        1. Fair and ethical competition; or
        2. Ethical action to protect one's financial interest.
      2. Restatement factors to help determine other instances when interference with prospective economic relations or contract is not improper:

        1. Nature of the actor's conduct;
        2. Actor's motive;
        3. Interests of the other with which the actor's conduct interferes;
        4. Interests sought to be advanced by the actor;
        5. Social interests in protecting the actor's freedom of action and the other's contractual interest;
        6. Proximity or remoteness of the actor's conduct to the interference; and
        7. Relations between the parties.

    1. Wrongful Termination of Employment Contract

      1. Definition: An employer may be liable for wrongful discharge, or wrongful termination, where its termination of an employee contravenes public policy.

        1. This tort is irrespective of whether the employee's termination violated an employment K.
      2. Termination Must Be for a Reason that Contradicts Public Policy (all four):

        1. Delineated in either constitutional or statutory provisions;
        2. "Public" in the sense that in inures to the benefit of the public rather than serving merely the interests of the individual;
        3. Well established at the time of the discharge; and
        4. Substantial and fundamental.
      3. Terminations Found to Violate Public Policy

        1. Age discrimination;
        2. Questioning and objecting to employer's making deductions from pay;
        3. Retaliation for alerting authorities to potential criminal conduct by employer;
        4. Retaliation for disclosing illegal, unethical, or unsafe practices like hazardous working conditions;
        5. Refusal to join employer in violating the law.
      4. Terminations Found Not to Violate Public Policy

        1. Informing a superior that one's current supervisor is being investigated by the FBI for embezzlement charges at the supervisor's former employer (serves employer's private interest rather than a public interest).
        2. Corporate officer's informing the board of directors that the employer may have been abusing its tax-exempt status (D did not link his duty to any explicit policy or clear mandate that was violated by his discharge).
        3. Retaliation for making critical remarks on an internal survey (tort would have converted an at-will employment relationship to one requiring good cause for termination).
    2. Tortious Breach of the Covenant of Good Faith and Fair Dealing

    In each K, there is an implied covenant of good faith and fair dealing to allow for the terms of the K to be interpreted fairly.

  • Occasionally, courts have held that breach of the implied covenant of good faith and fair dealing constitutes a tort as well as a breach of K.

    1. Damages for breach of K, economic loss, mental distress, and punitive damages (when malice is proven) are possible.
  • Generally limited to insurance companies that in bad faith intentionally deny or wrongfully reduce indemnification for a legitimate claim.

    1. Egan v. Mutual of Omaha: P received his first payment from D on the claim in issue only after a long delay and a personal visit to the claims office. Testimony was introduced that D's agent, although aware of P's good faith efforts to work, called P a fraud and told him that he sought benefits only because he did not want to return to work. When P expressed his concern regarding the need for money during the approaching Christmas season and offered to submit to examination by a physician of D's choice, the agent only laughed, reducing P to tears in the presence of his wife and child.
    2. Foley v. Interactive Data Corp.: CA Supreme Court refused to extend the tortious breach of the covenant of good faith and fair dealing to employment Ks by concluding that employers have economic incentives to treat employees fairly. Therefore, any bargaining disparity is not comparable to the insurance context.
  • Mini-Tort: Bad Faith Denial of the Existence of a Commercial K

    1. Distinction between disputing the existence of a K in good faith and denying it in bad faith is difficult.
    2. Allowed in very few Jxs (started in CA, but now reversed there).
    3. Montana extends tort to Ks where parties have special relationship.
  • Intentional Misrepresentation

    1. Definition: intentional or reckless misrepresentation which induces V's reliance and causes economic damages (six elements):

      1. Material Misrepresentation by D;

        1. Generally, the misrepresentation by D must be of a past or present material fact.

          1. Misrepresentation of a present intention is generally accepted as a misrepresentation of a present fact (e.g., a fraudulent promise when the promisor has no intention of keeping the promise is a misrepresentation; a broken promise made in good faith is not a misrepresentation).
          2. Misrepresentations of opinions are generally not actionable.

            1. Except for opinions by an expert to a non-expert, by a fiduciary, by D who misleads V as to the objectivity of his opinion or implies underlying factual misrepresentations by his opinion.
          3. Even a statement that is technically accurate can constitute a misrepresentation if it is intended to convey a factual misimpression.
          4. Physically disguising a defect may suffice.
          5. Misrepresentations of law (e.g., the existence of a statute or court decision) or opinions of the law by purported experts to non-experts can be actionable.
  • Misrepresentations must be material to be actionable (i.e., either a reasonable person would attach importance to it in determining his action in the relevant transaction or the maker of the statement knows or should know the person to whom the misrepresentation is addressed is likely to regard it as important).

      1. Traditionally, failure to disclose was not a basis for liability.

        1. Except where there is a duty to disclose:

          1. Fiduciaries must disclose material facts.
          2. An actor who initially misleads V (even innocently) or conceals information has a duty to disclose and correct the misimpression.
          3. Several courts have held that sellers in a transaction must disclose fundamental defects that the potential purchaser would not be likely to discover.
          4. Restatement concludes that there is an obligation to disclose facts basic to the transaction if D knows that V is about to enter it under a mistake as to them, and that V, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
    1. Requisite Scienter (Intent or Recklessness);

      1. D must know the misrepresentation is false or act with reckless disregard as to its truth of falsity.

        1. Recklessness = D made the representation consciously aware of his lack of knowledge about the representation's truth or falsity.
    2. Intent to Induce Reliance;

      1. D must intend the misrepresentation to be relied up as truthful by V.

        1. A joke not intended to be taken seriously is not actionable.
      2. V who relies on a misrepresentation must be the intended recipient or one to whom D had reason to expect the misrepresentation would be communicated and would be relied on in the same type of transaction.
    3. Causation;

      1. The misrepresentation must cause reliance.

        1. If V is not deceived, the tort is not actionable.
        2. Nader v. Allegheny Airlines: Nader was denied recovery for his claim based upon the failure of the airline to disclose its overbooking policy for confirmed airline reservations. The federal appeals court ultimately rejected Nader's recovery, as he had been "bumped" previously and was aware of the airline's practice.
      2. D's misrepresentation need not be the sole cause of V's deception, but it must be a substantial factor in misleading V.
      3. D is only liable for foreseeable damages.
    4. Justifiable Reliance;

      1. V's reliance must be justifiable.

        1. Reliance is not justifiable if the misrepresentation is immaterial to the transaction or a mere opinion (subject to exceptions above).
        2. Courts and Restatement look to the qualities and characteristics of the particular P and the circumstances of the particular case in determining

    when P's reliance may be unjustified even when the misrepresentation is a material fact.

    • A knowledgeable V who relies on an obvious falsity, despite his ability to easily recognize the falsity, is unjustified in his reliance.

    1. However, contributory or comparative negligence is not a defense to an intentional tort; therefore, a fool may be protected from intentional fraud.

    • Damages

    1. MAJ: Courts award pecuniary damages based on the "benefit of the bargain" if the misrepresentation had been true (like a breach of K).

      1. Misrepresented Value - Actual Value
    2. MIN: Only award for P's "out-of-pocket" losses (tries to restore P to his position before the tort.

      1. Price Paid - Actual Value
    3. Restatement allows P to choose between benefit of the bargain or out-of-pocket losses if he is the direct V; third-party Vs are limited to out-of-pocket losses.
    4. Most courts under either approach generally allow consequential damages, such as physical injuries and punitive damages (when malice is proven); damages for mental distress are ordinarily not awarded.

    • Defenses to Intentional Torts (D has burden of proving defense)

    1. Consent

      1. Definition: If the asserted V gives permission, what would otherwise be tortious is instead privileged.
      2. Express and Implied Manifestations of Consent

        1. Generally, consent is a valid defense when it is objectively manifested.

          1. If D's actual knowledge of P's lack of consent contradicts P's otherwise objective manifestation of consent, such knowledge controls.
        2. P can express consent in words or through gestures.
        3. P can imply consent when his actions reasonably convey consent (e.g., lack of objection to known trespasser) or by adhering to community custom (e.g., allowing a stranger to walk on private property to ring a door bell - unless a "no trespassing" sign is posted).
      3. Consent by Law

        1. Consent can be implied by law (e.g., consent to emergency medical procedures when unconscious - unless notice is given by wearing a bracelet or having medical orders near hospital bed).
      4. Invalidating Manifestations of Consent

        1. Incapacity

          1. A child, based on age, can consent to some things, but a legal guardian must consent for elective surgery. A controversial issue is whether an adolescent may consent without parental permission for an abortion.
          2. An insane or mentally retarded individual may not legally consent. The degree of incapacity required to invalidate consent varies with the activity in question.
          3. Incapacity may be the result of drug (including alcohol) ingestion.

    Incapacity that is not known or should not be reasonably known by a potential D should not invalidate a defense of consent.

  • Action Beyond Scope of Consent

    1. Consent is invalidated if the action goes beyond the consent manifested.

      1. A medical procedure without consent, even if performed competently, may constitute battery.
  • Fraud

    1. Consent is invalid if it is induced by fraudulent misrepresentations of an essential aspect of the interaction.

      1. Failure of a physician to inform the patient about the risks of medical treatment before procuring the patient's consent is most often treated as an issue of negligence.
  • Duress

    1. Consent procured under physical threat is invalid.

      1. Economic pressure, while coercive, does not negate consent.
      2. In very extreme instances, situational duress can negate consent.
  • Illegality

    1. MAJ: A person cannot consent to a criminal act.
    2. MIN/Restatement: A person can consent to a criminal act for tort purposes except where the criminal law is specifically designed to protect members of V's class.
  • Self-Defense

    1. Definition: Reasonable force can be used where one reasonably (objectively) and sincerely (subjectively) believes that such force is necessary to protect oneself from immediate harm.
    2. Threat Must Be Immediate

      1. Self-defense must be in response to an immediate threat of harm.

        1. Traditional C/L: Preemptive strikes are not permitted.
        2. MIN: Relaxes the immediacy requirement (e.g., in spousal abuse cases).
      2. Retaliation is not a basis for justification under self-defense.

        1. If the initial aggressor retreats, the victim may not pursue and attack.

          1. However, the retreat must be effectively conveyed to the victim or else he may continue to reasonably believe that self-defense is still justified.
          2. If the initial aggressor effectively conveys his retreat and is attacked, he may justifiably respond with self-defense.
    3. V's Response Must Be Reasonable

      1. Self-defense is only justified if V reasonably and sincerely believes that force is necessary to avoid an unlawful attack.

        1. An honest and reasonable mistake of fact about the need to use force will not result in liability for V even if he harms or kills an innocent (apparent) aggressor.
      2. Deadly force is only justified if V reasonably and honestly believes that he would suffer death or serious bodily injury from the attack.

        1. V may not respond to a non-deadly threat with deadly force even if that is the only avenue of response available (he must endure the non-deadly attack).
  • A threat to use deadly force (e.g., brandishing a weapon) is not deadly force if V does not intend to use it but only threaten with it.

      1. Obligation to Retreat from Deadly Force

        1. V need not retreat from a non-deadly threat and may reply in kind.
        2. MAJ: V need not retreat from a deadly threat, either, provided V has a legal right to be present or proceed.
        3. MIN/Restatement: V must retreat where deadly force would be required in self defense, except:

          1. V need not retreat from his dwelling, unless the aggressor also lives in the dwelling; and
          2. V need not retreat if he reasonably or correctly believes that such a retreat could not safely be accomplished.
    1. Defense of Others

      1. Definition: A person can use reasonable force to protect a third person from immediate unlawful physical harm.

        1. MAJ: The third party need not be a family or household member; he can be a stranger.
      2. Limited Privilege Rule

        1. Some courts allow privilege to use force in defense of a third person only when the person being defended was privileged to use self-defense.

          1. A reasonable, but incorrect, mistake of fact regarding whether the person being attacked is privileged to use self-defense does not relieve the intervener from liability.
      3. Restatement Rule

        1. Other courts have concluded that there is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes a third party is entitled to exercise self-defense.
    2. Defense and Recovery of Property

      1. Definition: An individual is privileged to use reasonable force to prevent a tort against her real or personal property. However, unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent party.
      2. Reasonable Force

        1. Only reasonable force may be exercised in protection of property.

          1. Deadly force is never reasonable to protect just mere property.
          2. Even slight force is unreasonable in defense of property if it is excessive (e.g., a property owner is not privileged to push a trespasser if a verbal request to leave his property would suffice).
        2. Force that appears reasonable at the time is privileged even if it later is found to be unnecessary.
      3. Force Against a Privileged Party

        1. Unlike in self-defense, if an actor makes a reasonable mistake about whether his victim is privileged to intrude or use property and uses force against the privileged victim, the actor is liable unless the victim intentionally or negligently led the actor to believe that the victim was not privileged.
      4. Defense of Habitation

    Restatement allows deadly force when needed to prevent any breaking and entry into a dwelling and possibly other buildings.

  • Current view = deadly force is not justified unless the intruder threatens the occupant's safety by committing or intending to commit a dangerous felony on the property.
  • A homeowner may not eject a non-threatening trespasser or invited guest when doing so would subject that person to serious physical harm.
  • Mechanical Devices

    1. Mechanical infliction of deadly force, such as by a spring gun, is not privileged unless such force would be justified if the owner of the device were inflicting the harm himself.
    2. Increasing authority/MPC = mechanical devices that are intended to inflict deadly force are never justifiable.
    3. Barbed wire fences and similar deterrents are not generally perceived as intended to inflict deadly force; therefore, if harm ensues, liability depends on whether the method of protecting the property under the circumstances was negligent.
  • Recovery of Personal Property

    1. An individual may use reasonable force to recover property when in hot pursuit of the wrongdoer.

      1. The actor acts at her peril, though, if she makes a reasonable mistake and uses force against an innocent party (unless such mistake was knowingly induced by the innocent party).
    2. MAJ: Merchant's privilege allows stores to use reasonable force to detain a person for reasonable periods of time to investigate possible thefts if the detention is within or near the immediate parameters of the store. Reasonable mistakes are allowed under this privilege.
  • Necessity

    1. Definition: Necessity is a defense that allows D to interfere with an innocent party's property in order to avoid a greater injury.
    2. Private Necessity

      1. In private necessity, D has an incomplete privilege to interfere with P's property rights to avoid a greater harm if D reasonably perceives an immediate need to appropriate P's property.

        1. D must compensate P for the interference.
        2. But P may not repel D's trespass or damage D's property.
      2. Privilege appears to apply even if P's property has great sentimental value but is objectively less valuable than D's property.
      3. Vincent v. Lake Erie Transp. Co.: D moored its ship to P's dock in a storm in order to avoid damage to the ship. The ship damaged the dock during the storm. D was privileged to use P's dock but was required to pay P for the damage done.
    3. Public Necessity

      1. Public necessity allows the appropriation or injury of an innocent party's property to avoid more substantial public harm.

        1. Unlike private necessity, there is no liability for inflicting private loss to protect the public (e.g., fire department could burn down a house and not allow the owner to retrieve his possessions in order to create a fire line to protect more homes from a spreading fire without incurring liability).
        2. Some courts are rebelling against providing full immunity against innocent victims.
    4. Intentional Injury and Killing

      1. There is sparse authority supporting the use of necessity to inflict personal injury or death to an innocent party to save more lives. Perhaps if a fair lottery were used, the killing would be justified.
      2. Restatement takes no view, but MPC allows use of necessity as a justification for intentional killing.
  • Negligence

    1. Overview

      1. To recover for negligence, P must establish each of the following elements by a preponderance of the evidence (i.e., more than 50%) to establish a prima facie case:

        1. Duty

          1. Legally recognized relationship between the parties.
        2. Standard of Conduct

          1. The required level of expected conduct.
        3. Breach of the Standard of Conduct

          1. Failure to meet the standard of care.
        4. Cause-in-Fact

          1. P's harm must have the required nexus to D's breach of the duty.
        5. Proximate Cause

          1. There are no policy reasons to relieve D from liability.
        6. Damages

          1. P suffered a cognizable injury.
    2. Standard of Conduct

      1. Negligence liability only flows where D's conduct has fallen below the relevant standard of care.

        1. Standard of care is the level of conduct demanded of a person so as to avoid liability for negligence.
      2. The Reasonable Person

        1. D must act as would a reasonably prudent person in the same or similar circumstances.

          1. Objective standard that looks at D's conduct (rather than his mental state) and compares it to an external standard of a reasonable person.
          2. Generally, D's physical conditions and whether he was acting in an emergency are considered but not his mental condition.
        2. The Characteristics of the Reasonable Person

          1. The reasonable person possesses those attributes that a jury decides represent the community norms or what the community standard should be.

            1. The reasonable person cannot be expected to be infallible, though.
          2. The reasonable person is no real person nor any member of the jury.

            1. It may be reversible error to instruct the jury to put themselves in D's position to determine reasonableness.
  • The reasonable person is expected to recognize the dangerousness of certain common items (fire, loaded guns, etc.).

      1. Reasonable person should be aware of what is evident, open, and apparent.
      2. The reasonable person has the general experience of the community (therefore, if D is new to the community, he must rise to its standard).
    1. Flexibility in the Reasonable Person Standard

      1. Emergency Doctrine

        1. Nearly all states permit the jury to consider in its determination of D's reasonableness evidence that D was acting under emergency conditions.

          1. The standard becomes a reasonable person in a similar emergency situation.
          2. Cordas v. Peerless Transp. Co.: A taxi driver that jumped out of his car when a gun-wielding thief got in was held not to be negligent even though the taxi ran onto the sidewalk and injured pedestrians.
        2. The emergency doctrine in unavailable where D's tortious conduct contributed to the creation of the emergency.
        3. D may be negligent for failure to anticipate an emergency (e.g., a business operator should anticipate a fire, a pool operator should anticipate a drowning, etc.)
      2. Physical Conditions

        1. D's own physical qualities may be taken into account by the jury in the breach determination.

          1. Jury should consider conduct expected of a reasonable person with D's height, loss of a limb, blindness, deafness, or other illness or disability.

            1. However, a person with a disability may be expected to take more care or avoid certain activities (e.g., a blind person should not drive).
          2. Totally involuntary actions (e.g., from an epileptic seizure) are not negligent acts where D had no warning.
        2. D's voluntary intoxication is disregarded - he is held to a reasonable sober person standard.

          1. Involuntary intoxication is typically treated as a physical ailment.
      3. Mental Conditions

        1. Mental disabilities are generally irrelevant for negligence purposes.
        2. MAJ: Insane, mentally deficient, stupid, low-intelligent, excitable, or accident-prone D is held to the standard of a sane reasonable person with normal intelligence.
        3. MIN: Allow some exceptions for unforeseen sudden attacks of mental illness or for negligent acts committed by mentally deficient patients against their paid caregivers.

          1. Breunig v. American Family Ins. Co.: P was allowed to recover from a motorist, D, who had a sudden insanity attack and tried to follow a light from God off the road thinking she could fly like Batman. D had notice of her delusional behavior before she got behind the wheel.
      4. Effect of Superior Abilities, Skills, or Knowledge

    Generally, D's experience and abilities (provided he is not a "professional") will not be considered in determining his standard of conduct - he will be held to the standard of a reasonable person under same or similar circumstances.

    1. However, his attention, perception, memory, knowledge, intelligence, and judgment will be considered in determining whether he has breached the standard of conduct.

      1. The reasonable person standard sets a minimum conduct level, but those possessing greater ability are expected to use it (a reasonable person is expected to use all of his faculties).

  • Gender Bias in the Reasonable Person Standard

    1. Historically, a "reasonable man" standard was used, which was supposed to be gender-neutral. This has been replaced with the less explicitly sexist "reasonable person" standard, but some argue that the standard continues to judge conduct by reference to men.

      1. Some argue for a "reasonable woman" standard, which has been adopted in some Title VII sexual harassment claims.
  • Child Standard of Care

    1. Children are not held to the adult reasonable person standard.
    2. MAJ: Children are held to a standard of conduct compared to other children of like age, experience, and intelligence under like circumstances.

      1. Objective because it compares the child to other children.
      2. Subjective because it considers D's experience and intelligence.
    3. MIN (old C/L): Child under 7 = conclusively presumed incapable of negligence, 7 to 14 = rebuttably presumed to be incapable of negligence, and over 14 = rebuttably presumed capable of negligence (some modern courts still hold that very young children lack capacity to be negligent).
    4. Exception: Adult Activities

      1. Children are required to meet the objective adult reasonable person standard of conduct when engaged in certain activities.

        1. MAJ/Restatement: Adult activities that require adult qualifications.
        2. MIN: Inherently dangerous activities.
      2. Examples of adult activities:

        1. Snowmobiling
        2. Driving motorized vehicles (cars, boats, motorcycles)
        3. SPLIT: Hunting

          1. Jxs that use adult activity test = hunting is not solely an adult activity; therefore child is held to child standard.
          2. Jxs that use inherently dangerous test = hunting is inherently dangerous; therefore, child is held to adult standard.
        4. Golf (Neumann v. Shlansky), although snow skiing has been held not to be an adult activity.
  • Professional Standard of Care

    1. Because of the specialized skill and training needed to be a doctor, lawyer, accountant, architect, or engineer, courts defer to the expertise of the profession to determine the appropriate standard of care.
  • Typically only professions that require post-graduate education qualify.

      1. Restatement includes vocations and trades such as electricians, plumbers, and pilots.
    1. Custom establishes the standard of care.

      1. Deviation from custom proves breach.
      2. Compliance with custom insulates D from negligence liability.
    2. Medical Malpractice

      1. A physician is held to the professional standard of care when acting in a professional capacity; he must use and possess knowledge and skill common to members of the profession in good standing - only requires physician to be of minimal competence (not average or highly skilled).

        1. Standard of care is set by custom (jury may not find that custom itself is unreasonable).
      2. Alternative Approaches to the Practice of Medicine

        1. D is protected from liability if his approach is a reputable or respectable treatment although there are other treatment alternatives, irrespective of the relative merits of each alternative.

          1. Doctors should obtain an express assumption of risk from their patients for new treatments that have not become established customs in order to avoid potential negligence claims.
      3. Proof Issues in Medical Malpractice

        1. Failure to cure or occurrence of complications does not prove malpractice (res ipsa loquitur is not of use to P because development of an inherent risk is not proof of negligence).
        2. Expert Witnesses

          1. Expert testimony helps establish the appropriate standard of care - the relevant medical custom - and D's breach of duty.

            1. Testimony regarding what the expert would have done himself is irrelevant.
          2. Expert need not practice the same type of medicine as D to testify, but he must have familiarity with the custom applicable to D's practice (or that his field of medicine has the same custom as D's field).
          3. Custom of Other Doctors in the Relevant Medical Community

            1. General Practitioners

              1. MAJ/Same or Similar Locality Rule: D is held to the standard of doctors engaged in a similar practices in similar localities, considering geographical location, size, and character of the community in general.
            2. Specialists

              1. MAJ: Specialists are held to a nation-wide standard.
        3. Common Knowledge Exception and Res Ipsa Loquitur

          1. Some medical malpractice does not require expert testimony: amputating the wrong limb, operating on the wrong organ, leaving a foreign object inside the patient.

    P may also use expert testimony to show that the harm she suffered does not usually occur except when there has been medical malpractice, thereby proving her case by res ipsa loquitur.

  • Informed Consent

    1. D's liability is predicated upon his failure to provide information to the patient and, therefore, failure to obtain P's informed consent for the procedure (not liability resulting from failing to diagnose or prescribing the wrong treatment).
    2. Battery

      1. D performs a substantially different procedure for that to which P agreed or where D significantly exceeds the scope of P's consent (e.g., operating on wrong or additional organs).

        1. Most lack of informed consent cases are based in negligence rather than battery (battery usually connotes a total lack of consent to the treatment rather than just a failure to fully inform).
        2. Differences between battery and negligence: battery does not require P to show actual harm as part of his prima facie case, there may be a difference S.O.L. for battery and negligence, D will usually be liable for punitive damages if battery is proven, and D's malpractice insurance may not cover battery.
    3. Negligence

      1. Usually occurs when an undisclosed complication with a procedure arises. P essentially says that he would have made a different decision regarding his course of treatment if he would have had all the necessary information.
      2. The Physician Rule (MAJ)

        1. Custom sets the standard of care (just like other medical malpractice cases) and expert testimony is required to establish the custom.

          1. P must show that it is the custom of doctors in good standing in the relevant medical community to disclose the risk which D did not disclose.
      3. The Patient Rule (MIN)

        1. D must disclose all material risks - those that would likely affect patients' medical decisions.

          1. Jurors determine when the reasonable doctor should inform regardless of current medical practice.
          2. Expert medical testimony is not required to determine when D should disclose the risk.
          3. SPLIT: Whether the materiality test should be objective or subjective. In most cases, there is little difference between what would be material to P and a reasonable person unless P has expressed an idiosyncratic fear or susceptibility.
        2. Cobbs v. Grant: a particularly unlucky P was unable to establish negligence by the surgeon-D based on evidence that slight, but inherent risks, materialized on several occasions. P's claim was based on failure to disclose these inherent risks. The court held that an adult in sound mind has the right, in exercise of control over his body, to determine whether or not to submit to lawful medical treatment. Material risks, such as possible death or serious bodily injury, should be disclosed while every minor or infrequently occurring risk need not be discussed. All customarily disclosed risks must also be disclosed.
      4. Causation

        1. Once P proves D breached the standard of conduct and failed to adequately inform P of the risks, P must prove that the failure to inform caused P harm. If P would have accepted the treatment even if he knew the risks, he has not been harmed.

          1. MAJ: Subjective standard is used - P himself would not have chosen the procedure if he were given full information.
          2. MIN: Objective standard - the reasonable person under similar circumstances would not have chosen the procedure if given the information.
      5. Justifications

        1. D may be justified in failing to disclose material risks under emergencies, where P had specifically requested that he not disclose them, or where disclosure might have a detrimental effect on the physical or psychological well-being of the patient (very narrow exception).
    4. Extensions of the Informed Consent Doctrine

      1. Some courts have held doctors liable for failure to disclose potentially negative consequences of declining a procedure.
      2. A patient may recover for lack of informed consent where his doctor failed to disclose research or economic interests in the procedure.
  • Attorney Malpractice

    1. Attorney-client relationship establishes duty.
    2. Custom of the profession sets the standard of care.

      1. Statewide or nationwide standard should be used. If attorney is a specialist, nationwide standard should be used.
    3. Breach of the duty is shown by the attorney's failure to meet the standard of care.
    4. Expert testimony (unless breach is patently obvious) establishes standard of care and breach.
    5. Causation: P must show by a preponderance of the evidence that but for his attorney's malpractice he would have won the underlying action (essentially there is a trial within a trial).
  • Other Professions

    1. Police officers have been held negligent where their training failed to meet standards established in similar localities.
    2. Clergy members can be subject to malpractice for negligent performance of their roles, especially for sexual misconduct with followers.
  • Breach of the Standard of Conduct

    1. Determination of Reasonableness

      1. The Risk Calculus
  • Negligence liability is only imposed where D engages in unreasonable risk creation - D creates risks that a reasonable person would not - that should have been foreseen at the time of D's conduct.

        1. Fairness and efficiency support premising liability on fault.
      1. The Hand formula: Liability depends on whether the burden (B) is less than the injury (L) multiplied by the probability (P) [If B < P*L, then D acted unreasonably]

        1. Probability

          1. Measures the likelihood of the harm-causing occurrence taking place (how foreseeable the harm-causing event is).
        2. Magnitude of the Loss

          1. Likely harm flowing from the injury-causing event when it occurs (what a reasonable person would foresee as the likely harm - not necessarily the actual harm that occurred).
        3. Burden of Avoidance

          1. Costs associated with avoiding the harm, alternatives and their feasibility, inconvenience to those involved, and the extent to which society values the relevant activity.

            1. All activities involve some risk taking - eliminating all risk is not the goal of negligence liability.
            2. Burdens are expected to be borne by D based on what a reasonable person could afford in light of the likelihood and magnitude of foreseeable losses.
    1. Role of Custom

      1. Custom = well-defined and consistent way of performing a certain activity, often among a particular trade or industry.
      2. Deviation from Custom

        1. If P can persuade the jury that there is a well established custom - widespread enough that D knew or should have known about it - the jury may consider D's deviation from custom in its determination of breach of duty.

          1. Deviation from custom does not itself prove breach of duty.

            1. D is still held to reasonable person standard, but deviation from custom is strong evidence that D did not act reasonably.
        2. P needs to show that the harm he suffered was the harm sought to be avoided by the custom (custom plays into a perception of probability of the harm in the Hand formula).
        3. D's argument that taking precautions (assuming the burden) would be too costly is weak when it is customary for those in his industry to take such precautions.
      3. Compliance with Custom

        1. Evidence of D's compliance with custom is usually admissible as evidence of D's lack of unreasonableness.

          1. Jury may find adherence to custom suggestive of a high burden of avoidance or a low probability of harm.

    D's compliance with custom does not establish his reasonableness, though.

    1. The jury may find that the custom itself is unreasonable.

  • Rules of Law

    1. The jury generally decides the reasonableness issue.
    2. The judge may decide as a matter of law in a directed verdict or judgment notwithstanding the verdict that, based on the evidence presented, no reasonable jury could find that D was unreasonable.

      1. If reasonable minds could disagree, the decision is left to the jury.
      2. Akins v. Glens Falls City School District: The court held that there was no negligence as a matter of law because the dimensions of D's backstop were appropriate at a baseball field.
  • Negligence Per Se Doctrine

    1. In certain situations, a criminal statute, administrative regulation, or municipal ordinance, may be used to set the standard of care in a negligence case.

      1. The statute relied upon does not mention civil liability; it is borrowed for a civil negligence standard.

        1. The legislative standard replaces the reasonable person standard.
      2. Negligence per se is not when a civil statute prescribes that a certain activity is negligent by law (this may be done so long as the law is constitutional).
    2. Factors Used for Determining the Propriety of Adopting a Statute as the Standard of Care

      1. Statute must provide the type of specific guidance that justifies its use by a civil court.
      2. Type of Harm Suffered by P

        1. The judge must decide whether the statute was designed to protect against the type of harm suffered by the plaintiff.

          1. The legislative history, the statute itself, or other indications of the type of harm the legislature intended to protect with the statute is examined.
      3. P in Protected Class

        1. Judge must also determine whether P falls into the class of persons designed to be protected by the statute.
      4. Licensing Statutes

        1. Most courts refuse to use a violation of a licensing statute as a basis for negligence per se because although the licensing statute may have been enacted to protect the public from actors who lack requisite skill, a showing that D lacked requisite skill is generally required.
    3. Effects of Non-Adoption and of Adoption of Statute

      1. Effects of Non-Adoption of a Statute

        1. If a judge refuses to use the statute as the standard for negligence, it does not preclude P from winning a negligence claim.

          1. The standard defaults to reasonable person.
          2. P may show D's violation of the statute of evidence that he did not act reasonably.
  • MIN of Jxs do not accept negligence per se and only allow violation of a statute to be used as evidence of unreasonableness.

        1. Effects of Adoption of the Statute and Statutory Violation

          1. The statutory requirements replace the reasonable person standard.
          2. All the jury must decide is whether D violated the statute.
          3. P must also prove the other elements of negligence: cause-in-fact, proximate cause, and damages.
      1. Role of Excuse

        1. Modern courts have recognized excuses to statutory violations in negligence cases (e.g., sudden emergency not of the actor's making, compliance would involve greater danger than violation, actor neither knows nor should know of the occasion for diligence, actor has some incapacity rendering the violation reasonable, or party is unable to comply after reasonable efforts).

          1. In practical effect, finding an excuse exculpates D because it shows the reasonableness of his conduct.
      2. Negligence Per Se and Children

        1. MAJ: Child standard of care generally applies instead of a statutory per se standard.

          1. Violation of the statute may be evidence of unreasonableness if a child of like age, intelligence, and experience would have obeyed the statute.
          2. If the child-D is involved in an adult activity, he would be held to the adult standard and negligence per se would become central to the case.
      3. Compliance with Statute (Reasonableness Per Se)

        1. The rule is well-settled that compliance with a statute is merely relevant evidence of reasonableness; compliance does not establish due care.

          1. The statute establishes the minimum acceptable conduct - not reasonable conduct.
    1. Proof of Breach: Res Ipsa Loquitur

      1. Where res ipsa loquitur applies, a jury may infer that D acted unreasonably without any other proof that D failed to use due care.

        1. Res ipsa loquitur is most important in cases where P is unable to make specific allegations about what D did wrong.
        2. From the happening of the accident, P seeks to establish that the harm-causing event was probably due to negligence and D was probably the culpable party.
        3. Traditional three elements must be proven by P by a preponderance of the evidence:

          1. It is an accident that normally does not happen without negligence;
          2. D had exclusive control of the instrumentality that caused the harm; and
          3. P was not at fault.
        4. Restatement Elements:

          1. The event is of a kind which ordinarily does not occur in the absence of negligence;
          2. Other responsible causes, including conduct of P and third persons, are sufficiently eliminated by the evidence; and
          3. The indicated negligence is within the scope of D's duty to P.

    Byrne v. Boadle: P was seriously injured when a barrel of flour fell on him. No witnesses testified as to anything done by D that could have led to the barrel falling. The trial court dismissed the action for lack of proof that D was the responsible party and or that he committed an unreasonable act. The Exchequer Court, in reversing the trial judge, noted that the barrel could not roll out of a warehouse without some negligence and to require P to call witnesses from the warehouse to prove negligence would be preposterous.

  • Probably Negligence

    1. P must persuade the jury that more likely than not the harm-causing event does not occur in the absence of negligence.

      1. D may proffer evidence to show other possible causes or that it exercised due care.
      2. Certain harms are generally clear enough to fit within res ipsa loquitur: two trains collide on the same track, bottles explode, rodents are cooked into food, medical malpractice where an instrument is left inside a person, or airline crashes.
  • Probably the D

    1. Instrument Under D's Exclusive Control

      1. Some courts will not allow res ipsa loquitur if anyone other than D may have come in contact with the harm-causing instrumentality.
      2. Generally, though, it is enough for P to get to a jury on res ipsa loquitur if he can provide evidence showing that others were probably not the responsible party and that D probably was, even though D did not have completely exclusive control over the harm-causing instrumentality.
      3. Other Jxs follow Restatement and have made it clear that P need only establish a likely nexus between P and the harm-causing instrumentality.

        1. Restatement states that exclusive control is not essential to a res ipsa loquitur case.
    2. Traditional/Restatement Rules: P must not have contributed to his own harm.

      1. MAJ: Because of comparative negligence and the control requirement, this element has lost much of its importance.
  • Outer Reaches of Res Ipsa Loquitur-Ybarra v. Spangard

    1. Although P need not prove the specific improper conduct under res ipsa loquitur, he generally must allege the responsible party.

      1. MIN: Ybarra v. Spangard: P's shoulder was injured while unconscious undergoing an appendectomy. P sued all those who might have been responsible for his injury, admitting that he knew neither how he was harmed nor by whom. The court allowed the suit to go forward against all medical professionals who may have come in contact with P, unless they could prove their innocence. No one on the team of medical professionals came forward to claim responsibility or disclose who was responsible (perhaps because of a culture where medical professionals do not testify against one another). The court assigned joint liability for the damages.
  • Pleading in the Alternative

    1. MAJ: Allow P to plead specific acts of negligence and res ipsa loquitur as an alternative theory.
  • MIN: Res ipsa loquitur may not be pled if specific allegations of negligent acts are made.

      1. Also, a court may deny res ipsa loquitur if P could have discovered the actual cause of an accident through investigation but chose not to.

    1. Cause-In-Fact

      1. "But For" Analysis

        1. MAJ/Traditional Test for Causation: But for D's culpable conduct or activity, P would not have been injured.

          1. D's negligence is not a "but for" cause if the outcome would have been the same even if D had not been negligent.
          2. Generally, P has the burden of establishing "but for" causation.

            1. By a preponderance of the evidence (more likely than not D was a "but for" cause of P's injury).
        2. There may be multiple "but for" causes if any of several actors could have avoided the injury by acting reasonably.
      2. Substantial Factor Test

        1. Used when redundant multiple causes (each sufficient alone to cause the harm) would preclude liability under the "but for" analysis.

          1. If D materially contributed to P's injury, he may be considered a cause-in-fact.
          2. Test eliminates liability for insignificant contributions to causation.
        2. Restatement and some Jxs utilize a substantial factor test to convey to the jury the requirement of both actual and legal causation in all cases.

          1. Restatement still requires that "but for" causation should be established, except in redundant cause cases.
        3. "Substantial Factor" is vague; some courts have used it beyond redundant cause cases (e.g., medical malpractice) where policy concerns justify relaxing the "but for" requirement.
      3. Incremental Loss

        1. P may recover damages for extra increments of pain, suffering, or harm caused by D's negligent conduct even if harm, death, or destruction were inevitable because of an external factor.
      4. Proof Problems in Cause-in-Fact

        1. Shifting the Burden of Proving Causation

          1. Courts may shift the burden of proof by requiring Ds to prove they were not the actual cause when each breached a duty of care to P and one was necessarily responsible for the actual cause (Ds are punished for their behavioral rather than causal conduct).

            1. Usually limited to where there is a small number of Ds that have all acted tortiously toward an innocent P at nearly the same time.
            2. Courts generally require that all wrongdoers be joined as Ds.
          2. Restatement holds that where the conduct of two or more actors is substantially and simultaneously tortious, but the cause of the harm is caused by only one of them, the burden is on each actor to prove that he has not caused the harm.
          3. Summers v. Tice: Two hunters negligently fired while P stood in the line of fire. A shotgun pellet hit P's eye, but it was impossible to establish which

    hunter had fired the pellet. Under a standard "but for" analysis, P would be unable to prove more likely than not that either of the Ds was the cause of the injury. Because each D had breached the duty of care to P, the court shifted the burden of proof to each D to prove that he was not the cause-in-fact. Since neither D could exculpate himself, they were treated as joint tortfeasors.

    • Market Share Liability (MIN)

    1. This theory extends and modifies the burden-shifting doctrine and pertains to suppliers of defective products where P cannot prove which brand of product he used.

      1. Unless D can prove it was not the cause-in-fact of P's injury, each D pays to each P a portion of P's damages equal to D's proportionate share of the market for the product.

        1. For example, if D1 had a 20% market share and D2 had a 15% market share of a dangerous product, D1 would pay 20% of each P's damages and D2 would pay 15% of each P's damages.
        2. Any percentage of market share that was not represented by the group of Ds would go uncompensated (i.e., liability is several only).
        3. Courts are SPLIT on what defines a market (national, local, etc.) thereby pulling in Ds that could not have possibly harmed a specific D. This theory is based on imposing liability because of D's tortious conduct rather than because of P's harm caused.
    2. Sindell v. Abbott: Daughters of women who used the drug DES during pregnancy developed various reproductive diseases, including ovarian cancer, years later. The diseases could be attributed to the drug, but in many instances, P could not establish which brand of DES her mother used. The court held that once P established D's culpability - that D had manufactured and marketed a dangerous drug - D had the burden of proving that it was not the cause-in-fact of P's harm. If D could not disprove its culpability, it was responsible for its share of the DES market at the time of the mother's exposure to the product. Ps were required to join enough drug companies as Ds so that a substantial share of the market was represented (this is a questionable requirement because each D is only severally liable for its percentage of the damages).

      1. The court rejected the "enterprise liability doctrine" of Hall v. DuPont because all DES manufacturers (over 200) were not represented as Ds and the DES industry was not governed by a trade association that promulgated standards. Therefore, the court found that Ds were not "acting in concert" (akin to conspiracy), which could have made each liable for the tortious acts of the others.
    3. Market share liability has not been used widely outside of DES cases; when there are too many other possible causes of P's harm or there is a long time delay between exposure and harm, proving a causal connection becomes more difficult.

    • Medical Uncertainty Cases

    1. MAJ/Traditional View: P must prove that D's conduct was a "but for" cause of D's injury.

    Under this approach, courts do not allow recovery for malpractice - no matter how blatant - unless P would have had more than a 50% chance of survival or recovery in the absence of D's negligence.

  • MIN (Substantial Factor Test): A reduction in the chance of survival may be sufficient evidence to allow a jury to determine that D's conduct was a substantial factor in causing P's harm even though it otherwise more likely than not that P's harm would occur.

    1. Some courts may give the fact-finder discretion to reduce an award in a case like this though it is not required.
    2. Herskovits v. Group Health: The court allowed P to recover in a wrongful death against a physician whose malpractice significantly reduced P's chance of survival, despite evidence indicating that P would have most likely died even if D had not been negligent. Evidence showed that D's conduct reduced the patient's chance of survival from 39% to 25%. The court relaxed causation requirements by not requiring proof that malpractice was the "but for" cause of the patient's premature death.
  • MIN / Modern Trend: Loss of Opportunity to Survive

    1. "But for" causation is not relaxed, but instead loss of a substantial chance is perceived as a cognizable damage for which V may be compensated.

      1. The loss of the opportunity would be valued as a percentage of the total damage suffered.
      2. Usually only used when P would recover nothing at all (e.g., if P's chance of survival fell from 55% to 45% because of D's conduct, D would satisfy the "but for" test and P would be entitled to full recovery rather than just 10% recovery under the lost opportunity test).
  • Statistical Evidence of Causation

    1. Courts are reluctant to conclude that D's action was the cause of P's harm based on a statistical probability absent some other proof of causation.

      1. If the harm has few causes other than D's action, the case is stronger that D should be held liable.

        1. Statistical evidence is particularly strong in medical cases because of the abundance of research.
    2. Courts are reluctant to hold D liable for a percentage of P's harm based on the statistical likelihood that D's conduct caused P's harm, especially in toxic tort cases.
  • Toxic Torts

    1. P must prove that he was exposed to a toxic substance, that D was responsible for P's exposure, and that the toxic substance caused P's harm.

      1. Generally P relies on expert testimony, which is admissible if it consists of scientific knowledge and assists the trier of fact in understanding or determining the relevant issue.

        1. Suggestiveness of a cause/effect relationship is not sufficient to meet evidentiary standards.
    2. Ayers v. Twp. of Jackson: Ps were not able to recover for mere exposure to toxic substances in the absence of present injury (the court did not recognize a cause of action for "enhanced risk of illness"), but Ps were able to recover the costs of medical monitoring.
  • Duty

    1. Duty establishes that there is a legally recognized relationship between D and P that obligates D to act or refrain from acting in a certain manner toward P.
    2. Duty to the Foreseeable Plaintiff

      1. MAJ: Absent some other basis for limiting the scope of duty, D owes a duty to foreseeable Vs for foreseeable harm.
      2. Palsgraf v. Long Island R.R.: P was standing on D's railroad platform waiting for a train when she was injured by an explosion that caused a nearby scale to fall on her. The explosion was caused when a railroad guard dislodged a passenger's package while attempting to help the passenger board a moving train. The package, only 15 inches long and covered by newspaper, contained fireworks which caused the explosion that knocked the scale onto P. The court found that D owed P no legal duty because P was not a foreseeable V of the railroad's apparent negligent handling of the package. P was nowhere near the package and there was no reason for the guards to believe that the package contained fireworks or other explosives; therefore, P was outside any "zone of risk"
      3. Duty versus Proximate Cause

        1. Both limit D's liability for negligence.
        2. Duty focuses on to whom D owes an obligation to conform to a prescribed standard of reasonable conduct.
        3. Proximate cause limits the type or kind of harm D can be held liable for.
        4. Duty is generally determined by the court as a matter of law, while proximate cause is a question of fact.
      4. Duty to Rescuers: Generally rescuers who voluntarily expose themselves to risk are considered foreseeable Ps, even if they were not initially within the zone of danger.
      5. MIN (Palsgraf dissent): Everyone owes the world at large a duty to refrain from acts that may unreasonably threaten safety of others. Limitations on D's liability are imposed by proximate cause.
  • Proximate Cause

    1. Generally, courts require that in addition to showing that D's conduct breached a duty of care to P and was the cause-in-fact of P's injuries, P must prove that D was the proximate, or legal, cause of P's injuries to establish D's responsibility.

      1. Courts preclude liability if D's conduct and P's injury are to attenuated, remote, or freakish to justify imposing responsibility on D.
      2. Generally, the point of proximate cause is a policy question rather than a mechanical application of a rule. Jury usually decides, subject to the court's ability to rule as a matter of law that no reasonable jury could decide differently.

        1. Courts consider the foreseeability of the harm, intervening actors, acts of God, general societal and economic policy goals, the physical proximity of the harm to D's activity, morally who most fairly should bear the loss.

          1. By holding D responsible for all possible harms, he would be over-deterred from taking reasonable risks that would better society by efficiently enhancing productivity.
  • Proximate cause is generally not an issue in intentional torts because D's intent must be proven, including application of the transferred intent doctrine of the five historical trespass torts. Courts generally are willing to find proximate cause when D acted intentionally.

    1. Proximate Cause Tests

      1. Foreseeability Test

        1. The leading test for proximate cause focuses on whether D should have reasonably foreseen, as a risk of his conduct, the general consequences or type of harm suffered by P.

          1. Result or type of harm must be reasonably foreseeable - the extent and precise manner in which the harm occurs need not be foreseeable.
          2. There must not be a superceding intervening force: human, animal, mechanical, or natural force that occurs after D's conduct which causes P's injury and is sufficient to relieve D of liability.
        2. Wagon Mound and Reasonably Foreseeable Consequences

          1. MAJ: Most courts require a finding of reasonable foreseeability of consequent damages.
          2. Wagon Mound I: P's dock was burned as a result of oil negligently spilled by D's ship. This oil joined with the hot molten metal that was released into the water by P's employees while they were soldering the dock. The court held that because D could not reasonably have been expected to know that the spilled oil was capable of being set on fire in the water, the court ruled for D since the consequence was not reasonably foreseeable.
          3. Wagon Mound II: The owner of another ship destroyed in the fire sued the same D for negligent discharge of oil. This P argued that the resulting fire was a foreseeable risk from the oil spill, and the court accepted the claim. The court emphasized that, while the risk of fire was relatively remote, the foreseeability required need not be great when the risk, if manifested, would be significant and there were no justification to incur the risk. The court concluded that if a reasonable man would have realized and foreseen or prevented the risk, then it must follow that D is liable.
        3. Type of Harm versus Manner and Extent

          1. While the consequence or type of harm must be reasonably foreseeable, the precise manner in which it occurs and the extent of the harm need not be foreseeable.

            1. D would be responsible for keeping an open flame near a gas outlet, where one could reasonably foresee an explosion, even though one could not reasonably foresee that a rat would ignite its fur and cause the explosion.
            2. All foreseeable Ps (to whom D owes a duty) may recover for the type of foreseeable harm caused, even though the extent of the harm was not foreseeable (e.g., a fire got out of control).
        4. Superceding Intervening Forces

          1. The foreseeability test is limited by the additional requirement that there be no superseding intervening force.

    Superseding intervening forces are new forces which join with D's negligence to injure P.

  • In order to be superseding (and thus preclude D's liability), they generally must be highly improbable and extraordinarily unexpected.
  • Independent versus Dependent Intervening Forces

    1. Dependent forces are stimulated by D's conduct while independent forces are not.
    2. Dependent forces are less likely to be superseding intervening forces unless they are extremely abnormal.
    3. Independent forces are more likely to be superseding intervening forces unless they are foreseeable.
  • Intentional or criminal acts by third parties are more likely to be superseding intervening forces unless they are extremely foreseeable (e.g., the negligence takes place in a high crime area exposing V to criminal activity that should have been expected).

    1. Hamilton v. Accu-Tek: The court held that criminal use of handguns was not a superseding intervening cause and allowed Ps to sue gun manufacturers for harms caused by the guns.
  • Unlikely, but nevertheless foreseeable, possible contingencies are often not found to be superseding intervening forces.

    1. Negligent acts of V's medical providers or ambulance drivers are not generally superseding intervening forces unless such acts are extremely abnormal.
  • Acts of nature may be superseding unless it should have been anticipated (even if it is extraordinarily strong).

    1. Restatement would not find a natural occurrence to be superseding unless the operation of the force is extraordinary and the harm resulting from it is a different kind of harm the likelihood of which made the actor's conduct negligent.
  • "Eggshell-Plaintiff" Personal Injury Rule

    1. Only the general consequences and type of harm need to be foreseeable - not the extent of that harm.
    2. The P generally takes the D as he finds him and is liable for all of D's personal injuries (regardless of the type suffered) if any personal injury were foreseeable.
    3. SPLIT: Whether psychological sensitivity is also covered.

      1. Steinhauser v. Hertz: Court held that a 14-year-old girl with a predisposition to schizophrenia could recover when a slight automobile accident causing no bodily injuries was the precipitating factor in causing her schizophrenia.
    4. Damages for Eggshell-Plaintiffs

      1. In measuring damages for personal injury to an eggshell-plaintiff, life expectancy and prospective health of P are taken into account.
  • Direct Causation Test

    1. No longer accepted by modern courts.
  • P need not establish foreseeability of the type of harm but must instead prove the absence of any intervening forces.

        1. In re Poemis: Servant of D who leased a yacht dropped a plank creating a spark that caused petrol flames to ignite and the ship to explode. The explosion was deemed unforeseeable, but D's servant's actions were the direct cause of the explosion because no intervening force existed.

      1. "Practical Politics" and "Rough Sense of Justice" Test

        1. MIN: Some courts will agree with Andrew's dissent in Palsgraf and will depart from the reasonable foreseeability test.

          1. These courts rely on public policy considerations, fairness, and justice to determine proximate cause rather than logic or a mechanical test.
          2. Andrew's test considers foreseeability not from D's perspective before the accident but from the perspective of what would appear to be the natural results of a negligent act looking back to the accident.
        2. Kinsman I: P was able to recover for lost property when D's boat became unmoored, collided with another boat, and set it adrift. The two boats collided with a drawbridge, clogged the river with ice and caused a flood that damaged P's property.
        3. Kinsman II: The court did not extend D's liability to economic damages suffered by ships that had to navigate around the clogged drawbridge.
      2. Restatement Test (MIN)

        1. An actor's negligent conduct is the legal cause if:

          1. His conduct is a substantial factor in bringing about the harm; and
          2. There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm.
        2. "Substantial factor" encompasses both proximate cause and cause-in-fact.
        3. Restatement, like Andrew's dissent, considers proximate cause in light of "prevision" of what subsequently occurred.

    1. Limitations on Duty

      1. Failure to Act (Nonfeasance)

        1. An actor typically is liable for affirmative acts that create an unreasonable risk of harm but not for nonfeasance.

          1. Misfeasance by commission or omission generally gives rise to a duty.

            1. Misfeasance often consists of affirmative acts of misconduct - doing something that a reasonable person would not do (e.g., firing a gun in a crowded area).
            2. Misfeasance can also be shown by a negligent omission - failing to do something that a reasonable person would do while engaged in other activity (e.g., paying attention while driving).
          2. An actor does not generally have a duty to act to prevent or alleviate another's harm except in certain circumstances:

            1. When a special relationship (including a contractual relationship) exists;
            2. When D, or an instrument under his control, has created the peril; or
            3. When D voluntarily undertakes to acts and puts P in a worse position.

    Some states and foreign countries have enacted criminal laws that punish those who do not aid a person in peril if doing so would not put the actor in danger.

  • Duty to Rescue

    1. Generally, a person does not have a duty to aid another, even when the person could render aid with little risk or effort, except in these situations:

      1. Creating Peril

        1. D has a duty to act when the need for rescue arises because of D's negligence.
        2. This exception has been extended to situations where D's fault-free conduct leads to a need for rescue or where P's negligence leads to the need to rescue if D is in any way connected to the situation.

          1. Modern courts (but not traditional C/L) may find D liable for not correcting or warning of danger created by his conduct even if his initial conduct was non-negligent.
      2. Special Relationships

        1. Courts have imposed a duty to rescue when justified by a special relationship.

          1. Historically, these relationships were narrowly construed, applying only where P clearly entrusted his safety to D (e.g., common carrier-passenger, innkeeper-guest, ship captain-seaman, parent-child, land possessor-invitee).
          2. These relationships have been expanded to likely include: spouse-spouse, employer-employee, school-student, and business-customer.
      3. Undertaking to Act in Reliance

        1. While people generally have no obligation to intervene, once they do, a duty arises.

          1. Traditional View: Once a person undertakes to rescue, he must no leave V in a worse position.
          2. Modern View: Rescuer is obligated to act reasonably once he has begun to act.
          3. A duty will be found where D's unfinished rescue efforts have dissuaded others from helping, or where D has prevented others from assisting.
        2. Virtually all Jxs protect rescuers from potential liability through Good Samaritan statutes, which insulate rescuers from liability for ordinary negligence.
        3. Tort law treats all rescue efforts as per se foreseeable, so if the rescuer is injured rescuing V when V negligently placed himself in a position requiring rescue, V is liable.
        4. Once D undertakes an act (such as giving a warning) that P relies upon for his safety, D may be obligated to continue such act.
      4. K Obligation

        1. A rescue obligation can arise from a contract (e.g., babysitter, lifeguard).
  • SPLIT: Whether a gratuitous promise, without more, gives rise to a duty.

      1. A promise creating reliance may give rise to a tort duty.
      2. Even where there is a contractual obligation to repair, courts are divided about whether breach of this contractual provision leading to personal injury gives rise to a tort duty.

    1. Duty to Control and Protect

      1. Generally, a person is not legally obligated to control the conduct of another or to take steps to protect another from harm except when a special relationship exists (between D and P or D and a third party).
      2. Duty to Control

        1. While generally a person had no obligation to control another person's conduct to prevent harm to a third person, exceptions arise if there is a special relationship.

          1. The relationships giving rise to duty to control require some relationship between D and the third party, combined with knowledge (actual or constructive) of the need for control.

            1. If D takes possession of dangerous persons (e.g., criminals or mentally ill) and negligently permits them to escape.
            2. Although a child's parents are not vicariously liable for their child's torts (unless statutorily responsible), they are responsible for supervising their child and may be liable when the child attacks another and the parents knew or should have known the child's tendency toward violence.

              1. Wells v. Hickman: A mother sued the mother and grandparents of a child who killed her son for wrongful death claiming that Ds were aware or should have been aware of the child's propensity toward violence. The court ruled that duty is limited to those circumstances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Here, the mother could not reasonably foresee the child's homicidal tendencies based on his history of cruelty to animals and suicide threats. Also, the grandparents did not have a duty to protect the decedent because they were unaware that he was in their backyard.
        2. For there to be at duty to control, D must be in a position to exercise control over the third party for the protection of P.
        3. Tarasoff v. Regents of Univ. of Calif.: Ps asserted that D, a therapist, had a duty to warn them or their daughter of death threats against the daughter made by the psychotherapist's patient. The court held that a psychotherapist has an obligation to take reasonable steps to protect a third party where the therapist knows, or based on professional standards, should know that the therapist's patient presents a serious risk of physical harm to the third party.

          1. Some Jxs apply Tarasoff warnings to foreseeable Vs; others limit it to readily identifiable Vs.

    Some Jxs do not apply it to threats of property damage.

  • Suppliers of Liquor

    1. At C/L, neither commercial establishments nor social hosts that supplied liquor were liable to those injured by those to whom they served alcohol.
    2. Courts and legislatures have imposed duties on commercial establishments that serve alcohol to prevent intoxicated patrons from driving home drunk.

      1. "Dram shop:" Usually a duty applies only when the patron is visibly intoxicated or is a minor.
    3. MIN: Some courts have extended the duty to social hosts who directly serve guests whom the host knows is beyond the point of intoxication and plans to drive home.

      1. Legislatures typically limit or eliminate court-imposed duties on social hosts.
  • Negligent Entrustment

    1. D's liability is premised on misfeasance: supplying a potentially dangerous instrumentality (e.g., a gun or car) to a person D knows or should know is not fit to handle it.

      1. Courts have typically required a close connection between D's negligent act and the harm and have limited negligent entrustment cases to situations where D has the right to control the instrumentality causing P's harm.

        1. Some courts have extended this doctrine to find one liable who supplies a third party with money to purchase a potentially dangerous chattel.
  • Duty to Protect

    1. Generally, there is no duty to protect another from harm, except:

      1. Where D and P have a relationship in which P has ceded the ability for self-protection, in which case D has a duty to make reasonable efforts to protect P (e.g., jailor-prisoner, innkeeper-guest, parent-child, school-student, hospital-patient, common carrier-passenger, employer-employee); or
      2. Where D undertakes to protect P and P relies on that protection.
    2. Landlord Duty to Protect Tenants

      1. A landlord may have a duty to protect his tenants in common areas of an apartment building where criminal acts are common and the landlord previously provided security.
    3. Business Duty to Protect Customers

      1. The business-patron relationship is rarely enough to establish duty in the context of third-party assaults; courts typically require a high degree of foreseeability to establish a duty.

        1. Some courts require proof of prior, similar incidents.
        2. Other courts rely on the totality of the circumstances standard of foreseeability.
    4. Police Duty to Protect and Public Duty Doctrine
  • Governmental immunity may limit duty, and a governmental actor performing improperly is not usually liable to individuals harmed because any duty owed is limited to the public at large rather than to any specific individual.

        1. Generally, a governmental official may be liable for negligently executing policy but not for negligently making policy decisions.
      1. Police Duty

        1. MAJ: Police departments are typically not liable for failing to protect individual citizens.
        2. Most courts limit finding a duty to situations where police undertook to act and created reliance, enlisted the aid of P, or increased the risk of harm to P.
        3. Some Ps have asserted that constitutional equal protection rights and civil rights statutes impose a duty (however, the Supreme Court has held that due process does not impose a duty to protect).
        4. Supervisory responsibility over other police officers can lead to civil and criminal liability if the supervising officers unreasonably fail to intervene.
      2. Public Duty Doctrine in Other Contexts

        1. Many courts have held fire departments immune from liability for negligently fighting or failing to respond to a specific fire.
        2. Courts are reluctant to overrule legislative or executive decisions about public policy decisions regarding allocation of resources (e.g., in mass transit and public schools)

    1. Negligent Infliction of Emotional Distress (NIED)

      1. Direct Actions

        1. P sues for emotional harm occasioned by D's tortious conduct directed toward P.
        2. MIN: Physical Impact Rule

          1. Very few, if any states, retain the historic rule that V must suffer physical contact by D's negligence to recover for mental distress.
          2. Courts allow mental distress recovery as a parasitic injury so long as V suffered any impact - the impact need not itself cause the physical injury.

            1. Even slight impact like electric shock or x-rays have been sufficient.
        3. MAJ: Risk of Physical Impact Rule - The Zone of Danger

          1. P may recover for mental distress if P was at risk of physical impact.

            1. MAJ: P must suffer physical symptoms of mental distress.

              1. Heart attacks, miscarriages, panic attacks accompanied by abdominal pain, and stomach troubles have sufficed.
              2. Crying, sleeplessness, increased migraine headaches, and upset feelings have failed to suffice.
        4. MIN: Special Cases

          1. Ps have been able to recover for mental distress in the following cases (without proving physical manifestations of such distress):

            1. Negligently handling a close relative's corpse.
            2. Erroneous notification of a close relative's death.

    Generally, courts do not allow for recovery for mental distress resulting from destruction of chattel.

    1. However, some courts allow recovery if the property as particular sentimental value and D should have foreseen such distress.

  • MIN: Broadest Direct Recovery

    1. A few Jxs permit recovery for NIED for all foreseeable Vs who suffer severe emotional distress (both direct and bystanders).

      1. Molien: P was able to recover when hospital erroneously informed P's wife that she had syphilis and that he should be tested. The court held that D should be liable for reasonably foreseeable mental distress regardless of physical manifestations - but such mental distress must be severe (based on objective reasonable man standard).

        1. Some courts have restricted this liability to only cases where P and D have a special relationship.
    2. No Jx allows recovery to all foreseeable Vs.

      1. Hawaii allowed recovery to P who watched his house get flooded but did not allow recovery to a grandfather in California that had a heart attack upon hearing of daughter and granddaughter's death in an accident caused by D.
  • Recovery for Fear of Future Physical Harm

    1. SPLIT: Whether emotional distress damages should be awarded for fear of future physical harm.
    2. Toxic Torts and Defective Products

      1. MAJ: Courts are wary of permitting recovery due to the difficulty of measuring damages, potentially crushing liability, and serious proof problems such as possibility of multiple causes.

        1. Potter v. Firestone: Absent physical injury, recovery of damages for fear of cancer in a negligence action is limited to cases where P proves that it is probable that P will develop cancer in the future due to toxic exposure.
    3. HIV / Communicable Diseases

      1. MAJ: Courts require actual exposure to HIV for P to recover for his emotional distress, though some apply a less exacting standard (would a reasonable person experience mental distress).
  • Bystander Actions

    1. P sues for emotional harm suffered by P as a result of physical harm caused by D to someone other than P.

      1. MAJ: A bystander action is a derivative action of the direct V's claim against D; therefore, D must have been negligent in his conduct toward the direct V for P to recover (contributory and comparative negligence of V and P are considered).
    2. Slight MAJ/Restatement: Zone of Danger

      1. P can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious bodily injury to another (generally a close relative) when he is in a position to fear for his own safety.
  • MAJ: P may recover regardless of whether mental distress is due to fear over one's own safety or harm to another.

        1. MAJ/Restatement: P must suffer physical manifestations of mental distress.
      1. Substantial MIN: Dillon v. Legg

        1. P can recover if he is a bystander to an accident and not physically at risk himself if:

          1. P is Physically Near the Scene of the Accident

            1. P has been able to recover upon witnessing the aftermath of an accident in a hospital, not at the scene.
          2. P has Contemporaneous Sensory Perception of the Accident

            1. Some courts have allowed P to recover when he hears but does not see the accident or comes immediately after the accident and witnesses the aftermath.
            2. P has been denied recovery when witnessing an accident but being unaware that V is dead (thinking that V is sleeping), or upon hearing an accident but not knowing at that time that it was a death-inflicting injury.
          3. P is Closely Related to V

            1. Some courts insist on legal marriage, parental, child, or sibling relationship.
        2. MAJ: P must suffer physical manifestations of mental distress.

    1. Wrongful Death

      1. Wrongful death damages may be claimed when V is killed by an intentional tort, strict liability, or by negligence.

        1. Wrongful death claims are in addition to NIED, survival actions, and loss of consortium claims.
        2. MAJ: Wrongful death is a derivative claim to V's tort against D. Therefore, contributory/comparative negligence of V or P in bringing about V's death may eliminate/reduce an award for wrongful death.
      2. Early C/L did not allow recovery by anyone when D tortiously killed V, but now, all Jxs have enacted wrongful death statutes.

        1. Who May Recover

          1. An action may be brought only by those permitted to do so by the Jx's wrongful death statute.
          2. A surviving spouse, parents, and children are typically permitted to bring an action.

            1. Statute may exclude long-time partners, close friends, non-adopted children.
            2. SPLIT: Whether an adopted child may bring a claim for the wrongful death of the child's biological parent.
            3. SPLIT: Whether parents can bring an action for the wrongful death of an unborn (viable or unviable) fetus.
            4. MIN: Compensation allowed based on decreased value of V's estate due to his premature death.
        2. Recoverable Damages

    MAJ: Only pecuniary losses that P would have received from V.

    1. P must prove loss - this considers: life expectancy of V, life expectancy of P, V's income potential, education, career path, generosity, P's need, the value of services performed by V less amounts P would have provided to V.

  • MIN: Pecuniary loss that P would have received from V + consortium-type losses (e.g., companionship, affection).
  • Small MIN: Pecuniary loss + consortium loss + P's grief, sorrow, and upset.
  • Survival Actions

    1. Survival statutes allow heirs of a decedent to inherit his on-going or potential tort actions and pursue those claims in court (neither death of P nor D generally ends most tort actions).

      1. MAJ: Property torts survive.

        1. Some Jxs allow personal injury torts to survive.

          1. MAJ: Economic consequences (medial bills + lost wages) + pain and suffering survive.
          2. MIN: Only allow economic consequences of personal injury (not pain and suffering) - P will usually try to affix punitive damages to the property claim, though.

            1. CA: Only property torts survive and no punitive damages may be awarded in wrongful death cases unless felonious homicide is proven. Therefore, O. J. Simpson was sued for destruction of Simpson/Goldman's property during the time between attack and death, which could survive and attract punitive damages of $25mm.
        2. Some Jxs exclude all intangible torts, such as mental distress or pain and suffering.
    2. A tort action is devisable by will, so an heir may bring or continue the survival action (generally the administrator, executor, or personal representative of the decedent brings the claim).
    3. The claim must be viable to survive (if V could not bring it himself because of S.O.L. or some other reason, his heirs cannot bring it).
    4. Survival action for V's personal injury that results in death may be brought in addition to NIED, wrongful death, and loss of consortium actions.

      1. Personal injury survival actions are not available if V dies instantaneously from the injury.
  • Loss of Consortium and Society

    1. Loss of consortium damages may be claimed when V is killed by an intentional tort, strict liability, or by negligence.

      1. Loss of consortium may be claimed for the period of time between injury and death of V, wrongful death may be claimed for the death, and NIED and survival actions may also be brought.
      2. MAJ: Loss of consortium is a derivative action, so D's conduct must be tortious and contributory/comparative negligence of V or P eliminates or reduces the award.
  • Loss of consortium applies when D inflicts serious (mental or physical) injury (rather than death) to V, a close relative of P.

      1. Early C/L: Allowed husband to recover for lost services of his wife (like loss of an asset): household services, sexual services, companionship, comfort, etc.
      2. MAJ: Either spouse may recover under loss of consortium for loss companionship, affection, and society when the other spouse in injured by D.

        1. P must prove loss - that D's tortious conduct harmed an otherwise fulfilling and strong relationship.
        2. MAJ: Loss of consortium only applies to spouses (not children-parent, parent-children, or between non-married partners) on the basis of loss of sexual services.

          1. MIN: Allow children/parents to claim loss of consortium since children/parents may recover for wrongful death if V dies instead of just being injured.
          2. Non-married partners (gay or straight) are barred from recovery.
      3. MAJ: Allow recovery for physical or mental injury that directly disrupts the relationship between V and P.
    1. Wrongful Life, Wrongful Birth, and Wrongful Conception

      1. These torts do not address whether a child, after birth, may bring a tort action for harm done to it while it was a fetus. This is generally a valid claim.

        1. If the fetus dies before birth, an issue arises whether it is considered a person under the state's wrongful death statute.
      2. In the following torts, if D was non-negligent, the child would not be born at all.
      3. Wrongful Conception

        1. Parents sue D for negligently causing the birth of an unwanted, but healthy, child.

          1. MAJ: Allow recovery of medical costs and pain and suffering associated with the failed procedure, any corrective procedure, pregnancy, and the birth plus mother's lost wages and father's loss of consortium.

            1. MIN: Also add full costs of raising the child to majority.

              1. Some courts will only allow recovery of child rearing costs if parents can prove that they intended not to have children because of financial concerns.
            2. Some courts and Restatement require damage awards to be mitigated by emotional gains of having a healthy child.
        2. Most courts will not allow evidence that P failed to mitigate damages by keeping the child to full term rather than aborting or putting the child up for adoption.
      4. Wrongful Birth

        1. Parents sue D because his negligent genetic counseling or misdiagnosis about the fetus' condition caused the birth of an unwanted child with a health disability.

          1. MAJ: Allow recovery for the extraordinary expenses associated with the birth defect.

    Generally, P does not claim that the child was unwanted, so child-rearing expenses are not recoverable (if conception was unwanted, too, P can claim damages under wrongful conception).

  • Some courts allow recovery of emotional distress occasioned by having a child with a disability.
  • Some courts require a reduced damage award because of emotional gain from having a child (depending on its condition).
  • P must prove that but for D's negligence, she would have terminated the pregnancy (if negligence occurred after conception) or elected not to conceive.
  • Wrongful Life

    1. The child sues and claims D's negligence caused his own birth.

      1. Not a claim that D caused the child harm, but just caused him to be born.
    2. MAJ: Child cannot sue D for negligently causing his own birth. It would be impossible to put him back to his pre-tort condition (nonexistence).

      1. P cannot generally sue for being resuscitated and being brought back to life, either.
    3. MIN: Allows child to sue, but limits damages to extra expenses because child was born with defects if these expenses are not recovered by the parents in their wrongful birth action (parent's damages is limited by their life expectancy, child's action limited by child's life expectancy).

      1. No Jx allows child to recover for emotional distress in being born with a disability or a healthy child to sue for being born.
  • Landowners and Occupiers

    1. MAJ: Courts limit the duty of care required by possessors of land for the benefit of visitors to the land based on the visitor's status:

      1. Trespassers

        1. Trespassers are visitors to the land who come without permission or privilege.

          1. Permission need not be explicit but can be implied by the occupier's actions or simply community customs.
        2. Traditional View: The only duty owed trespassers was to avoid intentional or willful injury to them (except under an applicable privilege such as self-defense). Consequently, it was also unlawful to set up intentional traps to injure trespassers.
        3. Modern/Restatement View

          1. Unknown Trespassers: No duty (except to refrain from willful or wanton infliction of injury).
          2. Frequent or Known Trespassers

            1. Activities: D must act as a reasonable person when engaged in activities (such as using machinery) when it is known trespassers are present or in locations trespassers should normally be anticipated to be present because of constant trespassing in specific portions (such as a trail) of D's land.
            2. Conditions
  • Man-made: D must warn or make safe known, concealed artificial conditions which involve risk of death or serious bodily injury - does not apply to artificial hazards that the trespasser would be expected to discover or which are inherent in the use of the land or non-serious risks. This does not impose a duty to inspect for hazards (such as exposed electrical wires).

        1. Natural: No duty.

      1. Child Trespasser Doctrine / Attractive Nuisance Doctrine

        1. D is required to exercise reasonable care if (all five):

          1. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass;
          2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
          3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
          4. The utility of the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved; and
          5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
        2. No longer does the condition injuring the child have to lure the child onto the property.
        3. Does not apply to natural conditions.
        4. Does not apply if child, by his age, should appreciate the harm (e.g., harms caused by moving machinery, heights, water, or fire).
        5. D must have clear evidence that a child might come into contact with the harm-causing artificial condition (not enough that a reasonable person would have known).
        6. Does not apply if avoiding the harm would pose a great burden on D, although the greater the risk, the more precautions D must take.

    1. Licensees

      1. Licensees are those that enter the land with the express or implied consent of the land possessor, as in the case of social guests, those visiting for their own personal business (e.g., salesperson before D has agreed to transact business), those approaching the front door (unless there is a fence or sign prohibiting such), or police or firefighters.
      2. Activities: Land possessor must act like a reasonable person when engaged in activities (such as mowing the lawn) when the presence of a licensee is known or should be known.
      3. Conditions

    Man-made or Natural: D must warn of all known, hidden (not apparent) conditions posing an unreasonable risk of any harm (not just serious or deadly harm).

    1. Inspections to discover dangerous conditions and repairs are not required.

  • Invitees

    1. Invitees come onto the land with the express or implied consent of the possessor and are either business invitees (on the land for the potential financial benefit of the possessor) or public invitees (on land held open to the public at large). Examples of invitees are customers, business guests, and museum patrons - some Jxs consider building inspectors, mail carriers, and meter readers as invitees.
    2. There is no limit on the duty of the possessor to act reasonably to protect invitees.

      1. D has duty to inspect the land to discover hazards and make reasonable repairs when a mere warning is inadequate.

        1. If a possessor knows or should know of a danger on the property, he must either remedy it or warn the invitee of its existence where the risk is not known or obvious.
    3. D must only act reasonably, though, he need not insure an invitee's safety.
  • MIN: Unitary Standard

    1. Status approach is replaced with a generalized reasonable person standard (this would obviate the need for a child trespasser standard as well).
    2. Some courts have merged the invitee and licensee category but retain a limited duty for trespassers.
    3. Some courts have statutorily barred trespassers with criminal intent to recover from land possessors except for willfully or wantonly inflicted injuries.
  • Land Possessor's Liability to Plaintiffs Off the Land

    1. C/L Rule

      1. Natural Conditions: Land possessor owes no duty to those outside the land for natural conditions on the land, even where the land possessor realizes that the condition creates a significant risk of serious harm.
      2. Man-made Conditions/Activities: For harms created by artificial conditions or the possessor's activities, he owes a duty.
      3. Trees in Urban Areas: An exception to C/L rule exists; a land possessor is required to exercise care to see that trees on property in an urban area do not pose unreasonable risks to those outside the land.

        1. Some Jxs have expanded this to trees in rural, suburban, as well as urban areas.
    2. Some Jxs have abandoned the C/L rule and impose a duty of reasonable care for all activities and conditions.
  • Negligent Misrepresentation

    1. Duty to Client

      1. If client hires CPA, CPA is under the duty of the professional standard of conduct and may be liable to his client for negligence in breaching that duty, even if the client's damages are solely economic.
  • There is no duty in the absence of a business, professional, or employment relationship.

        1. Duty to Third Parties

          1. MIN: Quasi-Privity

            1. D owes duty only to those third parties to whom D provides information at the request of its client.

              1. P must be specifically identified to D.
          2. MAJ: Restatement/Intended Recipients

            1. D owes duty only to a limited group of persons for whose guidance D intended to supply the information.

              1. P need not be specifically identified to D.
              2. Duty is limited to the transactions D intends, or knows the recipient intends, to influence, or to a substantially similar transaction.
            2. Limited to information provided in a business, professional, or employment relationship.
          3. MIN: No Limit/Foreseeable Recipients

            1. Duty is owed to all foreseeable recipients.

              1. NJ has used this standard but requires that P obtain the information from D's client for a proper business purpose.
        2. Attorney Liability to Third Parties

          1. MAJ: Absent fraud or bad faith, an attorney is not liable for negligently inflicted economic harm on non-client third parties.

            1. Some courts will find an exception when the attorney's client intended to benefit a third party, such as a beneficiary of a will (in those cases, the party that was in privity of K with the attorney is dead and cannot bring the malpractice action).
      1. Negligently Inflicted Economic Loss

        1. Clear MAJ: No legal duty under negligence to refrain from causing pure economic loss.

          1. Economic loss is generally only awarded when it flows from a negligently inflicted personal injury or property damage.
        2. Slight MIN: Exception when P is "Particularly Foreseeable"

          1. People Express v. Consolidated: Allowed recovery of economic damages to an airline forced to shut down because of D's negligent fire. The court ruled that the airline was part of an identifiable class of Ps, which were particularly foreseeable Ps, and the injury was the type of expected economic disruption. However, passengers were not allowed to recover for their lost business deals, etc.
          2. J'Aire v. Gregory: P was the owner of an airport restaurant that had to closed while D renovated the airport's heating and air conditioning. The court allowed P's claim for negligent interference with prospective economic advantage to go forward against D for lost profits incurred due to D's unreasonable delays in renovating the HVAC system despite a privity of K relationship.

    1. Defenses to Negligence

      1. Contributory and Comparative Negligence

    Contributory Negligence

    1. Definition: Conduct on the part of P which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of D in bringing about P's harm.

      1. Complete bar to P's recovery.
      2. The standard is objective:

        1. Usually reasonable adult standard (unless child or professional standard should be used).
        2. Modern Trend: Some courts make allowances for mental deficiencies or insanity in assessing contributory negligence of P (even though they do not consider mental deficiencies for D's negligence).
      3. P's negligence must be cause-in-fact and proximate cause to his own injuries.

        1. Failure to take precautions to avoid injury is not a cause of the injury (e.g., failing to wear a seatbelt does not cause a car collision).

          1. However, P is required to mitigate his injuries (unless it would be unreasonable to do so because such conflicts with his religious beliefs). Therefore, some courts have characterized failure to wear seatbelts or motorcycle helmets as failure to mitigate in advance of an injury and have held D not responsible for P's exacerbated injuries.
          2. In many Jxs, negligent failure to mitigate is subsumed by comparative negligence.
      4. Contributory negligence is not a defense to intentional torts or willful, wanton, or reckless conduct related to negligent torts.

        1. In comparative negligence Jxs, P's negligence can reduce an award for D's willful, wanton, or reckless conduct.
    2. Last Clear Chance Doctrine

      1. P's contributory negligence is not a defense to D's negligent conduct if P's negligent conduct occurs chronologically before D's negligent conduct.

        1. Jxs are generally rejecting the last clear chance doctrine when adopting comparative negligence in place of contributory negligence.
    3. Plaintiffs Unable to Exercise Self-Protection

      1. Restatement precludes contributory negligence for D who violates a statute enacted to protect a class of persons from their inability to exercise self-protective care (e.g., child labor laws, sale of liquor to intoxicated persons).

  • Comparative Negligence

    1. Definition: Conduct of P falls below the standard of conduct that he should conform to for his own protection and that is a legally contributing cause cooperating with the D's negligence in bringing about P's harm.

      1. Only partial bar to P's recovery: P's recovery is reduced by the percentage of his responsibility in causing the harm.
      2. All but 4 states have replaced contributory negligence with some form of comparative negligence.
    2. Pure Comparative Negligence (12 states)

      1. P can recover some percentage from D regardless of the extent of his own negligence.
  • P is 60% responsible for an accident. P can recover 40% of his damages.

      1. Modified Comparative Negligence (MAJ)

        1. P is allowed a partial recovery just as in pure comparative negligence, until P reaches a certain level of culpability for his own accident. Once P reaches this level of culpability, P is completely barred from any recovery.
        2. Greater than 50% Approach (>20 states)

          1. P is barred from recovery only when he is more negligent than D (more than 50% responsible)

            1. P and D are equally liable for the accident. P can recover 50% of his damages.
        3. 50% or Greater Approach (15 states)

          1. P is barred from recovery when he is equal to or more negligent than D (greater than or equal to 50% at fault).

            1. P and D are equally liable for the accident. P can recover nothing.
            2. P is 49% liable for the accident. P can recover 51% of his damages.
            3. P, X, and D are equally liable for the accident. X is not included in the suit. P can recover damages from D because he is only 33% at fault.
        4. "Slight" Comparative Negligence (1 state)

          1. P is barred from recovery if negligent unless his negligence is slight.
      2. Determining the Percentage of Fault Attributable to P

        1. The trier of fact selects a percentage based on its appraisal of the relative fault in order to determine an equitable apportionment of loss.

    1. Assumption of Risk

      1. Definition: Assumption of risk has traditionally been a complete defense to negligence if P has (all three):

        1. Knowledge of a Particular Risk;

          1. Assumption of risk uses a subjective standard: P must have actual and conscious knowledge of the particular risk (unlike contributory or comparative negligence, which use an objective standard of what P should have known).
          2. P must know of the particular risk, along with its magnitude and implications.

            1. Jury may examine P's actions in a common sense context to determine whether he knew, even if he denies knowing of the risk.
            2. Murphy v. Steeplechase Amusement Co.: P got on an amusement park ride after seeing that it was a moving conveyer belt which threw riders down as part of the ride. P's negligence award against the amusement park was reversed where the court held that he was aware of the risk before he got on the ride.
        2. Voluntariness; and

          1. P must voluntarily expose himself or his property to the risk.

            1. Courts vary in their interpretation of voluntariness.
          2. Rush v. Commercial Realty: The court held as a matter of law that despite the fact that P knew the floor of the outhouse she was using was in bad order, she had no choice when impelled by the calls of nature and was required to leave the premises. She was held to involuntarily assume the known risk that the

    floor would collapse, which it did, thereby barring the defense of assumption of risk.

    • Assumption of the Risk.

    1. The defense only applies to the particular risk that P knowingly and voluntarily assumes (similar to consent as a defense to intentional torts).
    2. Woodall v. Wayne Steffner Productions: A stunt flyer, the "Human Kite," flew while strapped to a makeshift kite attached to a moving automobile, was injured when an inexperienced driver exceeded a safe speed and the kite plunged to the ground as a result. The court held that although P did assume the risk of falling, he did not assume the risk of being driven by an incompetent driver.

    • Classifications of Assumption of Risk

    1. Express versus Implied Assumption of Risk

      1. Express Assumption of Risk: when, by K or otherwise, P explicitly agrees to accept a risk.

        1. Complete defense to the specific risks P has agreed to assume.
        2. Can be invalidated when it would be contrary to public policy:

          1. Made under duress or coercion,
          2. Where P assumes risk of very reckless conduct,
          3. Where P is at a bargaining disadvantage to D, e.g., employer-employee status, public utility-customer.
        3. Usually not invalidated where P expressly assumes a risk for participation in a recreational activity (e.g., skydiving).
      2. Implied Assumption of Risk: when P's voluntary exposure to risk is derived merely from his behavior not from explicit assent.

        1. Approach 1: Assumption of Risk Remains a Complete Defense

          1. Small number of Jxs hold that while comparative negligence should properly supplant contributory negligence, assumption of risk should remain a complete defense.

            1. Recognizes that comparative negligence does not require a subjective awareness of the risk that assumption of risk does.
        2. Approach 2: Questioning the Reasonableness of the Assumed Risk

          1. Unreasonable assumption of risk is absorbed into comparative negligence as a partial rather than complete defense.
          2. Reasonable implied assumption of risk does not overlap with contributory negligence but, counter-intuitively, is held to remain a complete defense.
          3. An unreasonable P who assumes the risk is only barred from partial recovery while a reasonable P is completely barred from recovery.
        3. MAJ Trend/Approach 3: Absorption of Implied Assumption of Risk into Comparative Negligence

          1. Allows both reasonable and unreasonable implied assumption of risk to be absorbed into comparative negligence (called "comparative fault").

            1. The fact-finder may properly allocate some comparative responsibility to P for assuming the risk.

    Firefighters' Rule

    Firefighters (and sometimes police officers) are precluded from suing the person who negligently started the fire in which the firefighter was injured (does not preclude suing arsonists).



    This is an old torts outline from 1999. The basic torts outline issues have not changed but there are state specific issues. You will be lost if you depend on someone else's torts outline. You must do your own and then compare to be sure you have all the issues. Then test yourself on sample torts essay questions at:

    Torts Essay Exam Questions and Answers

    ASK A LAWYER YOUR TORTS QUESTION. A DEPOSIT IS REQUIRED.