Torts I Outline Fall 2012 Prof.

Meghan Ryan SMU Law

1. Torts
a. A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of
damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.
Blacks 2008
b. Types
i. Intentional
1. Dignitary
a. Battery
b. Assault
c. False Imprisonment
d. IIED
2. Property
ii. Negligent
iii. Strict Liability
c. Statute of Limitations
i. 1-4 years from date injury is or should have been discovered
ii. Tolled for Minors
d. Remedies = Damages
i. Nominal ONLY for intentional
ii. Compensatory (Actual)
1. Economic
a. Actual
b. Future Earnings
c. Collateral Source Rule: Amount collected from another source cannot be deducted from tort recover
2. Non-economic (Pain & Suffering)
e. Goals of Tort Law (pp. 35-40 Re-read)
i. Instrumental
1. Deter threats of liability
2. Compensation Restores plaintiff, makes them whole
3. Aims to maximize welfare
ii. Non-instrumental
1. Corrective Justice Duties that were broken
2. Civil Recourse theory (Capacity of individuals self-reliance is reaffirmed; not reliant upon govt.)
a. Private vs public methods of social ordering
b. Similar to corrective justice but needs to remain private law

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Intentional Torts
Dignitary Wrongs
Battery
Elements
Intent to cause harmful or offensive contact with the another person
Harmful or offensive contact directly or indirectly results
THUS
Intent
Unprivileged/Unlawful
Contact
Harm
Definitions
from Restatement
13Battery: Harmful Contact
An actor is subject to liability to another for battery if:
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and
A harmful contact with the person of the other directly or indirectly results.
18Battery: Offensive Contact
An actor is subject to liability to another for battery if:
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and
An offensive contact with the person of the other directly or indirectly results
from Book
the intentional, unprivileged, and either harmful or offensive contact with the person of another.
Intent
Types of Intent
Purposive
Constructive (knowledge with substantial certainty)
Does intent mean the harm or the conduct?
Single-Intent Jurisdiction
Need only to intend the act; need not intend harm
Examples:
Vosburg
Dual Intent
Must intend both the act AND that harm will occur
Examples
Garratt:
Harm can be intended if known with substantial certainty such harm will occur
Restatement
Ambiguous; Allows for both
Transfer of Intent
Two types of transfer of intent
Transfer of intent re Victims
A intend to strike B, but instead strikes C
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2. Transfer of intent re Torts

a. A intends to assault (cause apprehension) but instead commits battery [But restatement would just say this is
battery]
d. Complicated Intent Case
i. State Farm v SS & GW
1. Battery for Herpes Transmission
2. Ins. Co. claims it was consensual and was intentional act therefore was excluded by policy
3. Ct said intent for sex =/= intent to transmit herpes
4. [Conflates torts intent with contract intent]
4. Contact
a. Examples of Contact
i. Direct - Defendants actions result in direct physical contact with Plaintiff (Vosburg)
ii. Direct - Defendants actions cause Plaintiff to come into contact with the ground or other harm-causing object
(Garratt)
iii. Indirect - Defendants actions result in physical contact with something closely related to Plaintiff (clothing,
something he is holding, etc.) (Fisher)
iv. Indirect - Defendant contacts an object which, sometime later, comes into contact with Plaintiff (Poison Fruit
Case)
v. Hybrid - Molecularly Small (Leichtman smoke in face)
1. Compare to McCracken (Smokers Battery not contact)
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Harm
Restatement 2d
Physical Harm
Can be to body or property
Must be detrimental
Bodily Harm
Physical injury, illness, disease, impairment of bodily function, or death
Need only be change, not necessarily detrimental
Restatement 3d
Merged Bodily Harm into Physical Harm
Now MUST BE detrimental
But unwanted surgery could still be OFFENSIVE
But must be OBJECTIVELY offensive (not just to an unduly sensitive person)

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Privileges
Affirmative Defenses
D must establish by PofE
Types of Consent
Consensual Privilege
Evidence P has consented
Express
Determined by facts and circumstances
Non Consensual Privilege
Self Defense
Defense of Others
Defense of Property
Necessity
CONSENT
Evidence that P consented to or allowed contact
Explicitly Communicated
Implicit - Determined by facts and circumstances
Objective Manifestations (OBrien - smallpox vaccine)
Can child consent? (Barton teen temptress) = Yes - MINORITY)
Can consent to criminal act? (Barton again)
Extended Consent - Surgery
Bang
D severed spermatic cords during prostate Sx
Continuance in Emergency only
Need informed consent for other cases
Kennedy
Lance cysts in general area of Sx (appendectomy)
Court: Law should change because nature of Sx changed
Anesthesia and no family in room makes consent at time impracticable

Battery vs. Negligence in Surgery (How consent Distinguishes)

Battery = No consent / unauthorized
Negligence = Consent, but Inadequate informed consent re Sx risks
Implied Consent - Hazardous Activity
Hackbart
Football player struck in manner not an accepted part of either the playing rules or general customs of the
game
Consent for conduct within game does not extend to acts falling outside rules and customs of game
Non Consensual Privilege
Self Defense (DO WE WANT TO MOVE TO SEPARATE DEFENSE SECTION?)
Restatement (2d)
Self-defense by force not threatening death or serious bodily harm
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Reasonably believes another is about to intentionally inflict harmful/offensive contact

Privilege for reasonable force
Self-defense by force threatening death or serious bodily harm
Reasonably believes another is about to inflict intentional contact or other bodily harm
Reasonably believes he is thus in peril of death, serious bodily harm, etc., which can safely be prevented only
by this immediate force
iii. Privilege for reasonable force
iv. But caveats regarding retreat, etc. (note that authorities are somewhat divided on retreat requirements)

c.
2. Cases
a. Belief must be reasonable, regardless of true nature/danger of attack. (Courvoisier - shot cop in plain clothes
coming to aid)
ii. Defense of Others
1. Generally same rules as as self defense
a. But split in authority as to whether the privilege exists if intervenor mistakes anothers privilege of self
defense
i. Majority: Only if Other has priv of self-defense
ii. Minority: Privilege extends even if mistaken about others privilege of self-D
2. Restatement: Intervenor has a right to defend the other person, even if he is mistaken about the other person
having the right to defend himself, as long as he reasonably believes that. (follows minority)
iii. Defense of Property
1. Restatement:
a. intrusion must be unprivileged,
b. actor reasonably believes intrusion can be prevented by using force,
c. actor has first requested other to desist,
d. reasonable force (not intended or likely to cause death or serious bodily harm)
2. Generally, no privilege to use deadly force or force that might cause serious bodily injury unless there is a
threat to Defendants personal safety or safety of others (Katko - spring gun not acceptable for protection of
property)
iv. Necessity
1. Definition: Defense to a claim for trespass/intentional interference with property
2. Private
a. Risk to individuals can be reduced/eliminated by damaging someone elses property
i. Qualified privilegehas to pay after the fact
b. Ploof
c. Vincent
3. Public
a. Use of private property for greater good of public
i. Hypo: public official setting a house on fire to stop the spread
ii. Traditional view: public necessity is an absolute privilege
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iii. Some jurisdictions, city or state must compensate victim under either state constitution or b/c of statutory
mandates
4. Instances of necessity
a. May be used offensively (Ploof - pirates of Lake Champlain)
b. May be used defensively (Vincent - retying boat through storm)
c. Applies when the circumstances that are not caused by P require the necessity (unlike self-defense)
v. Discipline
1. Parental
2. Teacher or other in loco parentis

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Assault
Restatement (2d) 21 &29
A defendant is liable for assault if:
Defendant acts intending to cause harmful or offensive contact or an imminent apprehension of such contact;
and
Plaintiff is put in such imminent apprehension
If defendant does not intend to cause the contact or apprehension, no assault for imminent apprehension even
if act involves unreasonable risk of causing it and thus would be negligent or reckless
ELEMENTS:
Intent to Cause harmful or offensive contact OR imminent apprehension of such contact
AND Plaintiff is put in such imminent apprehension

3. Transferred Intent: Battery & Assault

a. An actor is subject to liability for another for battery if
i. (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or
an imminent apprehension of such a contact, and
ii. (b) a harmful [or offensive] contact with the person of the other directly or indirectly results.
4. Cases:
a. Read v. Coker -- Strong Men tucked up sleeves
i. To constitute an assault there must be an attempt coupled with a present ability to do personal violence.
b. Beach v. Hancock (D pointed an unloaded gun, P didnt know it wasnt loaded)
i. Issue 1: Can Jury take into account that having too small a damage would encourage breaches of the peace.
ii. Issue 2: Trial Ct. ruled that pointing a gun, when V is ignorant of load status, assault is performed regardless
of snapping the gun
iii. HOLDING:
1. This was an assault
2. Trivial damages will encourage breaches of the peace
c. Bouton v. Allstate Insurance Co. (homeowner kills trick or treater with toy gun)
i. Imminent apprehension of harm must be reasonable (RPP)

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False Imprisonment
Restatement 35
Defendant is liable for false imprisonment if:
Defendant acts intending to confine Plaintiff within boundaries fixed by Defendant;
AND His act directly or indirectly causes confinement;
AND Plaintiff is conscious of the confinement or is harmed by it
Defendant is not liable if it is not done with intention to confine and confinement is transitory or harmless,
even though the act involves an unreasonable risk of imposing confinement
Generally
Defendant:
Intends to confine
Causes confinement
Plaintiff:
Is conscious of confinement; or
Is harmed by confinement
Cases
Whittaker v. Sanford (cult member on boat)
Physical Barriers suffice for false imprisonment
Damages may be ameliorated by situation (lack of humiliation; fancy yacht, etc.)
Rougeau v. Firestone Tire & Rubber Co. (sitting in guard station)
No false imprisonment because:
Was never actually constrained
Only sat for 30 minutes
Was able to leave (when he felt ill)
P showed implied consent
Coblyn v Kennedys (Old man with Ascot)
Shopkeepers exception requires Objective Reasonablness
Use of Physical Force (held his arm) and Coercive Circumstances (old man)

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Intentional Infliction of Mental Upset (IIED)

ELEMENTS:
Extreme and outrageous conduct
Intent or reckless disregard of harm
Causation
Restatement 46
Defendant is liable for emotional distress and/or bodily harm if:
He engages in extreme and outrageous conduct
This conduct is based on an intent to cause severe emotional harm or at least in a reckless disregard of such
harm
His conduct causes severe emotional harm
Where such conduct is directed at a 3rd person:
Defendant is also liable to members of that persons immediate family present at the time for emotional
distress even if no bodily harm
Defendant is liable to any other person present if such distress results in bodily harm
Test Level -- Average Person
Emotional Harm to avg person -- NOT overly sensitive person
Cases - Normal
State Rubbish Collectors Association v. Siliznoff
No assault, but not needed
A cause of action is established when it is shown that one, [absent privilege], intentionally subjects another to
the mental suffering incident to serious threats to his physical well-being, whether or not there is an assault.
Cause of action if mental upset caused by physical threats to well-being
Jury is capable of assessing mental harm, absent physical damage
Case - Unique Perspective for RPP
Taylor v. Metzger (racist sheriff - epithet)
Many jurisdictions find that a single racial slur cannot usually amount to extreme/outrageous conduct, but it is
absolutely insulting that a high level officer can say this
Conduct must be so severe, no reasonable person could be expected to endure it
This case talks about the severity of IIED harm that results
Average African American: Makes objective standard less objective
Policy: Courts are typically reluctant to grant IIED claims over an epithet
Cases - Stretching IIED Law
Burial Services:
Action intentional
But no intent to cause ED (just trying to defraud)
Courts still find for Plaintiffs
Analogous to Single Intent Jurisdiction in Battery cases
Samms v. Eccles (explicit phone calls)
Court stretched the law
Samms test: Where any reasonable person would have known that such [harm] would result; and his actions
are of such a nature as to be considered outrageous and intolerable in that they offend against the generally
accepted standards of decency and morality.
Ford v. Revlon (harassment at work)
Recklessness (Conscious Disregard) substitutes for intent
Conduct that creates an unreasonable risk of harm to othersand either the degree of risk is high or the risk is
of a very serious harm
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a. (essentially a product of Risk * Harm such that if one is really high, it can outweigh the fact that the other is
really low -- not officially from here)
2. Defendant is conscious of the risk and proceeds without concern for the safety of others
7. Case - Conflict with Constitution
a. Snyder v. Phelps (Picketing soldiers funeral)
i. Held: Subject was a matter of public concern and on public property
ii. Didnt directly target an individual

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Actual Causation (AKA Cause in Fact, AKA Factual Causation)

Basic Causation
General: Whether the activity alleged is inherently capable of causing the sort of harm suffered by the plaintiff
Often obvious
e.g. Car wrecks cause injuries/damages
Needed in Toxic Tort Cases
Specific: Whether the defendants specific action causes the harm
Cases
Perkins v. Texas and New Orleans RR Co. (Train speeding)
Introduces But-for causation
But for Test; excessive speeding was inconsequential to the result
Substantial Factor Test: Substantial factor in bringing about the harm
Speed not a substantial factor in this case
Escape theory of Plaintiff (not enough evidence in this case)
Whether P would have been able to escape (avoid) harm
Hoyt v. Jeffers (Chimney sparks)
Direct evidence v Circumstantial Evidence
In the absence of direct evidence, indirect evidence can be sufficient to create a question of fact for the jury
Circumstantial evidence can be more helpful when direct evidence witness is completely unreliable
Circumstantial Evidence -- Texas Jury Charge:
A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by
direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the
words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred
from other facts proved.
Statistical Evidence
Smith v. Rapid Transit Inc (Bus hitting parked car on road at night)
Pure statistics are insufficient without other circumstantial evidence
it is not enough that mathematically the chances somewhat favor a proposition to be proved.
Wells Effect: People less likely to trust probabilistic evidence: distrust thought to be driven by the ease with
which purely probabilistic evidence enables jurors to imagine alternative scenarios
Problem using just statistics: need additional information or else youre penalizing someone for simply being
the majority
Scientific Evidence & General Causation
Toxic Tort Cases
Frye Test: Generally accepted requirement
Daubert Test: Weight of Evidence
Epidemiological Evidence
Hypo: Janice (may have) slipped on icy sidewalk (extending from yard with skating pond)
82 yo
history of fainting
found unconscious
no memory of accident
How do you establish causation
General causation: Ice causes slip/falls
Specific Causation:
Circumstantial in favor of Ice
Fell at ice
Any head trauma from fall to explain memory loss
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Defensive wounds from fall

Other Incidents
Witnesses
Circumstantial in favor of fainting
Memory Loss
History of fainting

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b. Jointly and severally liable

i. (1) all Ds in case are wrongdoers (at least vicariously); and
ii. (2) each of them caused some amount of harm, but it is impossible to establish how much harm each of them
caused
iii. All Ds liable for entire amount and must determine allocation among themselves
iv. Examples
1. employer/employee held liable for employees conduct
2. joint enterprises, acting in concert, common plan
3. auto collisions where both Ds were negligent (indivisible harm)
4. med malpractice
v. Alternative Liability
1. Cases
a. Summers v. Tice (2 guys shot another guy)
i. Extended traditional rules of joint and several liability
ii. Alternative liability is an extension of joint and several liability
iii. Problem: not that harm is indivisible, but that only one person caused harm and we dont know which
iv. P must establish:
1. (1) all Ds in the case are wrongdoers;
2. (2) no one other than Ds caused harm; and
3. (3) causation is from within the group
v. Once P established prima facie case that Ds engaged in wrongful conduct, when you dont know which caused
the harm, P can recover and Ds apportion it among themselves
b. Ybarra
i. Res ipsa loquitur: even though he doesnt know who did it and he doesnt have evidence, the fact that he was
injured suggests negligence (injury speaks for itself)
ii. What justifies the burden shifting?
1. A stretch of the all are wrongdoers idea seen later in Summers
a. Ds in a better position to know what happened
b. Loyalty (conspiracy of silence)
c. Acting in concert (but were they really?)
vi. Market Share Theory
1. Limited approach
2. P must:
a. Establish company caused the harm
b. Be able to sue substantial share (Sindell) (but see Collins -- only have to sue one)
3. After burden shift, if company cant carry its burden, its liable for the percentage of damages
approximating its individual share of the relevant market
vii. Problem 8 (dog attack)

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Concurrent & Successive Causation

Definition: Whether 2 or more causal agents would, independent of each other, have caused Ps harm
Cases
Dillon v. Twin State Gas & Electric Co. (fell off bridge grabbed electric wire)
D is liable only for the aggravation to the plaintiff that the defendant caused
If 2 independent causes occurring in close succession, one of which was negligent and the other of which
was not, negligent actor is not liable if the other cause would have caused all of the injury independently
Anderson (two sources of fire, one unknown source but still negligent)
Substantial factor test (replaced but-for causation):
P is liable if his negligence is a substantial factor in bringing about the harm
Kingston v. Chicago & N.W. Ry. (MINORITY)(Another fire...One unknown, one negligent)
Substantial factor test
If only one non-negligent cause combined with negligent cause, D is off the hook
Potential natural cause (as distinguished from Anderson)
D has the burden to prove there was a concurrent natural cause (as opposed to a concurrent negligent cause)

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Between Alternative and Concurrent -- Two different approaches to making D figure out who is responsible
One Negligent cause, but not sure who:
Summers: Hold both wrongdoers responsible and let them figure it out
Two negligent causes but not sure who one of the causes was
Anderson/Kingston: Hold known wrongdoer liable and let them figure out who the other party should be

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Loss of Chance Doctrine

Cases
Cahoon v. Cummings
May recover for loss of chance when negligence hastened or aggravated the injury or deceased the survival,
but damages will ordinarily be proportional
b. If negligence decreases your chance of survival, you can recover that loss of chance of your life, even if you
were probably going to die anyways.
f. Vicarious Liability
i. Respondeat superior (master/servant relationship)
1. Most often employment context
a. Employee vs. Independent Contractor Factors
i. Whether distinct occupation or business
ii. Whether skill required in the particular occupation
iii. Length of time
iv. Method of payment
v. Intent: whether parties believe they are creating a master-servant relationship
2. Employee (or agent)?
3. Scope of employment (or agency)?
a. Factors
i. Whether act is common of these employees
ii. Ordinary act a person engages in as part of employment
iii. Prior relations b/n employer and employee
iv. If employer has reason to expect this type of action would occur w/ employee
v. Whether act was seriously criminal
vi. Whether act is similar to other acts that are authorized
vii. Whether act was intentional
b. Vs. Frolic and Detour
i. Individual is working within the scope of employment but then goes to do something not in the scope and the
injury occurs
1. Ex: Driving for business reason, stops to get dry cleaning, injury occurs
4. Exceptions
a. Employers own negligence as hirer, supervisor, etc.
i. Ex: Ybarra: Failure of supervision
b. Non Delegable Duty
i. Employer can still be liable for independent contractors act if duty is non delegable
ii. Example: Hospital/Doctor
1. Hospital cannot delegate their duty to the patient away to the doctor (though the doctor also has their own
duty)
c. Inherently dangerous activity
i. So dangerous an action that employer cant delegate duty away
d. Ostensible agents
i. Can be held liable if ones actions or words tell others that they are an employee, because it seems like they
are actually an employee
5. Policy:
a. Compensation; employers have deeper pockets.
i. Allow for recovery more often
b. Allocate to Business Enterprises the Costs of Accidents caused by those enterprises (a bit of a but-for)
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More careful hiring, supervision, etc.

Counterargument: we still have liability for negligence
Employer scrutiny of desired and useful actions
Joint Enterprise
People acting jointly in something with equal control over each others action can be held vicariously liable
Family Purpose Doctrine
E.g., Mom/dad lending car to teenager to get groceries for family and teenager gets into wreck

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Negligence
Generally
ELEMENTS
Duty
Breach
Causation x 2 (Actual & Proximate)
Injury
Restatement (Third) 3 -- Negligence
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary
factors to consider in ascertaining are whether a persons conduct lacks reasonable care are:
The foreseeable likelihood [P] that persons conduct will result in harm,
the foreseeable severity [L]of any harm that may ensue, and
the burden of precautions [B] to eliminate or reduce the risk of harm.
Restatement (Second) 291 -- Unreasonableness: How Determined: Magnitude of Risk and Utility of
Conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as
the utility of the act or of the particular manner in which it is done.
Restatement (Second) 292 -- Factors Considered in Determining Utility of Actors Conduct
In determining what the law regards as the utility of the actors conduct for the purpose of determining
whether the actor is negligent, the following factors are important:
(a) The Social Value the law attaches to the interest which is to be advanced or protected by the conduct;
(b) The extent of the chance that this interest will be advanced or protected by the particular course of
conduct;
(c) The extent of the chance that such interest can be adequately advanced or protected by another and less
dangerous course of conduct.
Restatement (Second) 293 -- Factors considered in Determining Magnitude of Risk
In determining the magnitude of the risk for the purpose of determining whether the actor is negligent
(a) The social value which the law attaches to the interest which are imperiled;
(b) The extent of the chance that the actors conduct will cause an invasion of any interest of the other or of
one of a class of which the other is a member;
(c) the extent of the harm likely to be caused to the interest imperiled;
(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm
Texas Pattern Jury Charge:
Negligence and Ordinary Care
Negligence means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence
would have done under the same or similar circumstances or doing that which a person of ordinary prudence
would not have done under the same or similar circumstances.
Ordinary care means that degree of care that would be used by a person of ordinary prudence under the
same or similar circumstances.

vii. DUTY & BREACH

1. D breaches a duty of care owed to P by failing to act in a reasonable manner under the circumstances
a. D has engaged in tortious conduct and is liable to P for damages if he has failed to use the care of a reasonable
and prudent person in similar circumstances
2. Brown v. Kendall (dog fight)
a. CL set the standard for what a RPP would do
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Rule of law: To establish negligence, P has to establish that D failed to act with ordinary care
Was D at fault, or was D doing an intentional tort?
If P was acting without ordinary care, see if it was unlawful
D can only be liable really if he committed intentional tort OR was at fault
Extraordinary care is too much to demand
US v. Carroll Towing
Standard of Care Formula (Hand)
If B<PL then D is negligent
B=Burden
P=Probability
L=Gravity of Injury
Factors
Value of cargo
Busy port
Adequate care could be expected
Reastatements similarly look at burdens, probabilities, and harms
2d
Sticks with formula
Global Perspective
Utility vs Risk
Social Value
Chance interest will be advanced
Advanced by less burdensome means
3d
Foreseeable Likelihood
Foreseeable Severity
Burden to reduce risk of harm

4.
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Washington v. LA Power and Light Co. (radio antenna death case)

Takes global, instead of specific, perspective in measuring values for formula
Decedent had already taken many precautions, therefore, P (B<PL) is low
So court takes burden globally but probability locally
Law & economics v. moral perspectives
Putting $$$ values on life

5.
a.
i.
b.
i.
ii.
iii.
c.
i.
d.
i.

Goldberg & Zipurskys different uses of DUTY

Traditional:
Whether D had legal obligation to P to conform his conduct to the general standard
No breach as a matter of law
If no reasonable fact finder could find that D failed to reach standard of care
Breach is a determinant of duty
Weirum (represents the converse: Breach, therefore there was a duty)
Nexus
Ds injury-causing conduct must be a breach of duty owed specifically to P
Exemption
Courts create policy-based limitations on liability where they feel that class of Ps are not owed a duty by that
class of Ds
6. Weirum v. RKO (radio station contest death case)
a. Foreseeability
i. The accident was foreseeable
18

ii.
iii.
b.
i.
7.
a.
i.
b.
i.
1.

Just because something hasnt happened before doesnt not establish foreseeability
Dont mistake hindsight for foreseeability
First Amendment
Court rejects argument that the holding violates RKOs 1st Am. rights
Heath v. Swift Wings (pilot/plane crash)
RPP standard may be increased when dealing with special professions
Raises the standard of care
Standard: Reasonably prudent pilot
Standard is NOT a reasonably prudent pilot of same training and experience
Would be too subjective

19

b.
i.
ii.
iii.

Special Rules Governing Proof

Statutes
Custom
Res Ipsa Loquitur

iv.
1.
a.
b.
c.

Statutes
Approaches to violations of statutes
MartinUnexcused violation is negligence per se
Defendant may try to show violation is excused
Vermont approach (Sheehan)Violation of safety statute gives rise to a presumption of negligence that
Defendant may rebut by showing that a reasonable person would have acted as Defendant did
Very close to Martin approach
Arkansas approach (Gill)Violation of safety statute is some evidence of negligence
Excused Violations ( Rest. (2d) 288A)
An actors violation of a statute is excused and not negligence if:
The violation is reasonable because of the actors incapacity;
He neither knows nor should know of the occasion for compliance;
He is unable after reasonable diligence or care to comply
He is confronted by an emergency not due to his own misconduct
Compliance would involve a greater risk of harm to the actor or to others

i.
d.
e.
i.
1.
2.
3.
4.
5.
f.
2.
a.
b.
3.
a.
4.
a.
b.
c.
v.
1.
2.
3.
a.
i.
ii.
iii.
1.
b.
i.

Martin v. Herzog (buggy with no lights)

Unexcused violation of a safety statute is negligence in itself if violation is causation of injury
Technical violation of a statute may not necessarily constitute negligence per se
Tedla v. Ellman (Junk collectors on wrong side of Rd)
Violation of a safety statute creating negligence per se, can be excused if complying with the statute would
have caused a greater risk than the one the statute sought to protect
Brown v. Shyne (Chiropractor w/out medical license)
Failure to obtain license does not give a rise to an injury caused by action. (Majority)
Licensing statutes are treated differently; more difficult to establish neg
Legislature enacted a statute following the case, saying that practicing medicine without authorization is
prima facie evidence of negligence

Custom
Violating custom is never negligence per se (unlike statute)
BUT, custom can be abused by industry to protect industry
Cases
Trimarco v. Klein
Evidence of custom helps the jury formulate what societal expectations are
Custom does not have to be universal
Requirements that constitute custom
Must be well-defined enough that D knows or has reason to know of the custom
T.J. Hooper (Lack of Wx Radio sinks barge)
Learned Hand: Industry custom cannot be relied on to set the standard of care when Defendant has complied
with
ii. Custom is NOT dispositive re negligence
c. Helling v. Carey (Ophthalmologists -- MINORITY opinion)
i. Court decided as matter of law that proven custom was not high enough standard of care
20

ii. Used BPL formula

vi.
1.
2.
a.
i.
ii.
iii.
iv.

Custom vs. Safety Statutes

Violation of Custom = Evidence of negligence
Violation of Safety Statute = Presumption of Negligence Per Se
Why different?
Will of the People (statute) vs Industry Standard (custom)
Clear Notice -- No ambiguity as to requirements
Definitive date of effect
Industry acts to minimize costs to industry, not to society

vii. Res Ipsa Loquitur (The thing speaks for itself)

1. Fact that accident occurred shows negligence in itself
2. A jury may infer D was negligent when
a. Injury was probably the result of negligence; and
b. D was probably the negligent party
3. Popular formulation
a. A jury may infer negligence if:
i. The thing causing the harm is shown to be under the exclusive control or management of the D
ii. AND The accident, in the ordinary course of things, does not usually happen in the absence of negligence
4. Procedure
a. Question of inference or presumption
i. Under one approach, jury may infer negligence, but it is not required
1. Plaintiff can beat a motion for summary judgment and escape a directed verdict for Defendant
ii. Under another approach, jury must find negligence if Defendant fails to rebut the presumption
1. Shifts the burden of going forward
5.
a.
i.
ii.
b.
i.
ii.
1.
2.
3.
c.
i.
d.
i.
1.
2.
3.
4.
5.

Cases
Boyer v. Iowa High School Athletic Assn (bleachers)
Under exclusive mgmt/control
No real opportunity for P inspection (tending to injuries)
Shutt v. Kaufmans Inc. (shoe store)
Claim: A shoe fell on my head, yada yada yada, it was negligence
Limitation of Res Ipsa
P cannot rely on res ipsa as a substitute for a failure to prepare when P could have alleged specific acts of
negligence
P could have investigated but failed to do so
Courts focus was on Ps access to the evidence
City of Louisville v. Humphrey (drunk in jail)
Exclusive control not proved (may have been other prisoner present)
Escola v. Coca Cola Bottling Co. (coke bottle shattering)
Res Ipsa allowed because
No opportunity to do discovery (bottle broken)
No access to evidence
Inspection Sufficient at Bottlemaker
Therefore Bottler had Exclusive management/control

21

6.
c.
i.
1.
2.
a.
b.
c.
ii.
1.
2.
a.
b.
c.
3.
iii.
1.
a.
i.
b.
i.
1.
c.
i.
d.
i.
ii.
1.
2.
3.
4.
5.
2.
a.
i.
b.
i.
ii.
iii.
iv.
c.
d.
3.
a.

Special Relationships
Invitees
Owed a reasonable standard of care under the circumstances
Rest 2nd 332
(1) Either a public invitee or business visitor
(2)Public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose
for which the land is held open to the public
(3)A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly
connected with business dealings with the possessor of the land.
Licensees
E.g., social guest, trick-or-treater, police, firefighters
D is liable if
D knows/has reason to know of condition and that it involves unreasonable risk of harm to licensee and
licensee wont know of danger;
D fails to exercise reasonable care to make the condition safe or warn of the risk involved; and
Licensee does not know or have reason to know of condition and risk
Lesser duty of care to licensees than invitees
Trespassers
Generally only a duty to avoid wanton and willful conduct causing harm; BUT
Trespasser attempting crime
Only duty to D: not engage in intentional injury
Constant trespasser
Duty to warn D of artificial conditions which possessor created/maintained, danger causes serious harm or
death
*Problem 16: most courts would say that rot is not an artificial condition
Known trespassers
Proximity
Attractive nuisance doctrine
Children
D is liable for harm to trespassing kids caused by artificial condition on land if:
D knows/reason to know kids likely to trespass;
D condition involves unreasonable risk of death or serious bodily injury to such kids;
Kids, due to youth, do not discover the condition or realize risk;
Utility of condition and burden of eliminating danger dont outweigh risk to kids; and
D fails to exercise reasonable care to eliminate danger or protect kids
Rowland v. Christian (bloody faucet)
Social guest is a licensee
Need a warning
What standard is owed here?
Appellate court: reasonable prudent person standard
People dont lose their value when they walk through the door
Court abolishes the different levels (licensee, invitee, trespasser)
Why are we making these distinctions? Confusing and inconsistent
We look at reasonable prudent person in the particular context
All guests deserve a warning regardless of their status. Original distinctions between licensee, trespasser
and invitee should be abolished
Middle Ground
What middle ground has other courts found? Combining licensee and invitee, but keep trespasser separate
22

d.
i.
1.
ii.
1.
2.
iii.
iv.

Duty of Common Carriers

Common carrier: someone who carries people or goods for money
Ex: Airlines, fed ex, train
Have a higher duty to their passengers
highest or utmost care;
more than a reasonable prudent person
Passengers are dependent on carriers care
Automobile guest statutes (lesser duty owed to passengers)

e.
i.
1.
a.
b.
2.
a.
b.
i.
3.
a.
i.
ii.
b.
1.
2.
3.
ii.
1.
a.

No General Duty to Rescue

Generally there is no duty at all (rest 2nd)
Erie R. Co. v. Steward (no watchman at train crossing)
Generally, there no duty to rescue
BUT, prima facie case against D b/c P relied on the watchman who used to be there
Lacey v. US
Duty to not make the plaintiff worst off than they would have been, had you not rescued
Undertaking a rescue creates a special realtionship
More likely that you owe a duty of care to that person
Tubbs v. Argus
Automotive guest statute; bars her from recovering from original injuries
Lower standard of care; no willful or wanton conduct
In most jurisdictions people dont have these statutes anymore
Ordinarily no duty to rescue, but there was a duty because:
the injury was caused by D
D was either master or invitor; and
Instrumentality resulted from under Ds control
Statutes may create Duty -- Examples:
Minnesota:
Person at scene of emergency must provide reasonable assistance if he can do so without danger or peril to
self or others
e.g Contact Law Enforcement; Contact EMS
Petty Misdemeanor to fail to provide assistance
Rhode Island
Vermont
Except where there is a special relationship
Tarasoff v. Regents of Univ. Cali (therapist case)
Special relationship that suffices to impose a duty to rescue regardless of whether the special relationship is
with the would-be offender or the potential victim
But Justice Mosk says that the Defendants should not be liable for failure to predict violent tendencies based
on the standards of the profession
But Justice Clark says that imposing a duty will deter patients from getting treatment, deter full disclosure,
prevent successful treatment because of lack of trust, and increase violence and civil commitment
Duty arises when therapist predicts violence or should predict violence (MAJORITY)
Professional Standard of Care
Skill, knowledge, and care by others of the profession ordinarily possess- heightened standard of care

i.
ii.
2.
3.
iii.
1.
a.
i.
ii.
b.
i.
1.

23

f. Proximate Cause -- Legal Cause

i. Generally
1. Proximate cause requires that there be a sufficient relationship between the Defendants negligence and the
harm to the Plaintiff
2. Proximate cause often asks whether the harm to Plaintiff was a reasonably foreseeable result of Defendants
negligent conduct
3. Lack of proximate cause cuts off liability as a public policy matter, even though other elements of negligence
are met
ii.
1.
2.
3.

Factors (Marshall v. Nugent):

Foreseeable Must consider if its foreseeable that P would be injured IN THAT WAY
Is activity Too Remote in Time and Space?
Has sequence of events come to an end prior to injury? (Natural sequence)

iii.
1.
a.
2.
a.
iv.
1.
a.
b.
i.
c.
i.
1.
ii.
2.
a.
b.
i.
1.
a.
b.
2.
a.
ii.
iii.
3.
a.
b.
i.
ii.
1.
iii.
iv.
v.

Proximate Cause vs. Extent of Injury

Even though P has to be foreseeable, the extent of the injury doesnt have to be foreseeable
D still liable for the injuries (eggshell plaintiff rule)
Prox cause: whether the fact of the injury was foreseeable
If you do have the negligence claim, the types or extent of injuries resulting may not be foreseeable
Cases
Palsgraf v. Long Island RR
Duty based on foreseeability / relationship
MAJORITY: P is not a foreseeable Plaintiff
No breach of duty, therefore no negligence
But dissent says that its an issue of proximate causation
Centerpiece of prox. cause: factors, but is a question of foreseeability
Proximate cause was a jury question
Also says duty owed to everyone
Solomon v. Shuell (shot by police)
Textbook does poor job of giving facts
Held: the instruction on rescue doctrine was wrong but not harmless
Rescue doctrine: Person who goes to the rescue of another in peril is not contributorily negligent
Rescuers are foreseeable so long as
rescuer is reasonable in deciding to rescue; and
performs it in a reasonable manner.
Exception to rescue doctrine: Firefighters and Police
They are paid to take certain risks so they cannot recover
Whether P was negligent depends on whether the rescue attempt was reasonable
Exception to rescue doctrine: firefighters/police are paid to take risks so they cant recover
Marshall v. Nugent (car swerves to miss truck stopped after near miss -- hits driver going to direct traffic)
Issue: is this happening too far away for proximate causation?
Factors in determining proximate cause
Foreseeability of harm to P
Did D have to foresee itto think that its a possibility?
Nohas to be foreseeable to a reasonable person
Too remote in time and space?
Has the sequence of events stopped/stabilized?
Is the injury arising from the particular risks that are posed by Ds conduct?
24

c.
i.
ii.
d.
i.
ii.
e.
i.
ii.

Butterfly effect raised with respect to Perkins (train speeding)

Even though speeding was but-for cause of wreck, not fair to be held liable
Same thing in Nugent
Intervening cause
If unforeseeable criminal action (most are)
But some criminal actions are foreseeable
Superseding cause
Big enough to cut off the chain of liability
Criminal action not foreseeable

g.
i.
1.
2.
3.
ii.
1.
2.
a.

More on Rescue Doctrine

Rescues are Foreseeable
IF rescuer is reasonable in deciding to rescue
AND if performance of rescue is in reasonable manner,
THEN rescue is NOT negligent
Applying Cardozo from Palsgraf:
Because rescuers are foreseeable, one owes a duty to rescuers
Cardozo on Rescuers:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions
of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within
the range of the natural and probable.

questions
What should we do about defenses? (only under battery or its own separate category)
How do we classify Leichtman and McCracken (smokers cases)? (direct or indirect)

25

Invitee 332, 343

Public Invitee or Business visitor
Generally provides benefits to landowner, even if not paid
DUTY: Reasonable Care
LIABLE IF:
D knew or should have discovered condition on land and should realize the unreasonable risk of harm (need to inspect)
Shoud expect invite would not discover danger or protect against it; and
Fails to exercise reasonable care to protect Invitee
Licensee 330, 342
Person privileged to enter or remain on land only by virtue of the possessors consent
Examples
Social Guest
Police and Firefighters when called for help
Trick or Treaters
DUTY: Lesser duty of care than for invitees
LIABLE IF:
Knows or has reason to know of condition that poses unreasonable risk of harm to licensee and licensee wont know of danger; (no
need for inspection)
Fails to exercise reasonable care to make condition safe or warn of risk involved; and
Licensee does not know or have reason to know of condition and risk.
Trespasser
DUTY: Avoid wanton and willful conduct causing home, BUT:
Trespassers attempting crime Lower Standard
Cannot engage in intentional injury
Constant Trespassers Higher Standard
If know or should know trespassers
Duty to warn trespassers of artificial conditions known or with reason to know and has reason to believe that trespasser will not
discover it or realize the risk
Attractive Nuisance Doctrine
Higher Standard for Children caused by Artificial Condition if:
Knows or has reason to know that kids are likely to trespass
D knows or has reason ot know and realizes or should realize the condition involves unreasonable risk of death or serious bodily
injury to such children
Children do not discover condition or realize risk
Utility of the condition and burden of eliminating danger do not outweigh the risk to children; and

26

D fails to exercise reasonable care to eliminate the danger or protect the children

27

Causes of Action

Defenses (aka Privileges)

Battery
Assault
IIED
False Imprisonment

Necessity
Self Defense
Defense of Others
Defense of Property
Discipline

Negligence
Negligence per se

Consent

28

Issue:

Cases:

Battery: Intent

Vosburg v. Putney (intent to contact - kick in class)

Garratt v. Dailey (substantial certainty=constructive intent - chair)
State Farm v. SS & GW (Herpes)

Battery: Contact

Fisher v. Carrousel Motor Hotel (indirect - plate and yelling)

Leichtman v. WLW Jacor Communications (minimal - smoke)

Assault:

Read v. Coker (attempt coupled with ability--strong men)

Beach v. Hancock (trivial damages can be assault--unloaded gun)
Bouton v. Allstate (imminent apprehension must be RPP--kills trick-or-treater toy gun)

False Imprisonment

Whitaker v. Sanford (woman trapped on boat -- physical boundaries)

Rougeau v. Firestone Tire (held in guard station- wasnt actually contained)
Coblyn v. Kennedy (old man in store -- physical disadvantage)
Sindle v. NYC Transit Authority (Justification available as defense)

Intentional Infliction of
Emotional Distress

State Rubbish Collectors Assn v. Siliznoff (jury can assess mental upset absent phys. inj)
Snyder v. Phelps (picketing funeral - turned on public issue - didnt target specific ind.)
Ford v. Revlon (reckless disregard constituted intent -didnt stop sexual harrasment)

Causation

Perkins v. TX and New Orleans RR Co. (train speeding-- but-for test/substantial factor/escape
theory)
Hoyt v. Jeffers (chimney sparks--direct/circumstantial evidence)
Smith v. Rapid Transit (bus hitting--statistical evidence insufficient w/out circumstantial evidence)

Joint and Several

Liability/Alternative

Summers v. Tice (shooting--alternative liability)

Ybarra (conspiracy of silence--medical malpractice)

Concurrent and
Successive Causation

Dillon v. Twin State Gas & Electric Co. (Aggravation -- bridge/electric wires)
Anderson v. (one natural/other known to be negligent but party unknown, D is liable - MAJORITY)
Kingston v. Chicago & N.W. Ry. (Minority - if neg and natural together D is off the hook if he can show
the other fire is non-neg.)

Negligence: Loss of
Chance

Cahoon v. Cummings (Esophageal Cancer - not found as it early as it could have been)

Negligence: DutyBreach

Brown v. Kendall (Dog Fight/poke in the eye -- reasonable care under circumstances)
US v. Carroll Towing Co. (Barge worker; B<PL = negligence)
Washington v. Louisiana Power and Light (B<PL - D had already touched antenna before)
Weirum v. RKO General (radio station- B<PL = neg., foreseeability)
Heath v. Swift Wings (plane crash--RPP standard increased w/special professions--RPP pilot)

Negligence: Per Se

Martin v. Herzog (buggy w/ no lights - unexcused violation of safety statute neg per se)
Tedla v. Ellman (walkers on rd - violation of safety statute excused if following would cause greater
risk)
Brown v. Shyne (not having a license for chiro. (not a safety statute) - not negligence)

Negligence: Custom

Trimarco v. Klein (shower door--well-defined enough that D knows/has reason to know of the custom)
TJ Hooper (Wx radio--just b/c something is not a custom does not mean that thing is not negligent)
Helling v. Carey (Minority -- B<PL custom was not a high enough standard)

Negligence: Res Ipsa

Loquitur

Boyer v. Iowa HS (bleachers--under Ds exclusive mgmt/control; no time for P to inspect)

Shutt v. Kaufmans (shoe store--when P has access to evidence, res ipsa is no substitute for failure
to prepare)
City of Louisville v. Humphrey (drunk in jail--exclusive control not proved; may have been other
prisoner)
Escola v. Coca Cola Bottling (shattered bottle--no access to evidence/no chance to do discovery;
inspection sufficient at bottlemaker; therefore: exclusive control)

Negligence: Special

Rowland v. Christian (bloody faucet - have a duty to warn guests)

29

Relationships
Negligence: Duty to
Rescue

Erie R. Co. v. Stewart (no watchman at train crossing-- had come to rely on it)
Tubbs v. Argus (D had duty to rescue b/c injury was caused by instrumentality under his control)
Lacey - once you start start to rescue you must use due care
Tarasoff v. Regents of Univ of Cal (Majority - special relationship to either client or one in danger duty arises if predicts or could predict violence)

Negligence:
Foreseeability

Palsgraf v. LIRR (Cardozo: Duty must be Foreseeable; Andrews foreseeability goes to causation)
Solomon v. Shuell (shot by police when helping his son-- rescue foreseeable; must be reasonable)
Marshall v. Nugent (applies causation factors -- not too removed; part of same sequence)

Defense: Consent

OBrien v. Cunard Steamship Co. (manifestation - smallpox vax)

Barton v. Bee Line (consented to statutory rape MINORITY)
Bang v. Charles T. Miller Hospital (During Surgery - continuance for Emerg. only RESTATEMENT)
Kennedy v. Parrott (During Surgery - continuance per Dr. MINORITY)
Hackbart v. Cincinnati Bengals (Outside rules/customs of game)

Defense: Self Defense

(or Others)

Coourvoisier v. Raymond (Reasonableness of belief -- Robbery at story, shoots police officer)

Defense: Of Property

Katko v. Briney (Spring Guns not okay -- lack discretion)

Defense: Necessity

Ploof v. Putnam (Moves tort to landowner Pirates of Lake Champlain)

Vincent v. Lake Erie Transpo Co. (asserting necessity does not absolve you of damage caused)

30