Torts Outline-

Intent-
 Review of intent
o Intent is state of mind about consequences or results
o Intent to injure is not required
o A mistake as to the surrounding facts does not preclude a finding of intent,
unless the mistake Is induced by plaintiff
o Intent produced by mental deficiency is sufficient to support tort liability
 Strict liability
o Liability without the proof of fault
o Employers have strict liability in cases where an employee is injured in the
course of employment duties or respondeat superior
o Product liability, where a product is defective and harms a consumer,
manufacturer is liable

 See- Hossenlopp v. Cannon- where def. had knowledge of dogs danger but didn’t
protect the public from it.

Battery-
 Battery:
o is the intentional, unconsented, harmful or offensive touching of another.
 The elements which a plaintiff must prove to make out a prima facie case of
battery are:
o Intent to make contact (an affirmative act by the Defendant), established
by:
 Purpose - the subjective desire to cause a particular result or
 Knowledge - "substantial certainty" that a particular result will
occur or
 Transferred intent
 If both the tort intended and the tort resulting are within the
five torts descended from the writ of trespass (battery,
assault, false imprisonment, trespass to land and trespass to
chattels), there is sufficient intent to impose liability for the
resulting tort.
 The intent ‘transfers’ only if the defendant acts wrongfully
 o Harmful or offensive touching of the Plaintiff’s person or effects.  In
determining whether this element is present, the following standards
apply:
 “Harmful” is a term of art denoting any unconsented alteration of a
structure or function of the body, even if the change does not affect
the plaintiff ’s health. (Low threshold)
 Contact is “offensive” if it would offend a reasonable person’s
sense of personal dignity
 Where the P has a certain sensitivity and the D knows of
this sensitivity the D is liable. (Lady Baa Baa)
o Absence of consent
 Remember:
o Intent to harm is NOT required only intent to touch.
o On consents to the touchings which occur in every day life. (bus hypo)
 See- Vosburg- which sets forth:
o If an act is unlawful, that makes the intent to commit the act unlawful.
o Social conventions do have a hand in deciding if an act is unlawful
o Even if someone has a previous injury if it is aggravated and intent is
found. The person who had intent should bear
 See- Brzoska case- where dentist had aids and died and his former patients sued.
Found that it was not a harmful or offensive touching.
 See- Picard v. Barry, camera knocked out of hand constituted battery because
object was intimately related to plaintiff; object attached to or identified with P’s
body was sufficient to constitute battery.
 See- Moore v. El Paso C of C, set forth that indirect contact could rise for battery
and agency may be held liable for battery committed by an agent if done during
course of work assigned by employer.
 See- Noble v. Louisville Trans., where the little girl is held up by taxi driver. Set
forth all uninvited contact is not a battery or assault. Exceptions exist.

Assault-
 Assault:
o is committed if the defendant intentionally creates in the plaintiff a well-
grounded apprehension of imminent, unconsented bodily contact. 
 The elements which a plaintiff must prove to make out a prima facie case of
assault are:
o Intent to cause apprehension of contact, established by:
 Purpose - the subjective desire to cause a particular result or
  Knowledge - "substantial certainty" that a particular result will
occur or
 Transferred intent
 Repo hypo- gun pointed at driver; assault transferred to
passengers (all elements of assault were present)
o Present apparent ability to cause contact
 have to actually be able to cause contact
o A threatening gesture by the defendant (in most instances).
o A well-grounded apprehension of imminent, unconsented bodily
contact.  In determining whether this element is present, the standard is
whether apprehension would be aroused in the mind of a reasonable
person.  Moreover, the Plaintiff must be aware of Defendant’s
(threatening) conduct at the time it occurs.
 Remember: Regarding imminent contact, It is enough that one is so close to
striking distance that he can reach the other almost at once, or that he can make
the weapon ready for discharge in a very short interval of time.
 See- Western Union v. Hill, establishes apparent ability in assault, could one
actually commit an unconsented offensive touching?

False Imprisonment-

 False imprisonment is:

o the unconsented, intentional confinement within fixed boundaries as a
result of the defendant’s unlawful use of force, threat of force, or assertion
of legal authority. 
 The elements which the plaintiff must prove to make out a prima facie case of
false imprisonment are:
o Intent to confine, established by:
 Purpose - the subjective desire to confine or
 Knowledge - "substantial certainty" that a particular confinement
will occur or
 Transferred intent
o Unconsented detention within boundaries fixed by the defendant
 Consent Morgan v. Greewaldt- P voluntary signing of consent-to-
treatment form precluded her suit against those treating her for
psychiatric problems
o Apparent lack of a reasonable exit
o Use of unreasonable force, threat of force, or assertion of legal authority
by the defendant (in field and at gun point not to move this is false
Imprisonment)
o Harm to the plaintiff or knowledge by the plaintiff of the confinement
  See- Bird v. Jones, Where one was not allowed to go to a certain area of
racetrack. Exclusion from a place does not constitute actual confinement
 See- Morales v. Lee, Lady is threatened to have police called at Dr office is she
leaves. Rule future force is not enough threat to prove false imprisonment.
 See- Enright v. Groves, leash law case. Rule is that one who is imprisoned for a
reason which is not unlawful, has a case for false imprisonment.
 See- Johnson v. Barnes and Nobles, Citizens arrest considered false imprisonment
because of strict rules regarding claim, they didn’t see misdemeanor and was not
breach of peace.

Intentional or Reckless Infliction of Severe Emotional Distress-

 Generally, a case of intentional or reckless infliction of severe emotional distress

is one in which the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!” (utterly intolerable in a civilized society)
 By including recklessness as well as intent, the tort of outrage encompasses a
broader range of actions than the other intentional torts
 The elements which the plaintiff must prove to make out a prima facie case of
intentional or reckless infliction of severe emotional distress are:
o Intent (purpose or knowledge) to cause emotional distress or recklessness
with respect thereto
o Extreme and outrageous conduct
 Conduct must completely violate human dignity
o The must be a causal connection between the wrongful conduct and
the emotional distress
o Resulting severe emotional distress
 Four Markers of Outrage (i.e., factors courts look at):
1. Abusing position or power by using a position of dominance
2. Taking advantage of a plaintiff known to be vulnerable
3. Repeating offensive acts when the plaintiff cannot avoid the defendant’s
behavior
4. Committing acts of physical violence or threatening violence of serious
economic harm to a person or property in which the plaintiff is known to
have a special interest
 Emotional distress is defined as any of the following;
o Fright and shock at the time of the incident
o Humiliation (due to disfigurement or disability)
o Unhappiness and depression over the inability to lead ones prior life
o Anxiety about the future
o Anger
 Ways to Recover
o As a parasitic claim (involving physical injury)
 o As one element of recovery in an action for certain non-physical tort
injury torts other than the “tort of outrage” or negligence infliction
o Intentional or reckless infliction of severe emotional distress (IIED)
o Negligent infliction of severe emotional distress (NIED)
 Damages
o Parasitic damages: mental suffering for a physical injury
o Emotional Distress: compensation for emotional distress not related to
physical injury
 IIED is the only tort that requires proof of harm or damages
 Extreme and Outrageous conduct must be beyond decency of a civilized society.
Very demanding standard for two reasons:
o To assure genuineness of the claim.
o To focus scope of liability, that is to separate the trifling inconvenience
from a serious wrong.
 Insulting words rarely constitute extreme and outrageous behavior.
o See- Slocum v. Food Fair, where lady is told “you stink to me” and that is
not sufficient for extreme and outrageous behavior. Insulting language,
even if profane, generally will not support an outrage cause of action. The
test is whether the D’s conduct would cause severe emotion distress.
 ReS 46 regarding by standers:
o If it is a family member present during an assault or battery one may have
IIED claim
o If it is another they may have to show evidence of actual bodily harm to
have IIED claim.
 Known Sensitivities
o When one knows of another person’s hypersensitivities the court often
finds liability for insults in that case.
 Severe Emotional Distress:
o See- Harris v. Jones, where a man with a stuttering problem is made fun of
and it causes emotional distress. The attorney does not provide sufficient
evidence that the distress is severe.
o Rule stated is one must explicitly show the severe distress imposed on plt.
Must show with evidentiary particulars: i.e: Dr.’s diagnosis (not enough to
just say you experienced Severe Emotional Distress
o Journal and expert evidence is usually good to have and often necessary to
prove severe element
 Abusive conduct going beyond the trials of everyday life in a marriage or
relationship may be actionable.
o See- Feltmeier v. Feltmeier, where spousal abuse led to claim of IIED.
  There is no liability in a reasonable attempt to collect debt.
 Bystanders and Third Persons
o Recklessness may provide a theory of recovery if intent is not present
o General Rule is that to recover, the bystander (1) Must be a close relative
of the primary victim SEE SLIDES

Trespass to Land- (Real Property)

 Protects a possessor’s interest in exclusive possession of real property (land, real
estate and anything attached)
 The elements to make a prima facie case for trespass to land are:
o Intent (purpose or knowledge-substantial certainty) on the part of the
defendant to be present (or transferred intent)
o Unconsented physical presence on, under or above the land of another.
 Doesn’t have to involve your person (could be a baseball);
 MISTAKE IS NOT A DEFENSE
 Cause of action may be maintained by the possessor of the land (who can actually
sue)
o Occupant manifesting a claim of exclusive control to the world
o If no occupant, one who last ceased occupancy without intent to abandon.
o Otherwise, one who has right against all other persons to immediate
occupancy.
 Aircraft- Trespass if,
o Only if it enters into the immediate reaches of the air space next to the
land
o It interferes substantially with the other’s use and enjoyment of his land

Trespass to Chattels-(Any tangible property that is moveable or transferable; Personal Property

  the intentionalinterference with the right of possession of personal property.  The
defendant's acts must intentionally damage the chattel, deprive the possessor of its
use for a substantial period of time, or totally dispossess the chattel from the
victim
 Intentional interference with personal property
o Minor interference: Trespass to Chattels
 o Major interference: Conversion
 Prima Facie Elements for Trespass to Chattels
o Intent (purpose or knowledge) to affect the chattel (or transferred intent)
o Minor interference with the plaintiffs possessory interest in chattel by:
1) Dispossession:
a) Taking a chattel from the possession of another without
consent
b) Obtaining possession of a chattel through fraud or duress
c) Barring the possesors access to a chattel
d) Destroying a chattel while it is in another’s possession
e) Taking the chattel into the custody of the law
2) Use
3) Intermeddling (physical contact)
o In the absence of dispossession, (must) prove of damages in the form
of:
1) Substantial loss of use
2) Impairment of condition, quality or value
 See- Compuserve v. Cyber Promos, Unsolicited email ads clogging Compuserve
equipment, was found to be trespass to chattels

Conversion- “an intentional exercise of dominion and control over a chattel which so seriously interferes
with the right of another to control it that the actor may justly be required to pay the other the full value of the
chattel.”

 Conversion is found when a trespass is so severe or serious that the other is

required to pay the full value of the chattel
o To determine seriousness these factors are considered:
1) The extent and duration of the actors exercise of dominion or
control
2) The actors intent to assert a right in fact inconsistent with the
others right of control
3) The actors good faith
4) The extent and duration of the resulting interference with the
others right of control
5) The harm done to the chattel
6) The inconvenience and expense caused to the other.
 See- Zaslow v. Kroenert, where furniture was removed and placed in storage was
not conversion because: 1. D’s asserted no claim of ownership 2. Warned of
action 3. Furnished location and how to access (told where and how to retrieve) 4.
P never made a demand for the property back (not required if stolen by thief)
 o The moving of the property amounted to intermeddling and could recover
actual damages.
 Overlap between Dispossession and Conversion may arise
 Conversion by bailees
o There is no liability for:
1) Receiving without notice from trespasser
2) Re-delivering without notice to trespasser
3) Re-delivering to the true owner
o Liability is found where:
1) Receiving with notice
2) Re-delivering to bailor with notice of the true owners claim
o Bailees remedy when faced with adverse claims is to deposit goods with
court
 See- Russell v. Vaughan Ford, where def kept keys to try and get a sale, was
found as conversion because it was done in bad faith and a stiff penalty to end the
use of the practice. Irrelevant owner had another set of keys
o Owner only has to demand the property back and nothing else

Defense to Intentional Torts-See Mastering Torts

 Self-defense
 Definition: Anyone other than an aggressor who anticipates immediate physical
harm may use reasonable force in self-defense (Aggressor cannot assert S-D)
o Reasonably mistaken belief is permissible, but unreasonably mistaken
belief is not permissible.
o Reasonable force: One may use only such force as is necessary to repel or
deter the harm in question.
 As far as deadly force, one is not privileged to use deadly force
when one is not threatened with loss of life or serious bodily harm.
Otherwise, deadly force is permissible.
 Retreat before use of force in self defense may be required before
force may be used, unless the attack occurs in one's dwelling.
 Excessive force is unreasonable, and one may be liable for inflicting
it.
 Provocation does not invoke the privilege, especially that
only of a verbal nature.
 Unlawful arrest may invoke the privilege.
 One may use what otherwise might be considered false
imprisonment or assault as a self-defense under certain
circumstances.
 Defense of third persons
o Anyone
o who believes force is necessary to protect another,
 o may use reasonable force to do so
o There is a split authority as to whether a reasonable mistake
 Arrest and detention
o Shopkeeper's defense of privilege
 A shopkeeper may temp detain
 In or near the store
 One reasonably suspected of theft
 For purposes of investigation
 A reasonable Mistake does not destroy privilege
 A parallel “investigation privilege” may be invoked by non-
shopkeepers
o A person may detain another person under the doctrine of citizens' arrest if
(MD rule):
 If the detainee has committed a felony, in the presence of the
detainer or not, and the detainer has probable cause to believe that
the detainee committed it, or
 The detainee committed a misdemeanor amounting to a breach of
the peace in the presence of the detainer.
 Defense of property
o A possessor may use reasonable, non-deadly force to defend property
o Effect of Mistake
 A reasonable mistake as to the necessity or degree of force does not
destroy the privilege.
 Mistake as to whether the P’s is privileged to interfere with
possession destroys the privilege
 EXCEPTION: Entry into an occupied dwelling may justify the use
of deadly force to repel the intrusion.
 Though one may post a sign warning a potential trespasser of
infliction of bodily harm should he choose to trespass, such a sign
does not release the owner from liability if he uses deadly force
against a trespasser
 One may not indirectly do in one's absence what one could not do in
person to repel an intrusion to property. See Katko v. Briney
(spring gun case) and

 recapture of chattels
o Elements
 A possessor wrongfully
 Dispossessed by fraud or force
 May use reasonable, non-deadly force to recapture the chattel
 If there is prompt discovery and fresh pursuit
o Once property is stolen, you may not use any force to reclaim it.
 EXCEPTION: Hot pursuit to recover goods is permissible.
o Effect of Mistake
 Any mistake destroys the privilege
 Consent-
 o Valid consent- bars liability and recovery plaintiff has to prove that act
was unconsented. (except trespass to land-shown as affirmative defense)
 actual consent- consent in fact (Yes I consent!)
 Bars action even if it is not communicated to the defendant
 apparent consent- consent based on the appearance of objective
manifestations.
 Reasonable person would have understood the P’s conduct
to indicate willingness (i.e Failure to reject)
 implied consent- no consent at all; a policy determination that the
invasion should not be actionable. That in the realm of real life
some things are implied as consensual.
o Consent based on Mistake Resulting from Fraud by the Defendant
 If the mistake concerned:
 The nature of the invasion
 The harm reasonably to be expected or
 The facts that made the invasion harmful or offensive, the
mistake was called fraud in the factum and the consent was
vitiated (destroyed), if but only if the mistake was known to
the defendant
 If the mistake went to:
 A collateral matter (plaintiff’s reasons for consenting), the
mistake is called fraud in the inducement and was deemed
irrelevant; the consent was valid.(Pg. 145)
 Modern Rule (consent based on mistake)
 Any mistake by the plaintiff as to a material fact, that is
known to the defendant, vitiates consent
o Consent (not effective) under duress
 Force against P or P family member
 Economic duress not enough to vacate consent
 Public and Private Necessity-
o Public Necessity
 Anyone
 Is completely privileged
 to use reasonable force
 Which is actually or apparently necessary
 To avoid an imminent risk greater legally recognized harm
 To the community or many persons
 Reasonable mistake does not destroy the privilege
o Private Necessity
 Same as public necessity, except:
 The actions benefit only one or a few people
 Actor is responsible for damages
 If the plaintiff resists the assertion of the privilege, the
privilege becomes absolute, and no further compensation is
 required by the Def for the harm reasonably inflicted
thereafter.

Negligence-
 Negligence- Breach of a duty to exercise reasonable care under the
circumstances.

 General Elements of Negligence:

o Duty:
1. General Rule: The risk reasonably to be perceived, defines the
duty to be obeyed.
 See- Palsgraf
2. Duty balancing tests:
 See- Nussbaum v. Lacopo where there was no forseeable
risk of harm because all golfers occasionally hook a shot
and in most cases it will not harm anyone.
o The risk needs only be of sufficient weight or
moment
 See- Gulf Refining (board throw causes explosion and
massive fire)
o May apply if the risk is unlikely and doesn’t
not necessarily have to be more than 50%
chance. Remote possibility is not included.
Reasonable care under the circumstances. If
one distributes a dangerous commodity extra
precautions are necessary(gas container etc.)
 See- US v. Carroll Towing
o Rule: The Learned Hand balancing test. Burden,
loss, probability
o B(Burden of defendant to avoid risk) <
L(gravity of loss) x P(probability of threatened
harm)
 B<LP
 Conduct is negligent if the burden of
prevention is outweighed by the cost of the
loss times the probability of the harm.
 See- B&Q Railroad
 o S
o Reasonable Person Standard:
1. Factfinder Determination
 By the trier of fact, based on the facts of the particular case
 Case-by case determination
o Sometimes inconsistent results but allows the
decision to take into account numerous factual
variables that may be ignored by more rigid rule
o After the fact determination—def is offered no
advance warning of precisely what conduct is
expected
2. Judge-Made Standards
 By judicial decision, as a matter of law b/c of a problem of
recurring nature-gives jury a clear notice of what conduct
is expected and leads to consistent results
o Factors of reasonableness may be too numerous
or variable to adequately be taken into account by
a hard-and-fast rule
3. Legislatively Determined Standards
 By legislation expressly or implicitly providing for civil
liability
4. Judicially declared Standards based on Legislation
 By a court relying upon legislation not expressly or
implicitly providing for civil liability

o Exceptions:
o Emergency Rule:
 Evidence of an emergency does not
change the standard of care.  Instead, the
emergency condition is merely one factor
in determining the reasonable character of
the defendant’s choice of action
 The general rule on emergencies allows
the finder of fact to consider the
emergency situation when determining
whether the actor’s conduct was
reasonable
 If reasonable minds can differ as to the
preferred course of action in an
emergency, a Defendant who makes a
reasonable choice will not be held liable
for having failed to select what an expert
or jury might later decide was the best
course.
 Hindsight is 20/20
  Doctrine applies no matter what the source
of the emergency unless the person
seeking to invoke the doctrine caused the
emergency. 
o Physical Disabilities
 Physical disability/handicap does not
change the standard of care, but is a
relevant circumstance that may be
considered by the fact finder.
 The conduct of an actor with a physical
disability is negligent only if it does not
conform to that of a reasonably careful
person of the same disability.
 The conduct of an actor during a period of
sudden incapacitation or loss of
consciousness resulting from physical
illness is negligent only if the sudden
incapacitation or loss of consciousness
was reasonable foreseeable to the actor.
 A person who is intoxicated or under the
influence of intoxicating liquor is held to
the same standard of care as a sober
person.
o Religious Beliefs
 The reasonable person test applies. The
actor’s religious beliefs are a relevant
factor that may be considered, together
with other evidence, by the fact finder.
o Children
 A child must exercise the degree of care
that would be observed by children of
similar age, intelligence and experience
under the same or similar circumstances.
 May be set by statute or state’s common
law
 Exception: to general and NC rules
o that a child will be held to
an adult standard of care
“when the child is engaging
in a dangerous activity that
is characteristically
undertaken by adults

 North Carolina Rule of 7’s

  There is a conclusive presumption
that children younger than 7 are
incapable of unreasonable conduct.
 There is a presumption that
children aged 7 to 14 are incapable
of unreasonable conduct, but the
presumption may be rebutted by
proof that the child in fact had the
capacity.
 Above age 14 there is a
presumption of capacity, but the
presumption may be rebutted by
proof that the child lacked the
ability to act as one of his or her
age, capacity, discretion,
knowledge and experience would
have acted under similar
circumstances.
 Restatement 3rd of Torts
o Child of less than five
years of age is incapable of
negligence
 Attractive nuisance doctrine
 A landowner owes a duty of care
Chicago, B. & Q. R.R. Co. v. to protect
Krayenbuhl o Foreseeable child
trespassers
Turntable at Railroad
o From dangers of which the
landowner knows or has
reason to know
(foreseeable dangers), and
o The landowner has reason
to think that a child of
tender years will not be
able to protect himself from
the danger.
o Mental Deficiencies:
 Not a defense to negligence
 May be considered in contributory
negligence.
 As between two parties place the
burden of loss on the one who
caused it.
 Avoid fictitious claims
o Superior Skills or knowledge
 A person with superior skills, training or
expertise must exercise those abilities.
 Professionals:
 Unless he represents that he has
greater or less skill or knowledge,
one who undertakes to render
services in the practice of
profession or trade is required to
exercise the skill and knowledge
normally possessed by members of
the profession in good standard
 Imposed on both people who really
are professionals and those who
pretend to be professionals.
 Require expert witnesses to show
what the standard of professional
care is.
 A simple mistake isn’t enough for
the liability of a professional.
 Professionals not expected to know
everything. Just what an ordinary
person in the profession would.
 Legal Malpractice:
 Owe a duty to:
o Clients (caution—it is very
easy to create informally an
attorney-client
o Prospective clients
o Non-clients in certain
circumstances
 Attorney must use reasonable
standard of care.
 Must show that but for the
negligence the plaintiff would have
won.
o Unexcused Violation of a Statute:
1. Negligence Per Se:
 Some states hold that an unexcused violation of statute is
negligence per se (negligence “in itself”). The unexcused
violation conclusively establishes that the defendant
breached a duty of reasonable care to the plaintiff; the
only issues remaining for the jury are causation, defenses,
and damages.
 If found satisfies both the requirement for duty and breach.
2. Prima Facie Negligence:
  Other states hold that proof of a violation of a standard-
setting statute is prima facie negligence. The evidence of
the violation raises a presumption of negligence, and if
the presumption is not rebutted by proof of an excuse or
other evidence of reasonable care, a breach of duty is
established, in which case, again, the only issues
remaining for the jury are causation, defenses, and
damages.
3. Some Evidence of Negligence:
 A few states take the position that proof of a violation of a
standard-setting statute is only some evidence of
negligence which the jury can either accept or reject.
Thus, even after the violation is established, the jury must
still decide the question of negligence, as well as issues
related to causation, defenses, and damages
o A statute (regulation/ordinance) establishes a tort duty if:
1. The legislature expressly says so in the statute itself.
2. In the absence of express creation of a tort duty by the
legislature, a court may nevertheless hold that the statute creates
a tort duty if:
 violation of the statute results in injury to a member of the
class of persons intended to be protected by the
legislation, and
 the harm is of the kind which the statute or regulation was
enacted to prevent.
o Excuse of a Violation
 An actor’s violation of a statute is excused and not
negligent if:

o (a) the violation is reasonable because of the

actor’s childhood, physical disability, or physical
incapacitation;

o (b) the actor exercises reasonable care in

attempting to comply with the statute;

o (c) the actor neither knows nor should know of

the factual circumstances that render the statute
applicable;

o (d) the actor’s violation of the statute is due to the

confusing way in which the requirements of the
statute are presented to the public; or
 o (e) the actor’s compliance with the statute would
involve a greater risk of physical harm to that
person or to others than noncompliance.

 Proving Negligence

o One must show prove negligence by a preponderance of the evidence

o Generally burden of proof is on plaintiff

 Custom-

o Custom does not determine reasonableness

 Conformation to custom creates an

inference of reasonable behavior

 Departure from custom raises an inference

of unreasonableness

 See- Hooper (Tug case) and Low v. Price

Park where cars transmission was stolen

 Direct Evidence-

o Evidence of the fact in questions

 Circumstantial Evidence-

o Evidence which the fact in question may be

inferred

 Constructive Notice-

 Such notice as is implied or

imputed by law. Notice with which
a person is charged by reason of
the nature of the thing to be
noticed.

 Constructive notice is established

by evidence that the danger existed
so long that it should have been
discovered through the exercise of
reasonable care.
  Considerations
 Relevant
Considerations:
 •Discoloration or
Alteration
 •Proximity
(employee)
 •Opportunity to
Discover
 •Absence of
Inspection
 •Prior Occurrences

 Actual Notice-

 Proof that the defendant was aware

of the condition that caused injury

 See- Goddard and Anjou (Banana

peel cases)

 Premises Liability-

o Traditional Approach-

 A possessor of land is subject to liability

for physical harm caused to his invitees by
a condition on the land if, but only if, he:

 knows or by the exercise of

reasonable care would discover the
condition, and should realize that it
involves an unreasonable risk of
harm to such invitees, and
 should expect that they will not
discover or realize the danger, or
will fail to protect themselves
against it, and
 fails to exercise reasonable care to
protect them against the danger.

 the plaintiff is required to prove a grocery

store caused a substance, matter, or item to
be on the floor; the store operator had
actual knowledge of its presence [Actual
 Notice]; or the substance, matter, or item
had been on the floor so long that the store
operator should have been aware of the
condition [Constructive Notice]

o Mode of Operation-

 If a defendants mode of operation makes

injury foreseeable, the failure to take
precautions may give rise to liability, even
in absence of notice of the specific
condition which caused harm to plaintiff.
 The plaintiff’s burden to prove notice is
not eliminated. Instead, the plaintiff
satisfies the notice requirement if he
establishes that an injury was attributable
to a reasonably foreseeable dangerous
condition on the owner’s premises that is
related to the owner’s self-service mode of
operation.
 The plaintiff, under this approach, is still
required to prove that the defendant failed
to take reasonable measures
commensurate with the risks involved with
self-service mode of operation to prevent
injury to invitees and bears the burden of
persuading the jury that the defendant
acted unreasonably.

o Burden Shifting
 When a plaintiff proves that an injury
occurred resulting from a premise hazard
or a transitory foreign substance in a self-
service store, a rebuttable presumption of
negligence arises. The burden then shifts
to the defendant to show by the greater
weight of evidence that it exercised
reasonable care in the maintenance of the
premises under the circumstances.

o Recurrent Risk
 An owner that is aware of the existence of
a recurrent condition that poses a potential
danger to invitees may not ignore that
knowledge and fail reasonably to respond
 to the foreseeable danger of the likelihood
of a recurrence of the condition.

o Res Ipsa Loquitur Evidence-

 Plaintiff normally must plead facts showing specific
conduct giving rise to the harm.
 Res ipsa loquitur is one kind of circumstantial evidence
from which breach of duty and causationmay be inferred.

 Elements:

o The event giving rise to the harm must be of the

type which does not ordinarily occur in the
absence of negligence.

o There must be other facts which make it fair to

conclude that the defendant was a legal cause of
the event giving rise to the injuries.

 Considerations:
o Control of or responsibility for the instrumentality
o Superior knowledge of or access to the facts

 3 Procedural View or Res Ipsa

o Permissible inference (majority)

o Presumption that shifts the burden of going

forward with evidence

o Presumption that shifts the burden of persuasion

 Permissible Inference
o Gets plaintiff past summary judgment and jury
will be permitted (but not required) to infer
negligence
o Plaintiff has burden of production and persuasion
o Directed verdict not permitted
 Presumption that shifts the burden of going forward
with evidence
o Defendant must introduce some evidence to rebut
and jury must find for plaintiff if defendant fails
to do so.
 Presumption that shifts the burden of persuasion
 o Defendant must prove by a preponderance of the
evidence that the injury was not caused by the
defendant’s negligence.

 Jury Instructions from Mobil

o You are instructed that you may infer negligence

by a party but are not compelled to do so, if you
find that the character of the accident is such that
it would ordinarily not happen in the absence of
negligence and if you find that the instrumentality
causing the accident was under the management
and control of the party at the time the negligence,
if any, causing the accident probably occurred.

 See- Imig v. Beck (tow truck case)

o Res Ipsa vs. Negligence Per Se

 Res Ipsa-
o Creates inference orshifts burden of production or
persuasion –does not conclusively establish any
elements of a negligence cause of action

 Negligence Per Se-

o Conclusively establishes that the defendant
breached a duty of reasonable care to the plaintiff;
the only issues remaining for the jury are
causation, defenses, and damages.

 Causation

o Factual Causation
 A factual inquiry into whether the defendant’s conduct
precipitated the injury. In other words, the plaintiff must
prove not merely that he or she suffered harm sometime
after the defendant’s negligent act occurred but that the
harm was caused in fact by the defendant’s conduct.

o Proximate Causation
 A policy inquiry into whether it is fair to impose liability
on a defendant whose conduct was a factual cause.

 Factual Causation
o the plaintiff has the burden of proof and persuasion and hence must
prove that the defendant’s conduct more probably than not was the cause
of the harm suffered.

o A negligent act or omission is a cause-in-fact of the injury if the

negligent act or omission is a “substantial factor” in bringing about the
injury.

o “But for” test

 “but for” the defendants negligence, harm wouldn’t have

occurred

o Independently sufficient

 If two or more causes bring about harm but either one

alone would have caused the same result (20 senators
stab Caesar)

o Otherwise Substantial

 was the defendants negligence a substantial factor in

causing damage to the plaintiff
o Conduct is a “substantial factor” if it was:
 Indispensable (“but for” the defendant’s
conduct the harm would not have
occurred)
o See- Anderson case where two fires burned down
a house.

o See Reynold and Kramer cases

 A negligent act or omission is a cause-in-fact of the
injury if the negligent act or omission is a “substantial
factor” in bringing about the injury.
o Kramerarticulates an evidentiary rule –the
evidence must show that more likely than notthe
defendant’s acts were a substantial factor

o Reynoldsdescribes what constitutes a “substantial

factor” –a defendant’s conduct can never be a
substantial factor unless the chances of harm to
the plaintiff have been multiplied; ordinarily, the
chances for harm must be multiplied to the point
where they make an indispensible
 o See- Advances Group 400

 A finding of factual causation cannot rest on

speculation.

 Loss of Chance Doctrine

o This doctrine allows a plaintiff to recover damages by showing that the
defendant was a substantial factor in causing the plaintiff to lose a
significant chance of escaping the harm in question (e.g., death,
paralysis, loss of a limb, etc.).

o Some states reject this doctrine

o See- Mastuyama where negligent medical care reduced chance of

survival

 Multiple Fault and Alternative Liability

o The burden of proof on factual causation shifts to the defendants, if:
1. Each is shown to have acted tortiously;
2. The actual wrongdoer is one of the small number of defendants
before the court; and
3. The nature of the accident makes it impossible for the plaintiff to
prove causation

o Each defendant is subject to full liability for the plaintiff’s injuries,

absent proof of lack of causation.

 Market Share Liability

o California version: If a DES-daughter joins in an action the
manufacturers of a “substantial share” of the DES her mother could have
ingested, each defendant will be liable for the part of the judgment
proportional to its share of the market, unless that defendant
demonstrates that it could not have made the dosages which caused the
plaintiff’s injuries.
o New York version: 1) manufacturers’ shares are calculated on the basis
of a national market; 2) a defendant who marketed DES for use by
pregnant women cannot escape liability by proving that it did not make
the dosages consumed by the plaintiff’s mother; and 3) the plaintiff’s
recovery is limited to a percentage of her losses equivalent to the
percentage of the national market represented by the defendants in the
case.

 Concerted Action Liability

o Civil Conspiracy (concerted action by agreement)

 o Aiding-and-Abetting (concerted action by substantial assistance)

 Both give rise to joint and several liability

o Civil Conspiracy
1. An agreement between two or more persons
2. To do (1) an unlawful act, or (2) a lawful act in an unlawful
manner
3. Harm cause by the act of a party to the agreement
4. Done in furtherance of the common scheme
 Agreement –tacit or explicit –is the key distinguishing
factor of civil conspiracy.
 A conspirator is liable for acts done in furtherance of, or
within the scope of, the conspiracy.

o Aiding-and-Abetting
1. A wrongful act by the principal causing injury
2. General awareness by the defendant of his or her role in the
overall illegal activity
3. Substantial assistance

 One who assists a tortuous act is liable for reasonably

foreseeable acts done in connection with it

o Considerations:
 Nature of the act encouraged
 Amount of assistance
 Defendant’s presence or absence at the
time
 Defendant’s relation to the tortfeasor
 Defendant’s state of mind
 Duration of the assistance
 Proximate Causation
o Is an Inquiry into the Fairness of Imposing Liability
o Is a Subset of Factual Causation
 Language:
o Directness and Remoteness (Natural and
Continuous Sequence)

o Foreseeability

o Result within the Risk (Did the Negligence “Run

Its Course”?)

o Normality and Bizarreness

o The Two Models of Proximate Cause
1. Direct Causation
 Liability is Imposed for Any Harm Directly Resulting
From the Defendant’s Tortious Conduct, Regardless How
Unforeseeable, So Long As It is Not Attributable to a
Superseding Cause.
2. Foreseeability
 Liability is Limited to Foreseeable Results.
 Wagon Mound No. 1
 Harm of a type that could not have been
foreseen by the defendant is not
proximately caused by the defendant’s
negligence.
 Wagon Mound No. 2
 The foreseeability of a remote possibility
of the harm may be sufficient to establish
proximate causation, particularly if the
gravity of the threatened harm is great and
the cost of adequate precautions is
minimal.
 McCahill v. New York Transp. Co.
 The defendant takes the plaintiff “as is.” If
any personal injury was foreseeable, the
defendant is deemed to have proximately
caused all personal injuries that result,
even if those losses were unforeseeable.
 Merhi v. Becker
 [N]o matter how one characterizes the
exact nature of Becker’s action in harming
the plaintiff, the jury could reasonably
have found that it constituted an instance
of the general kind of harm that the
defendant’s negligence would cause, i.e.,
harm to patrons from inadequately
deterred raucous, violent conduct.
o Result within the Risk
 An actor is not liable for harm when the tortious aspect of
the actor’s conduct did not increase the risk of harm.
o Intervening and Superseding Causes
 Intervening Cause:
o A force that comes into play after the defendant’s
tortious conduct and contributes to production of
the harm
 Superseding Cause:
o An intervening force of the type that cuts off the
defendant’s liability
  If either the intervening cause or the
ultimate harm is foreseeable, the
defendant’s liability is not superseded.
 Exceptions:
 Liability is superseded by a
foreseeable intervening cause, if
the defendant’s conduct neither
created nor increased the riskof
harm.
 Even if the ultimate harm is
foreseeable, liability is superseded
by intervention of an unforeseeable
intentionally tortious or criminal
act.
 The Rescue Doctrine
o Requirements:
1. a risk of imminent peril to the person or (perhaps) property of
another and
2. an act of intervention in response to the peril by the purported
rescuer.
o In addition, if the action is against the creator of the peril, the plaintiff
must establish that the peril resulted from the creator’s tortious conduct.
 Shifting Responsibility
o An omission ordinarily does not break the chain of proximate causation.
o When the initial tortfeasor has done everything possible to avoid the
harm, or if the omission is unforeseeable, responsibility may shift and
the tortfeasor will not be liable for subsequent losses.
 Relevant Factors:
o •Lapse of time
o •Contract governing duty to act
o •Magnitude of threatened harm
o •Character and position of the third-party
 Ability to Act
 Knowledge of Danger
o •Likelihood the third-party will act
 Expense
 Inconvenience
 Insulation from liability
 Relationship to plaintiff
o