Author: Michael P.
School: Rutgers- Newark

Professor: Professor Bell


(3) Types of Torts-

1. Negligence

a. duty

b. breach

c. causation

d. injury

2. Strict Liability

3. Intentional Harm


I. NEGLIGENCE: failure to exercise due care under the circumstances

(D did not intend to bring about certain result, but has merely behaved carelessly)


A. Development of Fault Liability

To establish prima facie case of negligence:

  • An act or omission by a D
  • Duty: to exercise due, reasonable care to conform to a standard of conduct so as to avoid unreasonable risks to others. The D must have a duty to P not to create an unreasonable risk.
  • Breach of the duty by D
  • Causation: relationship between D’s conduct and P’s harm (actual and proximate)
  • Injury: an actual damage must be shown; one may recover for nominal damages

Hammontree v. Jenner:

D had past history of epileptic seizures. After 14 years without a seizure, one occurred causing him to have a car accident in which P was injured. D had a valid driver’s license and the authorities knew of his condition. P sued on strict liability.


Held: – Strict liability is not an appropriate theory for recovery when sudden illness renders an automobile driver unconscious.

-The theory of negligence is adequate for auto accidents since drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, no negligence is proven.


B. The Central Concept

1. Standard of Care: the degree of care which a reasonably prudent person should

exercise to guard against probable danger.

Degree of duty depends on

  • lawful act
  • harm must be reasonably foreseeable
  • BPL formula
  • Risk of harm must be reasonable
  • Custom


Brown v. Kendall

D’s dog and P’s dog were fighting. D repeatedly struck the dogs with a stick to separate them, but accidentally hit P in the eye.


Issue: Is there liability for injuries that are inadvertent and unintentional?


Rule: No. D committed a lawful act and was not at fault. If unintentional (without fault) harm then not recovery. Fault is the standard for liability. One is liable for damages resulting from actions conducted in a negligent or careless manner. No fault if the act in which D was engaged at the time of incident was necessary and thus lawful, and while committing this act he exercised ordinary care (extraordinary care is not the normal standard) and too precautions.


Adams v. Bullock

P (12 year old) was electrocuted when the eight foot long wire he was arraying struck the overhead wire of the D’s trolley.


Rule: a duty exists to adopt all reasonable precautions to minimize possible peril. A party is not negligent for not providing protection against an unforeseeable, extraordinary injury that would be extremely difficult to prevent. Harm must be reasonably foreseeable.

In determining degree of care, the courts have used B<PL-If the burden of taking precaution is less than the probability of the harm and resulting injury then there is negligence. If the burden is more, then there is no negligence.

B= burden of adequate precautions on society

P= probability of accident occurring

L= gravity of resulting injury (pain and suffering, injure, loss of caring)


When considering negligence cases, courts consider:

  • prudent foreseeability
  • practicality of taking precautions
  • frequency of similar accidents
  • passage of time
  • D’s awareness of surrounding environment


U.S. v. Carroll Towing

-P’s barge broke loose from its moorings and sunk because of employee of D’s negligence in leaving the barge unattended for 21 hours. At the time, barges were constantly being towed in and out of the harbor and it was during full tide of war activity. P sued for damages and D claimed P was contributorily negligent for not having employee aboard.


Held: P’s employee was contributorily negligent in being ahore.

Barge owner’s burden (B) was less than the probability that the barge would break away (P) multiplied by the gravity of resulting injury (L), therefore, barge owner is negligent.



2. Reasonable Person: the general standard of care which must be exercised is that

conduct which the average reasonable person of ordinary prudence would follow

under the same or similar circumstances.



1. Physical disabilities: standard of a reasonable person with the same physical disabilities.

2. Mental attributes: ordinary reasonable person is not deemed to have the particular mental characteristics of the D. Only applies to insanity, but not always the case.

3. Imbecility: a mental state so low that it must be considered imbecile or moronic; renderance of negligence usually impossible

4. Intoxication: D is not permitted to claim intoxication as a defense, he will be held RPP.

5. Children: held to standard expected of children of like age, intelligence, and experience except when undertaking an adult activity (driving). Most courts that use conclusive presumptions do so for children under 7 and commonly also employ a rebuttable presumption that children between 7 and 14 are incapable of negligent behavior.

6. Emergency doctrine: when a person is faced with a sudden situation where he had not time to think or deliberate, or caused the person to be reasonably disturbed then the person must make a speedy decision without taking into consideration alternative course. People in such circumstances are held to a standard of a reasonably prudent person in an emergency situation.

7. Professionals: doctors, lawyers are held to the standard of their professions.


C. The Roles of Judges and Juries

When the dangers and necessary precautions are clear and obvious, judges may determine the standard of conduct as a matter of law.


Baltimore and Ohio Railroad v. Goodman

-D truck driver’s view of tracks was obstructed as he crossed railroad tracks he was hit by an oncoming train.


Holding: D was contributorily negligent. A person who has failed to exercise reasonable care to avoid an accident is not entitled to recover damages from the other party.


Note: Although ordinary questions of due care are left to the jury to decide, when the standard of conduct is clear it should be laid down once and for all by the court. When one cannot see whether an train is coming or not, the standard is the stop, look and listen rule. (not good, no questions of due care are left to jury).

Pokora v. Wabash

-P hit by train after not getting out of car to stop, look and listen. His view was obstructed. There was a possibility that a train would have crossed by the time he got back to his car.


Rule: unless reasonable minds could not differ on the standard of care which measure actions of P and D, the jury would decide. Failure to get out of a vehicle and look before crossing a railroad track is not contributory negligence as a matter of law. The duty varies with circumstances P should be given the chance to let the jury decide the extent to which negligence contributed to accident.


1. Role of Custom: where the customary conduct was followed such conformity may be introduced as evidence of reasonable care. However, custom is merely evidence of the standard of care owed, the test is still whether the average reasonable person would have so acted under the circumstances.


Trimarko v. Klein

-P tenant was badly cut when he fell through the glass door that enclosed the tub in his apartment. Custom was to use shatter proof glass to meet accepted safety standards.


Rule: Evidence of business custom can be used to indicate D’s proper standard of care. Custom does have to be universal but it is enough to define will and show that D had knowledge of it and negligently ignored it. Evidence of custom is not conclusive, but evidence of conformity to custom may show due care and evidence of failure to follow custom may show failure to use reasonable care. In deciding on the evidence, jury decides on the reasonableness of the behavior (whether a reasonable person would adhere to it). Other factors are cost of the adherence, ready availability of necessary materials, and whether previous standard was disregarded by new one.


2. Role of Statutes: some standards of care are defined by statutes. There are generally two views.


Negligence Per se – majority view which finds violation of a statute as a conclusive presumption of negligence.

  • Statutes do not advocate standard of care
  • Compliance with a statue is not always enough to vacate negligence
  • Violation is excused if:

-violation is safer and reasonable (Tedla)

-statutory purpose does not include the harm that occurred (Dehaen)

-licensing statute

  • Violation of statutory duty is excused if compliance would be more dangerous than noncompliance
  • Statutory purpose – when harm is different than what the statute intended, courts are unwilling to apply statute.


Martin v. Herzog

-P’s husband was killed when the buggy he was driving at night without lights (in violation of statute) collided with D car which was driving over the center line.


Rule: unexcused failure to perform a statutory duty constitutes negligence per se, which can be prima facie evidence of negligence. P was found contributorily negligent by violating statute.

Note: In most states, violation of a statute establishes prima facie case of negligence shifting the burden of proof and in others only evidence of negligence shifting the burden of production.

Evidence of negligence: minority view that an unexcused violation of a statute is only evidence of negligence for the jury to determine.



1. Violation is safer:

Tedla v. Ellman

-Ps were walking with backs to traffic (on left side of highway) in violation of statute and were hit by a car. There was heavy traffic on the right side of the road, whereas traffic was light on the left side.


Rule: It is not negligence as a matter of law for one to violate a statute, if by doing so he is likely to prevent rather than cause the harm which is the statute’s purpose to avoid.

2. Statutory purpose does not include harm that occurred. To invoke a violation of a statute as evidence of negligence, P must show that that the injury sustained was of the type the statute was intended to prevent.

3. Licensing Statutes: generally not used to set standards of care. The purpose of such statutes are to protect the public from unskilled persons. If that is the purpose, P must prove that D lacked required skill – in effect, proving negligence.

4. Compliance with statute may not exculpate negligence.


D. Proof of Negligence


Three types of proof:


  • Real Evidence: documentary evidence
  • Actual Notice: a direct positive knowledge of fact or information sufficient to put a reasonable prudent person on notice of such fact.
  • Direct Evidence: eyewitness
  • Circumstantial Evidence: create an inference of what happened.

-constructive evidence

-Res Ipsa Loquitor

-Mode of Operation


1. Constructive notice: circumstantial evidence giving rise to negligence. Must be visible and apparent and must exist for a sufficient time prior to accident: knowing of the danger, or have known of the danger, which D has control over and takes no steps to remedy the situation.


Negri v. Stop and Shop

-P slipped and fell in D’s store and alleges that broken jars of baby food on the floor were the cause of her fall. Evidence showed that the food was dirty, that no jar had broken within 20 minutes prior to the accident, and that the floor had been cleaned 50 minutes and two hours before the accident.


Rule: A prima facie case of negligence may be established by circumstantial evidence that a party did not act to remedy a potentially hazardous condition of which the party had constructive notice. The court said there is no reason to believe that circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by the jars which had fallen a sufficient length of time prior to the accident to peril D to discover and remedy the condition. Thus, it should have been left to the jury to decide if D had constructive notice.


Gordon v. American Museum of Natural History

-P slipped and fell on D’s steps. P blamed fall on a slip of wax paper from concession stand contracted by D and which D failed to discover and remove.


Rule: General awareness that litter may be present is not sufficient enough to charge owner with constructive notice. To constitute “constructive notice" a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit D’s employees to discover and remedy it. (Negri) In this case, there is not evidence which indicates that anyone including P observed the piece of white paper prior to the fall nor did anyone describe the paper to be dirty, which would have been an indication that it had been present for some time. Thus, paper could have been deposited there minutes or seconds before the accident.


2. Mode of Operation: Ps not required to prove actual or constructive notice because proprietor (knows danger of his own business) could reasonably anticipate that hazardous conditions would regularly arise.

3. Res Ipsa Loquitur: (the thing speaks for itself) RIL is a rebuttable presumption of negligence that is invoked when parties, especially P, don’t know what caused the injuries and when D has better access to evidence concerning the cause of injury. NOTE: RIL is used to establish negligence, and can and should be treated separately from causation (but not always). Also, RIL presumes negligence. Important: RIL is used to establish that D had to be negligent, unless he can disprove it. But when there is more than one D, a problem arises when the facts show that not all D could have been negligent, but rather only one had to be negligent (Ybarra).


Three elements of res ipsa loquitur

  • The accident must be of a kind which ordinarily does not occur in the absence of negligence.
  • Must be caused by an agency or instrumentality within the exclusive control of D.
  • Must not have been due to any voluntary action or contribution on the part of P.


Byrne v. Boadle

-P struck by barrel of flour from D’s shop which deals in flour although P did not see where the barrel came from, a witness confirmed.


Held: Case can go to jury simply by showing that there was an accident and it was caused by the barrel. It is only necessary that reasonable persons would say that more likely than not there was negligence. The falling barrel is prima facie evidence of negligence. D was in custody of the barrel and is responsible for the acts of his servants. If there are any facts inconsistent with negligence, D must prove them.


Anderson v. Service Merchandise Co.

-P was hit by a light fixture when it fell 16 feet from the ceiling of a store. Sylvania (D) was contracted to service and maintain the lighting fixtures and could not do anything without store owner (D) approval. D employees during the year had changed lamps.


Holding: An inference of negligence exists that renders summary judgement invalid. Reversed in part and remanded for further proceedings. Since a light fixture does not fall from a ceiling without negligence, res ipsa loquituris applicable. Even if Sylvania was negligent, it would not be responsible since Service Merchandise had exclusive control over independent contractors and over its employees. SM also had a duty to exercise reasonable care for the protection of customers. Court acknowledged that this situation is decided case by case, sometimes it is a question of facts and sometimes a question of law.

  • Rebuttable presumption of negligence: burden of production of evidence shifts to D if 3 conditions are met. If D sufficiently rebuts RIL, burden shifts back to P.
  • RIL can be applied to two or more D even though only one was negligent if they were all involved with the activities surrounding the injury and it is difficult to pinpoint the persons who actually caused the injury.
  • RIL and Medical Malpractice: RIL applies to all Ds who have control over the instrumentalities which may cause injuries to P while unconscious. The Doctrine of Respondeat Superior applies in medical cases where liability is imputed to the surgeon as a result of the negligence of his aids and assistants.


Ybarra v. Spangard (departure from the rule of exclusive control)

-P consulted D, who diagnosed appendicitis and arranged to have an appendectomy to be performed at hospital owned by another D. Prior to the operation, P was wheeled into the operating room by D, a nurse, and his body was adjusted on the table by D, another doctor, who pulled P to the head of the operating table and laid him back against two hard objects at the top of his shoulders. P awoke the next morning attended by D and another nurse. P felt sharp pain between his neck and right shoulder which spread to his lower right arm, although he had never suffered pain or injury there. P’s condition worsened to paralysis.


Issue: Could the trial court have used the theory of res ipsa loquitur in these circumstances where P received injuries while unconscious?


Holding: Yes. This doctrine is sometimes uncertain in injury from medical treatment, but it is not fair that in this case because patient was unconscious that it does not apply. If we do not apply this doctrine then P might not recover for damages. Since P was rendered unconscious to receive medical treatment, those entrusted with his care have the burden of explaining. Every D who had custody of P had a duty of ordinary care to make sure he was not unnecessarily injured. Employer is liable for conduct of its employees and under respondeat superior, a doctor is liable for negligence of assistants. Requirements 1 and 3 are easily met in this case. In terms of second requirement, each D had within its control one or more instrumentalities by which P may have been injured. D contends that there is no showing of which instrument or whose instrument caused the injury. But it is unreasonable to expect P, who had been rendered unconscious to identify the negligent D or the instrument. It is enough that P shows injuries resulted from external force.

Note: this rule prevents the “smoking out of evidence" policy used to escape liability by members of the same profession. The flexibility of exclusive is only excepted in medical cases.

E. Medical Malpractice


A. Standard of care (Robbins case)

  • set by med custom
  • P must bring expert witness to establish standard of care (except when negligence is obvious to lay person)
  • D must meet minimum standard of skill and knowledge commonly possessed by members of the profession in good standing
  • Two main standards: Local and National

Local standard: a familiarity local standard of care is sufficient and can be shown by study, experience, or both.


National standard: is permissable where the national standard of care is the same as the standard of D medical community. Commonly applies when the physician is a specialist and medical education becomes more uniform.

B. P usually needs an expert witness because of “conspiracy of silence"

C. Physicians judged by reasonable prudent physician standard which allows custom to set the standard.


Jones v. O’Young

-P husband had an accident nd while at hospital he developed an infectious disease in the fractured leg. Doctors then amputated the leg and P sued for malpractice contending that because of the malpractice, his leg needed to be amputated. P brought expert witness to stand who was board certified in infectious diseases and internal medicine, but D moved to bar witness testimony from trial since he did not specialize in same area of medicine as D.


Issue: Does a witness have to specialize in the same field as D to testify regarding standard of care?


Holding: No. The court upheld the decision in Purtill regarding the requirements necessary to demonstrate expert physician’s competence (1) must be licensed in school of medicine for which he testifies (2) must show that he is familiar with methods, procedures, and treatments ordinarily observed by other physicians. It is then up to the trial court to determine if the expert has demonstrated familiarity with the standard of care practiced in that field. If the court decides he is qualified, then D has the burden to prove that he is not in cross-examination.

Connors v. University Ass. In Obstetrics & Gynecology

-P had undergone surgery so she could become pregnant. After surgery she lost all functions in the left leg and sued for medical malpractice. P alleged that a retractor used to keep the incision open had impinged on a nerve leading to P’s left leg. P’s expert testified as to the requisite of care that the use of the retractor required and tried to show that it had not been carefully used. D experts testified that P’s nerve was abnormally positioned and that the complication was unavoidable and not attributable to negligence. In this second trial the court charged res ipsa on three elements, but told the jury that they considered it if they wanted to they were not compelled. D appeals on error on res ipsa based on that expert testimony was given on causation and this testimony is direct evidence of the cause (no res ipsa if expert testimony). The argument is that jurors review res ipsa in that they have a common experience, but if expert is brought to substantiate inference, it does not come from common experience because of specialized medical knowledge.


Issue: Did the court err in charging res ipsa when expert testified in a medical malpractice case?


Holding: No. The expert testimony in this case was not a conclusive proof of negligence and jury could have used his testimony, if they found it credible, to reach the inference. In medical cases, we should utilize testimony in res ipsa to “bridge the gap" between the jury’s common knowledge and the uncommon knowledge of experts. The Restatement explicitly encourages that inference be supplied by evidence such as expert testimony which may indicate such an event usually does not occur without negligence. Experts share a common knowledge about whether certain types of injuries occur without negligence, and they can educate the jury with higher knowledge.

D. Informed Consent

  • Professional Rule: doctor has duty to disclose to patient all material risks involved in a medical procedure.
  • Patient Rule: Patient has the right to exercise control over her own body making an informed decision concerning whether to submit to a medical procedure.


Conditions which patient must prove to establish violation of Patient Rule

-material risk unknown to patient

-physician failed to disclose risk

-disclosure of the risk would have let a reasonable patient in P position to reject the medical procedure or school a different course of treatment. (Korman)


Materiality Test

-subjective: whether patient would have rejected procedure upon known risk

-objective: whether RPP patient would have rejected procedure upon the known risk (the court adopts objective test)


Exceptions to informing patient of risk (Korman)

-where disclosure may have detrimental effect on physical or psychological well being of the patient

-patient incapable of providing consent due to disability or infancy

-risk is so obvious or known to patient

-procedure is simple, and danger is remote

-physician does not know risk is involved


Korman v. Mallin

-P consulted physician to inquire about breast reduction surgery. He showed P videos about the procedure and discussed it with her, informing her of the risks of permanent scarring. He also gave her pamphlets to read. When she asked about the scarring, D told her “not to worry." D also failed to tell her that smoking increased her chance of scarring by 50%, even though this info. Was in the pamphlets. After surgery, P was very unhappy with the scars she retained and she sued claiming that D had negligently failed to obtain her informed consent to the surgery.


Issue: Whether D satisfied his duty of disclosure as a matter of law.


Holding: No. It is a factual question whether D’s explanation of the risk was adequate to allow a reasonable patient to make an informed and intelligent decision whether to undergo the procedure. The physician is required to explain in “lay terms" the risk and the likelihood of its occurrence. Also, physicians have a duty to respond fully to a patient’s questions concerning treatment. Third, even though P read about the 50% increase in risk from smoking, D didn’t indicate to her the probability of scarring in the first place.


Imp: physician duty of disclosure is weighted on what a reasonable patient would need to know in order to make an informed consent. (scope of disclosure is measure from P standpoint).


II. The Duty Requirement: Physical Injuries



Definition of Duty: generally it is a legal obligation owed to others to protect them from injury due to the negligence of others. Absent such legal obligation there is no duty to act. P must show that D actually had a duty not to expose P to an unreasonable risk.


Duty can be characterized in three ways:

  • Misfeasance: the doing of a proper act in a wrongful or injurious manner
  • Malfeasance: the doing of a wrongful or unlawful act (commission)
  • Nonfeasance: the total omission or failure to enter upon the performance of some distinct duty which a person had agreed to do. (omission)


Good Samaritan: common law imposed no duty for people to act as good Samaritans unless:

-special relationship (Harper)

-contractual duty (Strauss)

-by statute

-creation of risk

-assumption of risk

-business relations


Policy arguments against imposing a duty to rescue:


-moral argument: legal compulsion squelches moral intention

-political argument: states should not interfere with person’s autonomy


Duty determined by special relationship between the parties. e.g. innkeeper/guest, carrier/passenger, possessor of land who invites public, person who has custody of another where one cannot protect himself.


A. Obligation to Others

1. Controlling third parties: one who takes charge of a third person who he knows or should know to be likely to cause bodily harm to others, if not controlled, is under a duty to exercise reasonable care to control the 3rd person to prevent him from doing such harm.

2. Social Relationship: no general duty to rescue – legal duty exists where there is social relationship between two individuals engaged in a social venture, or a companionship activity. If a person voluntarily initiates assistance duty to finish assistance is imposed to prevent abandonment and isolation of the vistim from aid. (Farwell)

3. Innkeepers/customers: a person has an affirmative duty to exercise care for the safety of his customers who can either be characterized as guests or invitees.


Harper v. Herman

-P was a guest in D’s boat, although the two did not previously know each other. The group decided to swimming. D was familiar with area and knew water was shallow. P asked D if he was going to swim and D responded “later." P then dove into the water and hit the bottom, severing his spinal cord and was rendered c6 quadriplegic. He sued D claiming he had a duty to warn him that the water was too shallow for diving.


Issue: Whether D, as a social host, owes a duty of care to warn guests of dangers in the water.


Holding: No. A special relationship must exist in order for a duty to be imposed on one to protect another. P and D relationship does not fall under those which qualify as special relationships – P was able to protect himself. D’s superior knowledge of the dangerous condition is insufficient to establish liability in the absence of a duty to provide protection. D also did not receive financial gain from P.

Farwell v. Keaton (Assumption to aid)

-P and D were on a social venture when P was severely beaten. D drove him around, applied ice to his head, and took him home, but then left him unconscious in a car overnight. He died three days later.

Doctor testified that had he been taken to hospital w/in thirty minutes, he would have had an 85% chance of living.


Holding: D had a duty to aid deceased. Special relation existed between parties since they were engaged in a common undertaking. An understanding exists that if one party is in danger, the other will attempt to rescue as long as he can do so without putting himself in danger. D did not run the risk of danger. D’s attempt to aid deceased established his duty of care since he did realize he should have helped.


4. Contractual Duty: where there is a detriment reliance or otherwise elements of consideration, a contractual relationship exists so as to legally impose a duty on a person to act, to prevent physical harm.

Public Policy: a public duty based on privity of contract exists to specific individuals of the community. A duty does not exist to foreseeable noncustomers (to allow liability in these cases would open the doors for mass tort claims (Strauss).

Strauss v. Belle Realty (contractual relationship)


-P tenant fell down D’s defective steps during a city blackout. D Con Edison had a contract with D landlord. P sued landlord for lack of maintainence and the utility company for negligence.


Issue: Whether D has a duty toward P for injuries from a fall on a dark stairway that could have been foreseen.


Rule: Utility company does not owe duty of care to a tenant because the utility has only contracted with the landlord. This, like the Moch case, would create unlimited liability. Foreseeability alone did not establish liability.



B. Obligations to Control the Conduct of Others


1. Duty to warn: once a person knows or should know that his patient presents a real danger to a 3rd party there is a duty to warn or otherwise take reasonable action to prevent the danger (Tarasoff). Note: there is an affirmative duty to 3rd party based on relationship with a patient (see e.e. Tarasoff – psych fails to warn of death threat)


Criteria to determine duty to control conduct of others:

  • Primary purpose of the relationship
  • Professional qualifications


Arguments against disclosing danger to others:

  • Warning to police may give rise to arrest under false pretense
  • Warning to victim can cause personal adverse effects which may be unjustified
  • Breach of confidentiality harms doctor/patient relationship
  • Difficulty of predicting violent tendencies and possible harm


Tarasoff v. Regents of the U of California (duty to warn)


-Doctors at D university hospital knew that a mental patient they were releasing intended to kill Tarasoff. Ds did not warn P of danger and she was murdered.


Rule: Because of a psychologist’s special relationship with a patient, he has a duty to warn a foreseeable, identifiable third person of the patient’s violent intentions, even if the psychologist has no special relationship with the foreseeable victim. D argues therapists cannot accurately predict violent behavior, yet if serious danger of violence is determined or should have been, the therapist has a duty to exercise reasonable care to protect the foreseeable victims. D’s claim of risk of damaging professional relationship with patient does not negate duty to protect threatened victim. This risk is within the public interest.


Exception to duty to warn:


Vince v. Wilson (negligence)

-P was seriously injured in a car accident with Wilson’s grandnephew. P sued D who bought car for her grandnephew, for the tort of negligent entrustment.


Rule: A person who knowingly purchases a car for an incompetent driver may be liable for negligent entrustment (liability from the combined negligence of both the negligence in trusting the incompetent driver with the car and the negligent operation of the car).

D Wilson knew nephew had failed driving test several times and that he abused drugs and alcohol.



C. Landowners and Occupiers


Trespasser: One who enters into or remains on property without the consent of the owner. An owner’s duty is to refrain from willful, wanton or intentional injury. An owner is not liable for injuries to a trespasser for failure to exercise reasonable care:

  • to put land in a condition which is reasonably safe for trespassers
  • to carry on activities so as not to endanger trespassers


Rule: a landowner has duty if he is aware of the trespasser’s existence and if conditions existing are artificial or static (e.g., quicksand, stream, entrapment or non-natural device), highly dangerous and concealed, provided that the owner has knowledge of conditions.


Child trespasser: a landowner is liable for injuries to children trespassing caused by artificial conditions


  • Where the landowner knows or has reason to know that children are likely to trespass where the conditions exist
  • Where the landowner knows or has reason to know and which he realized or should realize will involve unreasonable risk of death or serious bodily harm to children.
  • Where the children because of their immaturity do not realize the danger involved.
  • Where utility of maintenance is slight in relation to the burden of eliminating the risk compared to the risk to the children.
  • Owner fails to exercise reasonable care to eliminate the danger to protect the children.


Licensee: one who comes on the land with landowner’s consent, for his own purposes (social guests, excluding business guests). Owner has a duty to warn and disclose of concealed dangers known to owner and unknown to the guest (e.g., broken faucet, pit fall). There is no duty to inspect for defect or known defects since licensee takes property as the owner.


Invitee: a person who is permitted to enter with the owner’s consent, express or implied, where the premises are open to the public and/or business related. In addition to the duties owed to the licensee, the owner owes a duty to exercise due care and reasonable safe conditions to an invitee. There is an affirmative duty to inspect and correct dangers, thus the highest degree of protection. Two types of invitees: commercial or open to the public.


Carter v. Kinney

-Ds offered bible study at their home. P slipped on patch of ice in D driveway and broke his leg. D had shoveled snow night before but didn’t know ice had formed overnight.


Issue: Whether P was an invitee or a licensee


Holding: Summary judgement for D affirmed since D’s conduct conforms with the standard of care P’s status imposes on him. P was a licensee and not an invitee because D did not expect any benefit from him, and did not open the study to the public, which would imply the warranty of safety. An owner owes a licensee the duty of exercising reasonable care to make safe dangers of which the owner is aware. The licensee takes the property as the possessor uses it and does not expect that they will be prepared for his reception.


Rejection of categories: California has elected to abolish the distinctions between invitees, licensee, and trespassers, and hold everyone to a standard of reasonable care. The primary goals are to disallow confusion, make the landowner no longer immune, make claims easier for P, avoid litigation costs, reasonable people do not act according to categories, and landowner has the control of instrumentality.

Rowland v. Christian

-P (social guest) was injured when a bathroom faucet handle cracked and severed some of P’s tendons and nerves.


Issue: Whether D owes duty to P to warn of the concealed dangerous condition which she was aware of.

Rule: A landowner or occupier may be deemed negligent unless he makes a reasonable effort to avoid harm to persons on his property whether such persons are invitees, licensees or trespassers. The test that should be applied is whether in the management of his property the occupier has acted as a reasonable person in view of the possibility of harm to others no matter what the P status is. Thus where the occupier of land is aware of a condition that might cause harm to others and this condition is not obvious and knows that a person will come into contact with it the jury can reasonably conclude that the failure to warn or to repair constitutes negligence.

Williams v. Cunningham Drug – merchants don’t have same duties as landlords

-P was shopping at D store, which was located in high crime area, when an armed robbery occurred. P was shot when he ran out of store. Store’s security guard was sick and no replacement was sent at store’s request. P alleges negligence on grounds that D failed to exercise reasonable care to protect its customers and did not provide armed security guards to intercede once robbery was in progress.


Issue: Whether store owner has a duty to protect customers by providing armed visible security guards to protect against criminal third parties.


Holding: No. There is no established policy requiring commercial businesses to provide police protection. D is not the insurer of safety of his invitees, he does not have that degree of control. It is difficult to define the standard of care since D cannot foresee in advance the extent of his duty or the crimes that will occur. It is also not fair to shift the duty of public protection from the government to the business owner.


D. Intrafamilial Duties


  • Early common law barred spouses from suing each other for personal injury. Married Women’s Acts gave women the right to own property and to sue over property and contract disputes. Thus, immunity from tort law that previously existed among spousal relationships was slowly eliminated.
  • Over time, the law began to permit children to sue their parents for intentional torts. – negligence is still difficult.
  • Even though parental immunity has been abrogated, parents cannot be sued for parental supervision.


Zikely v. Zikely

-Minor P sued his mother for turning on faucet in bathtub and leaving the room. Infant wandered into bathroom and got into tub, suffering severe burns.


Holding: The proximate cause of the injury was the negligent supervision of the infant, and a parent cannot be held negligent for supervision of his child. Court held that there are few child accidents that can be prevented and that better supervision would prevent many. Yet deviation from Holodook makes it too easy to find parents liable.

III. The Duty Requirement: Nonphysical Harm


A. Emotional Harm


D’s conduct must cause P’s emotional distress that results in physical injury.

*Special situations: erroneous report of relative’s death or mishandling of relative’s corpse

P must be within Zone of Danger: a bystander at a safe distance who sees D negligently injure another cannot recover damages for own distress.

Modern Trend allows recovery based on foreseeability even if P is not in Zone of Danger as long as:

  • P and person injured are closely related
  • P was present at scene of injury
  • P personally observed or perceived event


Restrictive approach of emotional harm:

  • Old View: some physical contact was required to give D reasonable ground for declaring defense, and to deter fraudulent claims
  • Modern View: moves away from requirement of physical injury, however, physical injury manifestations from emotional disturbance are still required (KAC).


Expansive approach: there is no physical harm necessary, nor is the requirement of sudden occurrences (Gammon).

-Pros of non-impact rule: duty of the court to resolve disputes based on factual differences; causation is a matter of fact; jury can handle factual issues.

-Cons of non-impact rule: flood of litigation; causation is merely speculative; paid experts creates biased testimony



K.A.C. v. Benson

-D gynecologist was infected with HIV and performed two examinations on P with open sores on his hands. He was wearing two pairs of gloves, as he was advised to do by S.B.M.E. but later, they informed him that a minimal risk had still existed. He contacted 336 patients, none of whom contracted HIV.


Holding: To establish negligent infliction of emotional distress, P must show she was (1) within a zone of danger of physical impact; (2) reasonably feared her own safety; (3) suffered severe emotional distress with attendant physical manifestations. Since P was not actually exposed to HIV, she was not placed in “apparent, imminent peril." A remote possibility of of personal peril is insufficient to place P within a zone of danger.

Gammon v. Osteopathic Hospital (exception to zone of danger)

-P’s father died and D hospital mistakenly sent bag with a patient’s severed leg to P’s home instead of deceased’s belongings. P, thinking leg was his father’s suffered severe emotional distress resulting in nightmares and problems in personal relationships.


Holding: Court abandoned requirement that P show physical impact, objective manifestation, underlying or accompanying tort, or special circumstance to assert a claim of emotional distress without physical injury. A person is entitled to protection of his psychic well-being as much as his physical well-being. D should have foreseen that its actions had a probability of causing emotional distress. The exceptional vulnerability of a family of recent decedents supports the finding that D should have foreseen the resulting mental distress, and it also eases the court’s fear of fraudulent claims.


Portee v. Jaffee (test for bystander recovery)

-P watched her son die from being trapped between an elevator door and wall in D’s apartment building. P became severely distressed, self- destructive, an attempted suicide.


Issue: Whether D can be liable for negligently causing mental distress where D’s conduct creates neither the risk nor the occurrence of physical harm but where emotional injury is foreseeable.


Holding: Yes. Courts in other jurisdictions which have found liability in similar circumstances have followed the test set forth in Dillon v. Legg, which expanded the zone of danger by identifying three factors to determine whether an emotional injury would be compensable because foreseeable. The Dillon factors: (1) Whether P was located near scene of accident; (2) whether P directly observed accident; (3) whether P and victim were closely related. Porteefactors: (1) The death or serious injury of another caused by D’s negligence; (2) a marital or intimate relationship between P and injured person; (3) observation of the death or injury at the scene of the accident; (4) severity of physical injury causing emotional distress. (court adopted fourth requirement)

Johnson v. Jamaica Hospital

-P’s newborn daughter was abducted from D hospital. Child was recovered 4 ½ months later. Ps sued for emotional distress brought about by D negligence.


Issue: Whether Ps may recover damages for mental distress they suffered as a result of direct injury inflicted upon their daughter by D’s breach of duty of care to her.


Holding: No. Ds owed no duty of care to parents. Court refused to recognize P’s contention that it should have been foreseeable to D that any injury to their child would cause P’s mental distress. This foreseeability does not establish a duty from D to P. In the absence of duty, there is no liability. To permit P recovery would be to invite “open-ended liability for indirect emotional injury suffered by families resulting from negligent care or treatment of the very young, elderly, or incapacitated.


Loss of Consortium: loss of society, companionship, advice and comfort.

1. Either spouse can recover for the loss of the other’s services and consortium.

2. There must be a complete loss of companionship and intercourse with the injured spouse for a definite period of time.

3. Limited to legally married couple only

4. Parent can recover for the loss of consortium of a child, but a child cannot recover loss of consortium for a parent.

5. Contributory negligence reduces liability for loss of consortium.

E. Wrongful Birth and Wrongful Life

Wrongful birth: A claim by parents that, because of the D negligence, they give birth to a child with a genetic or other cogenital defect.

Wrongful life: A claim by a child born with a genetic defect, who was born as a result of D’s negligence. (public policy – court cannot make judgement on whether a child would have been better off if never born)


General Rule: Parents may recover for emotional distress and for physical harm caused by that emotional distress, offset by whatever emotional benefits they may derive from the existence of their first child, offset by any benefit that may be derived by the wrongful life, and offset by cost to raise non-handicap chid.


When wrongfulness of a birth is due to a physician’s negligence, parents can recover for extraordinary expense incurred in consequence of the disorder, however, a child will normally not be able to recover for a physician’s negligence if parents recovered already.


Greco v. U.S.

D doctor negligently failed to diagnose P’s unborn baby with disabling fetal defects, thereby denying mother’s right to abort. She sued for “wrongful birth" and for “wrongful life."


Holding: Court does not recognize claim for wrongful life because it cannot make judgement on whether child would have been better off if never born. Szekeres distinguished between a healthy and severely deformed child noting the extraordinary economic and emotional expenditure. Those who do not wish to undertake these burdens have the right, under Roe, to abort. D argued that no distinction can be made between a healthy and handicapped child. The court also holds that denying P’s claim would be groundlessly excepting one type of malpractice from negligence liability. P can recover extraordinary damages for damages for the lifetime of the child or until the child is independent. Emotional distress granted in that it is foreseeable that a mother who is denied her right to abort a deformed fetus will suffer emotional distress for life.


Economic Harm – People Express Airlines, Inc v.Consolidated Rail Corp



B. CAUSATION– A causal relationship (actual and causal) must exist between the defendant’s conduct and the plaintiff’s harm. If D did not cause the injury in fact, he is not liable. But even if D did cause the injury in fact, he is not liable if he was not the proximate cause.

C. Cause in Fact


Sine Qua Non (But for) Rule: If the injury to P would not have happened “but for" the act or omission of D, such conduct is the cause in fact of the injury.

Proof of causation – P has the burden to prove that, more likely than not, D was a substantial factor in bringing about result.


Stubbs v. City of Rochester – Plaintiff’s burden

-D city negligently intermingled water supply, crossing drinking water with contaminated water used for firefighting. P contracted typhoid and alleged that it was caused by contaminated water. P’s experts agreed typhoid could be caused by the water and statistics showed a greater number of typhoid cases reported after water was intermingled.


Holding: P submitted sufficient evidence that D’s negligence caused injury, allowing a reasonable inference of causation to be drawn. P need only prove with reasonable certainty the D was cause in fact. Case should have gone to a jury.

Substantial Factor Test: where two events concur to cause harm, and either one would be sufficient to cause substantially that same harm, causation requirement is met.


Wrongful Death: heirs of decedent bring this claim. There must be a close relationship.


Loss of Opportunity: P must prove, more probably than not, that D reduced the opportunity of avoiding harm.


Falcon v. Memorial Hospital

-P died after giving birth. Expert testified P had a 37.5% chance of survival had D administered an IV line before giving anesthesia.


Holding: P may show that the asserted negligence of D caused harm by establishing that it is more probable than not that D reduced the opportunity to avoid harm.

Mauro v. Raymark Industries

-P was exposed to asbestos during his job. He was later tested and told that he had a significant exposure to asbestos and there was “some evidence that this exposure may increase the development of lung cancer." He had been examined every six months since.


Holding: There is no evidence of the likelihood that P will contract cancer. Traditional, prevailing legal principles do not allow causes of actions for significant but unquantified enhanced risk of future injury. Should P contract the disease in the future, his action for damages will not be precluded by the statute of limitations or the single controversy doctrine (they have been removed). P may recover for medical surveillance and for emotional distress. Thus P can bring claim in future if he gets disease, but P can’t recover for prospective damages.


Multiple Defendants:


Joint and Several Liability: Where there are multiple defendants, P can recover 100% from any D. Ds can later sue each other and untangle facts.


Several Liability: P takes loss; Ds only liable for their share of damages.

Summers v. Tice

-P was struck by a bullet discharged from the gun of one of two negligent hunters. P cannot identify the responsible D.


Rule: Ds are joint tortfeasors and each is jointly and severely liable, even though only one inflicted the injury. The alternative liability rule used here shifts the burden of causation to Ds; each must absolve himself. Both Ds must be negligent to apply this rule.


Market Share Liability: In cases where there are multiple Ds in a commercial enterprise, some courts have required all producers who are unable to prove their noninvolvement to pay in proportion to their percentage of their market share.


Hymowitz v. Eli Lilly & Co.

-Ps alleged they were injured by prenatal exposure to the drug DES. There were about 300 manufacturers who had produced DES. DES has a single chemical composition and was marketed generically.


Rule: A DES P may recover against a DES manufacturer when identification of the producer of the specific drug that caused the injury is impossible. Neither alternative liability or concerted action apply in this case. Market share theory based upon a national market is best used here. D will not be held liable if it shows it did not market DES for pregnancy use. D is not exempt from liability if he appears not to have caused a particular P’s injury.


Conley v. Boyle Drug Co.

Holding: The market should be as narrowly defined as the evidence in a given case allows. Thus, where it can be determined that the DES ingested by the mother was purchased from a particular pharmacy, that pharmacy should be considered the relevant market. Market share liability should be a theory of last resort, after the P has shown due diligence in trying to find the specific source of DES.


B. Proximate Cause – assuming cause in fact, whether there is still a reason why P shouldn’t be permitted to proceed.

2 Harms: Forseeability – was negligence forseeable by D

Directis P’s harm a direct result from D

4 Standard Situations:

Unexpected Plaintiff

Amateur Rescuers – danger invites rescue

Unexpected Manner

Third Party Misconduct – does not break the chain of causation

Unexpected Extent

Secondary Harm – two incidents to the same victim (original injurier is liable unless


Unexpected Type:

Unexpected Victim (forseeability)

Palsgraff v. Long Island Railroad

P was standing on railroad platform when man carrying a package attempted to board the moving train. A train guard pulled the passenger aboard while another guard pushed him from behind, causing his package to fall on the tracks. The package, wrapped in newspaper, contained fireworks and exploded. The shock to the explosion caused some scales at the other end of the platform to fall and strike P.

Holding: D’s negligence toward a third person may not be the basis of recovery for P, since no risk of harm to P was foreseeable.


Petition of Kingsman Transit Co. (foreseeable injuries with unforeseeable extent of injury)

-empoloyees of D negligently fastened a boat. The boat broke loose due to pressure from floating ice and floated downstream. The ship hit another ship and they both crashed into a city drawbridge, clogging up the river and causing floods on P’s property.


Rule: This case distinguished from Palsgraff since a ship insecurely moored is a known danger. Foreseeability of danger is necessary to render conduct negligent. Although the danger was foreseeable, the severe consequences were beyond foreseeability. The occurrence of consequences greater than those foreseen does not make the conduct less culpable.

Unexpected Extent (Direct) – harm that is different than foreseen due to some prexisting condition or subsequent circumstance.

Steinhauser v. Hertz Corp. (preexisting condition)

-P, who had a history of mental disturbances, was involved in a car accident which triggered a schizophrenic reaction to be aggravated.


Rule: D is liable for the full extent of the injury when a slight harm aggravates a preexisting condition and produces a substantial injury (thin skull rule). D takes the P as he finds him. That accident was a precipitating factor in the occurrence of the mental disorder will help to mitigate damages – but is not a defense that would bar recovery.


Pridham v. Cash & Carry Bldg. Center

-P, injured accident caused by D’s negligence, died in ambulence when driver suffered heart attack.


Rule: Original tortfeasor is liable for additional harm from medical care rendered because of original injury. The negligence of original tortfeasor was proximate cause of subsequent injuries. The medical treatment is not a superceding factor unless care is grossly negligent.

In re Polemis (Directness Test)

-D chartered ship from P and while loading, a plank of wood fell into hold, sparked a fire, and destroyed vessel.


Rule: Distinguishing foreseeability from directness. If D foresees the type of harm regardless of the extent, D is liable (direct result). If D foresees a different type of harm, D is not liable (foreseeability). D in this could have foreseen other types of damage resulting from the fallen plank.

Unexpected Manner (direct)– although the resulting harm might have been expected, the manner of its

occurrence justifies exculpating D. Thus, intervening parties will not excuse liability unless the action by the intervening parties breaks the causal link (by negligence or intentional) and thus supercedes D’s proximate causal connection.

McLaughlin v. Mine Safety Third Party Misconduct

-P was burned when D’s heating blocks were applied to P’s body by a nurse as improperly instructed by a fireman.


Rule: gross negligence in the use of a product is a superceding cause, relieving D of its liability for negligence. Fireman is an unexpected intervening cause breaking the causal link. Since the result was not foreseeable to D, cause was superceding.

Unexpected Type (forseeability) –


Wagonmound (Foreseeability Test)

-P’s wharf was damaged when oil negligently discharged from D’s ship spread across water and later caught fire when molten metal dropped by D ignited cotton waste floating on the surface.


Rule: Even though the injury may result from a negligent act, liability is limited to the risk reasonably foreseen. Court reject directness test.

Note: Culpability cannot reasonably be determined without taking into account foreseeability. A line must be drawn somewhere to limit liability. But when injury has already occurred, cost must be borne by either the innocent or the guilty. The directness test best serves to impose liability on those who can absorb the liability, have insurance, and can spread the cost.



D. The Plaintiff’s Fault

Contributory Negligence


Traditional View: contributory negligence is a bar to P’s recovery. P has a duty of care to herself, thus if P has been careless, P will be barred from recovery. D has the burden of proving contributory negligence.

Exceptions to contributory negligence:

-mental handicap – standard reduces to a capacity based standard which reduces the standard of care.

-D reckless conduct

-statutes designed to protect Ps against their negligence

Last Clear Chance: permits P to recover despite his own contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.


(distinguished from)

Avoidable Consequences: even if the accident was entirely D’s fault, P’s recovery can be reduced by failure to exercise due care to mitigate harm done.

Anticipatory avoidable: holds that where P can anticipate the danger (wearing seatbelts), then D would not be liable for % of fault of P in not avoiding the harm.


Assumption of Risk – arises when P voluntarily encounters a known danger and by his conduct expressly or impliedly consents to take the risk of danger.

a. Express Agreements – parties agree in advance that D need not exercise due care for P’s


– Traditionally enforced for recreational activities if there is adequate

disclosure of a risk.

1. Exceptions which invalidate exculpatory (CA Tunkle factors) from Dalury:

2. Business is engaged in performing a public service.

3. Business is the type suitable for public regulation.

4. Contracts of adhesion – no meaningful choice or otherwise unconscionable

5. P has no choice about the terms of contract, and P is placed under D’s control.

6. Where the purchaser is given no opportunity to pay protection against negligence.



Comparative Negligence: A substantial majority of states now permit a contributorily negligent P to recover a percentive of his damages under some type of comparative negligence system. The trier of fact weighs P’s negligence against that of D and reduces P’s damages accordingly.

Pure comparative negligence: allows P to recover a percentage of his damages even where his own negligence exceeds that of D.

Partial comparative negligence: recovery denied to Ps whose own negligence equals or exceeds that of D. (if P is 90% at fault and D 10%, P may still recover 10% of his damages).


Dalury v. S-K-I

-P collided with a metal pole when skiing at D’s resort. When P purchased a season pass, he signed an exculpatory clause accepting and assuming the risk of injury or property damages and releasing D of all liability.


Holding: An exculpatory agreement is void for violation of public policy unless it is freely made; it is between parties of equal bargaining position; there is no social interest with which it interferes. The court needed to consider the last one in this case, reasoning that whether or not D provides an essential public service does not resolve the public policy question in the recreational sports context. D’s resort is open to the public and D advertises and invites visitors. When a substantial amount of sales transactions (tickets) takes place as a result of the seller’s general invitation, a legitimate public service arises. D owes its customers the same duty as any other business to keep its premises reasonably safe.

Implied Assumption of Risk – no express language or agreement indicates the intentions or understandings of the parties.


Murphy v. Steeplechase Amusement Co.

-P fell on a ride called The Flopper at an amusement park and fractured his knee cap. People generally tumbled around on this ride and P watched the ride before he got on it.


Holding: P clearly saw the danger of the ride. No additional warnings were necessary, since P could observe all risks. Thus a person who voluntarily takes part in a sport, accepts its inherent, obvious, and necessary dangers.


Daviddoff v. Metropolitan Baseball

-P attended baseball game. People behind plate were protected by screens. P was sitting by first base and got hit with a ball.


Rule: D only owed P duty of reasonable care, which D met by having the protective screens. In addition P assumed the risk of injury. P is held to know some things of common knowledge, such as that during baseball games, balls fly.

Gonzalez v. Garcia (merges assumption of risk and comp. negl.)

-P and D shared a car pool and stopped for drinks after work. D was driving P home while intoxicated. D crashed car, injuring P.


Rule: Assumption of risk does not remain as a complete bar after a state adopts comparative fault. Where there is a reasonably safe alternative available, P’s free choice of a more dangerous way is unreasonable and is bothcontributorily negligent and is an assumption of risk. They were merged because of comparative negligence standard.

Zanghi v. Niagara Frontier Trans. Comm.


Rule: Fireman and policemen cannot recover for injuries received in the normal line of duty. The conduct causing injury must be separate and apart from the conduct for which they were summoned.


Fellow servant doctrine: you cannot sue an employer if co-worker caused the harm incurred.


Worker’s Compensation: employees in hazardous jobs. Traditionally employees held to assumption of risk, but worker’s comp. Now provides recovery.


A form of no fault liability imposed on D regardless of negligence. It is based on a policy of law that the particular injured P must be given a right to recovery notwithstanding that there is no fault in the conduct of D. Strict liability does not mean absolute liability. AL does not have to prove a defect in product.


A. Doctrinal Development

Strict liability is imposed on those who engage in activities that involve serious risk of harm to others despite the use of utmost care.


1. Ultrahazardous activities:

those that are abnormal to the area, which necessarily involve a risk to persons, land, or chattels, and cannot be eliminated by the use of utmost care.


Fletcher v. Rylands 431

-Due to defect in D’s subsoil, P’s property flooded with water. Results were of no fault of P or D, but by employees of D. Unknown to D, there were old coal mine shafts under his property which they discovered during construction of a reservoir and which weakened the reservoir, permitting the flow of water onto P’s property.

Rule: where a person uses his property in a nonnatural way, or collects and keeps on property anything which may escape, resulting in damages to another’s property, is strictly liable. D can only be excused if escape was P’s fault or an act of God. Court used cattle owner example – he keeps cattle at his own peril and it is his obligation to keep them from escaping and doing mischief.

Rylands v. Fletcher

Held: a landowner who introduces onto the land that which in its natural condition was not present does so at the peril of absolute liability for and consequences.


2. Blasting Cases


Sullivan v. Dunham

-Two men used dynamite to bring a tree on D’s land. The explosion threw a piece of wood that flew from D’s land and killed P traveling on highway.


Rule: Strict liability is appropriate for injuries caused by blasting. P’s right to safety in traveling on the highway outweighs D’s right to conduct blasting on his property. D’s acts were the direct cause of P death, therefore, strict liability should apply. If the harm had been indirect, such as an injury from shock from the explosion, negligence would need to be shown.


3. Inherent Dangers


Indiana Harbor Belt Railroad v. American Cyanamid Co.

-D chemical co. was moving flammable liquid via carrier co. Soon after reaching Chicago area, leak was discovered and authorities evacuated homes and decontamination measures were taken. Railway sued manufacturer of chemical and was granted judgement on strict liability.

Rule: the leak was caused by carrier’s negligence, not by the level of chemical’s dangerousness. Carrier cannot be held strictly liable either because rerouting to avoid populated area was not practical. Since the risk could have been avoided, this is negligence.

4. Theoretical Perspectives


a. Re.2d §520 allows S.L. for abnormally dangerous activities. Six factors:

1. Whether the activity involves a high degree of risk

2. Whether the gravity of that risk is high.

3. Whether the risk can be eliminated with reasonable care.

4. Whether the activity is not a matter of common usage.

5. Whether the activity is appropriate to the place where it is being carried out.

6. Whether the value to the community is outweighed by the danger.


b. Defenses


  • Contributory Negligence: P’s negligence must have been cause of ultrahazardous activity.


  • Assumption of Risk: P must have voluntarily encountered a known danger and by his his conduct expressly or impliedly consented to the risk of danger.


  • Comparative Negligence: Some courts have been willing to reduce P’s recovery to reflect the amount that his fault contributed to injury.


  • Injury Within the Risk Created: The injury must have been within the group of rsks that made the activity ultrahazardous.









Neg A/L A/P/L


Products Liability: strict liability may be imposed on manufacturers and distributors of faulty products that cause injuries. Today there are three different approaches: negligence, warranty, strict liability.

Manufacturing Defect: When a product emerges from a manufacturing process not only different from the other products, but also more dangerous than if it had been made the way it should have been, the product may be so “unreasonably dangerous" as to be defective because of the manufacturing process.

Design Defects: When all the products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line can be found defective because of poor design.

Defective Product: a product in a “defective condition unreasonably dangerous" to users. Most courts permit P to prevail if either the product was dangerous beyond the expectation of the ordinary consumer or a less dangerous alternative or modification was economically feasible.

Factors that courts consider under the “feasible alternative" approach:

  • Usefulness and desirability of the product
  • Availability of safer alternative products
  • The dangers of the product that have been identified by the time of trial
  • Likelihood and probable seriousness of injury
  • Obviousness of the danger
  • Normal public expectation of danger (especially for established products)
  • Avoidability of injury by care in use of product (including role of instructions and warnings)
  • Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive


A. Negligence: duty to avoid foreseeable danger to others beyond the purchaser

MacPherson v. Buick Motor Co.

-Wheel manufacturer sold defective wheel to car manufacturer, who sold car to retailer, who sold to P, who was injured as a result. Evidence indicated that D could have discovered the defect by reasonable inspection.

Issue: Whether privity between the manufacturer and P is necessary for P to be allowed to recover against the manufacturer. (No.)

Rule: If it is reasonably certain that a product will place life and limb in peril if negligently made, then it is a dangerous thing and if the manufacturer can reasonably foresee that someone other than the immediate purchaser (supplier) will use it without further tests, then the manufacturer has a duty to make it carefully.

Escola v. Coke

-P waitress was injured when a bottle manufactured by D exploded in her hand. The court found negligence on res ipsa loquitor.

Rule: Strict liability should have been applied since “manufacturers ought to be absolutely liable for injuries caused to consumers by defective goods. Since the consumer is unable to closely inspect complex models, cost should be placed on manufacturer and strict liability is justified.


B. Warranty

-duty to ensure that things are carefully and property constructed. There is an implied warranty of non-defective products, especially on food. The general rule is that manufacturers are strictly liable in tort when an article is placed on the market with knowledge that it will be used without inspection for defects, and if such defects exist and cause injury. Warranty was used to get around the privity doctrine of contracts, and was a predecessor to strict liability since there was no fault necessary.

Privity: an interest in a transaction, contract, or legal action to which one is not a party arising out of a relationship with another. Before, unless the injured P was the buyer, no recovery could be had, no matter how negligent the seller’s conduct.


U.C.C. 2-315 holds that there is an implied warranty on all goods, unless expressed. (subject to unconscionability)


Greenman v. Yuba

-P bought a retailer power tool, and when he used it, a piece of wood flung up and struck him in the head. Court affirmed judgement for negligence and express warranty, but D appealed on the ground that P failed to comply with requirement that notice of alleged breech be given within a reasonable amount of time.

Rule: Warranty notice requirements should not apply where P and manufacturer have not dealt directly with one another (P probably unaware of such obligation). Sales warranties serve the purpose of to make sure manufacturers of defective products bear cost of injuries instead of injured parties.


Vandermark v. Ford Motor Co.

-P bought car from D dealer. Brakes locked and P and sister were injured. Evidence suggested manufacturing negligence, but retailer had a disclaimer.

Rule: Product liability in tort cannot be disclaimed.

C. Strict Liability

-fault regardless of due care (inherently dangerous products or products available through the market place)



  • Places liability on the party who can best prevent injury from defective products.
  • D is best cost spreader
  • D is best risk bearer
  • Need for P’s compensation



  • Inspection cannot always solve problem
  • Price increases
  • P has duty to carry insurance


Design Defects

Re.2d § 402A: One who sells any product in a defective condition unreasonably dangerous is subject to liability or physical harm caused to user of this product if:

1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if:

  • The seller is engaged in the business of selling such a product, and
  • It is expected to and does reach the user or consumer without substantial change in the condition it sold

2) The rule stated in (1) applies although:

  • The seller has exercised all possible care in the preparation and sale of his product, and
  • The consumer or user has not bought the product from or entered into a contractual relation with the seller.


Consumer expectations: a defective condition is one “not contemplated by the ultimate consumer, which will be unreasonably dangerous to him."


Open and Obvious

Risk Utility Test – if risk outweighs the utility, the product is defective.


Cronin v. J.B.E. Olson Corp.

-California court rejected “unreasonably dangerous" part of 402A (it places an added burden on P to prove product was unreasonably dangerous) and decides that P must prove a defect in the manufacture or design of the product, and that this design was the proximate cause of injury.


Barker v. Lull Engineering Co.

-California court adopts 2-prong test:

Consumer expectation test: a product may be found defective in design if P demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.


Risk benefit approach: the risk of danger inherent in the challenged design outweighs the benefits of such design. In this approach, the court considers (1) the likelihood that danger will occur, (2) mechanical feasibility of alternative design, (3) cost of improving design, (4) adverse consequences to the product in consumer resulting from alternative design (in terms of cost).

Policy effects of enforcing design defects liability:

1. restricts consumer choice

2. restricts capitalism

3. reduces research and development

4. increases price putting the product out of consumer’s financial reach


Soule v. General Motors Corp.

-P was injured in car accident when colliding car caused wheel to collapse rearward, forcing the toe pad into driving compartment, permanently injuring p’s ankle. She sues for defective product.

Holding: Consumer expectation test should not have been used, but the result was unaffected since much expert testimony was also given. Risk benefit analysis should be used (Barker), unless the facts permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users.

Campell v. GM

-P had no handle to grab onto on bus

-burden of proof should have been shifted to D to offer evidence relating to a risk benefit evaluation


Camacho v. Honda Motor Co.

-P suffered leg injuries due to motorcycle accident. P sues parties in chain of distribution claiming absence of crash bars to protect the legs made the product defective under strict liability.

Holding: Risk-benefit test is proper when determining whether a product has a design defect causing it to be in a defective condition that is unreasonably dangerous. Crashworthiness Doctrine adopted, in which a motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in an accident where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries. These manufacturers have a duty to minimize injurious effects of collision by employing common sense safety features. To reject product liability where danger may be open and obvious, dangerous design defects are encouraged. Under Ortho, consumer expectation test is inappropriate where technical information must be determined.

Jones v. Ryobi Ltd.

-P injured hand when it got caught in printing press at work. D manufacturer made the guard with a guard that automatically switched off the press if the guard is removed. Employers, however, would frequently remove the guard to increase production, which was the case here.

Rule: When a third party’s modification renders a safe product unsafe, the seller is relieved of liability even if the modification is foreseeable. Even if the distributor saw the guard missing he is not responsible because his liability is not extended to defects that were not present when the press was sold.




Daly v. General Motors Corp.

-P died after being thrown from his car when he hit highway divider due to an alleged defect in the door latch. D alleges that Daly was intoxicated and did not use shoulder harness or door lock as instructed in owner’s manual. Ps object to introduction of comparative fault evidence since action was based solely on strict liability.

Rule: Comparative fault is appropriate for use in a strict liability case. Since strict liability is not absolute liability, the manufacturer is only liable for damages that it causes. Loss should be allocated according to the percentage each contributed to the accident. P still does not have to prove that D was negligent since D is still strictly liable.



-Focuses on what the actor sought to achieve or knew would occur, rather than on his motive for acting. Intention exists if the actor had knowledge, or desires or knew with substantial certainty that certain results would follow or if the actor was recklessly involved in ultrahazardous activity.

  • Designed to protect interests we think to be important
  • Often protect mental or emotional harms
  • Prima facie case: act (volitional movement on D’s part); intent (denotes the particular means to effect result); causation (conduct of D is substantial factor in bringing about injury); injury


Punitive damages: like in negligence, punitive damages may be awarded in intentional torts. Some states have rejected punitive damages and others limit them to P’s litigation costs.


A. Assault and Battery

Re.2d § 8A: The actor desires to cause the consequence of his act, or he believes that the consequences are substantially certain to result from it.


Garret v. Dailey

-P alleged that D five-year old pulled a chair out from under her causing her to fall and break her hip. She charges battery.

Rule: D may be held liable for assault and battery even if he did not subjectively intend to cause the harm, but he knew with substantial certainty that his actions would likely cause it. Since the court found that D knew with substantial certainty that P would attempt to sit where the chair was, he had the needed intent. Minors are as liable as adults for torts with force.


Assault: the act of causing a reasonable apprehension of immediate harmful or offensive contact.


Battery: the causing of harmful or offensive contact to P with the intent to make the contact (physical).

Vosburg v. Putney

-D schoolboy kicked P in the leg and was liable for battery despite the lack of subjective intent to do harm. D was also liable for extraordinary harm that resulted because of the exacerbation of a pre-existing injury (thin skull rule).

Rule: D liable for all injury caused by wrongful acts, no matter how unforeseeable.

Transferred intent: Where D intends to commit one tort but instead commits different tort against same person, same tort against different person, or different tort against different person. i.e.: If A tried to shoot B, but instead shoots C, his intent to shoot B is transferred to C.

Negligent supervision: parent can be held liable if the child had a tendency to act in the manner that caused harm.

Cause in fact: the doer of an intentional tort will be held responsible for any harm that can be causally associated in any plausible way with his wrongdoing.


Proximate cause: damages caused by an intentional tortfeasor need not be foreseeable to be compensable.

Picard v. Barry Pontiac-Buick, Inc.

-P, disappointed with her brake work, returned for a reinspection with a camera to use for a troubleshooting report. P alleges that D spun around and lunged at her, causing permanent damage to her back. D denies grabbing P or threatening her in any way.

Rule: P proved assault by showing that she was in fear of imminent bodily injury. She also proved battery since, even if D was intended to touch the camera and not P, he failed to prove that his actions were accidental or involuntary. Therefore, his offensive contact with an object attached to or identified with P’s body constitutes battery.


B. False Imprisonment

-total obstruction and detention of P, of which he is aware, within boundaries for any length of time, with D intent to obstruct or detain P and without privilege or consent.


Lopez v. Winchell’s Donut House

-D employer interrogated P employee in back room over alleged theft.

Rule: P voluntarily consented to the confinement. There was no actual or legal intent to restrain her from leaving. She stayed because she felt obligated to defend her name. But she admits that she felt free to leave at any time.


Shoplifting detentions privileged if: (1) there is reasonable belief as to fact of theft, (2) detention is conducted in reasonable manner, (3) detention is for reasonable period of time for purpose of investigation.


Problems of shoplifting:

-arrest is by private citizens

-option to let them go or retain at own risk

-some statutes permit restraint for reasonable cause (knowledge the person has concealed product) for a reasonable time and in a reasonable manner.



C. Intentional Infliction of Emotional Distress


-physical injury or severe mental suffering resulting from emotional disturbance caused by D, who intended to cause mental suffering by his words or acts, or who had reckless disregard that harm would result. The words or acts must be extreme or outrageous, exceeding all socially acceptable standards, and must cause P serious injury.


Womack v. Eldridge

-D investigator tricked P into letting her take photo which was used without his knowledge in a sex abuse case. P in fact had nothing to do with crimes committed, he merely worked at same place as D on trial. P testified he suffered shock, distress, and fear that people would think he was a child molester.

Rule: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress absent bodily injury. Conduct was reckless or intentional

(D should have known such distress would result); the conduct offends against accepted standards of decency; there was a causal relationship between D conduct and P distress; distress was severe.


Hustler Magazine v. Falwell

-D, a well known minister was the subject of a parody in D magazine which falsely described his first sexual encounter.

Rule: To recover for the intentional infliction of emotional distress a public figure must prove actual malice with knowledge of the falsity of the statement or with reckless disregard as to its truth. The state’s interest in protecting public figures from emotional distress does not outweigh 1st Amendment protection to free speech.


D. Defenses

1. Consent:

-Consent by P to an act that would otherwise give rise to tort liability acts is a bar to action. Consent may be express or implied. There is no consent if it is brought about through mistake of fact, mistake of law, fraud, or duress.


2. Self-Defense:

One has privilege to use force where force appears reasonable necessary for protection. The force must be reasonable under the circumstances and cannot go beyond the necessity of the situation (force in retaliation not allowed). The actor has duty to retreat before using deadly force, unless it would be dangerous to retreat or the actor is in his own home. Self-defense is also not available to the aggressor.

3. Protection of Property

-Reasonably necessary force may be used in defending one’s property. Occupants are privileged to lead, pull, carry, or push intruders off premises.


Vincent v. Lake Erie Transportation Co.

-D transportation co. following P instructions moored its boat to P’s wharf to unload P’s cargo. A storm came, which prevented the boat from leaving. The boat was thrown against the dock, causing damage to the wharf. P sued to recover damages.

Rule: One who is forced by necessity to use the property of another may not do so without liability for damages caused to property. P deliberately protected ship at the wharf’s expense.



Purpose – subjective

Knowledge – subjective

Recklessness – objective/subjective

Negligence – objective