Torts Outline

Professor Pruitt

I. Battery

a. Formal Definition

-An actor is subject to liability to another for battery if 1 he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact and 2. A harmful contact with the person of the other directly or indirectly results

-offensive: 1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and 2. An offensive contact with the person of the other directly or indirectly occurs.

Elements of battery:

1. Act (assume volitional, an act of will)

2. Intent to make harmful or offensive contact or create imminent apprehension of harmful or offensive contact

3. Effect: harmful or offensive contact occurs

4. Causation

5. Harm/Damages

Generally assume it is volitional, an act of will unless (few exceptions: D was under hypnosis, involuntary muscle contraction, etc.)

INTENT: Term or Art…Intent never stands alone in your analysis. Inextricably linked to some consequence, effect, purpose.


Act (like a kick or punch) + intent (purpose or desire) to cause a harmful or offensive contact or imminent apprehension of the same.

Vosburg v. Putney

Act + unlawful act = unlawful intent = battery type intent

Garratt v. Dailey

Act (moving the chair) + substantial certainty that harmful offense contact will occur = battery type intent


Defendant escapes liability even if elements of prima facie case present

2 methods: Consensual privileges, nonconsensual privileges

Consensual Privileges

“Consent is willingness in fact for conduct to occur. It…need not be communicated to the defendant."

Subjective or consent in fact: Plaintiff’s willingness in fact for contact to occur.

Objective or apparent consent: The perception of others regarding whether plaintiff consented to the touching.

Objective or apparent consent:

O’Brien v. Cunard Steamship Co.

Plaintiff traveling to America and received vaccination. Argues that there was battery. Court ruled that no battery took place because from plaintiff’s conduct, it can be seen that she consented to the vaccination.


Subjective or Consent in Fact:

Barton v. Bee Line Inc.

Plaintiff (15 yrs. Old girl) claims that she was raped by chauffeur working for defendants. Chauffeur claims that the girl consented to the sexual intercourse. Jury awarded money to plaintiff. On appeal, the court reversed. Minors consent not used for criminal liability but for civil cases, consent should be considered, even the consent of a minor.

Doctor Patient Relationship

Bang v. Charles Miller Hospital

Patient went in to get urinary problems checked out and doctor performed an operation in which he severed patient’s spermatic cords and rendered him permanently sterile

-Both consent in fact and apparent consent can be used in this case, but parameter of the consent in question


2. To be effective, consent must be by one who has the capacity to consent or by person empowered to consent for him, and

b. to the particular conduct, or to substantially the same conduct

3. Conditional consent or consent restricted as to time area or in other respects is effective only within the limits of the condition or restriction.

4. If the actor exceeds the consent, it is not effective for the excess

5. Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act

Kennedy v. Parrot

Patient went through surgery. Doctor found something else while performing the surgery and went ahead and fixed it. In the process, doctor messed up.

-Court said there was not prima facie case for battery because patient consented

“If both patient and surgeon know that the exact condition of a patient cannot be finally and definitely diagnosed until patient is anesthetized and the incision made, the P’s consent will be construed as general in nature…And the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of sound professional judgment, determines that correct surgical procedure dictates and requires such an extension of the operation originally contemplated…"

Kennedy is not universally followed

In some states, consent inferred or presumed only in an emergency

General Rule: If doctor extends the surgery, use the balancing test in your analysis. Weigh the risks of waiting to bring the patient back to consciousness to obtain his consent, against the risks from the additional surgery.


Non-consensual defenses


In exam, ask 2 questions:

1. Was the defendant privileged to use some kind of force to defend himself?

2. If yes, what degree of force was the defendant privileged to use?

Using non-deadly force

1. An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily injury, to defend himself against unprivileged harmful or offensive conduct or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

2. Self-defense is privileged under the conditions states in subsection 1, although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself

a. by retreating or otherwise giving up a right or privilege, or

By complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.

Use of deadly force

1. Subject to the statement in subsection 3, an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that

a. the other is about to inflict upon him an intentional contact or other bodily harm, and that

b. he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force

2. The privilege stated in subsection 1 exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by

a. retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or

b. permitting the other to intrude upon or dispossess him of his dwelling place, or

c. abandoning an attempt to effect a lawful arrest.

3. The privilege stated in subsection 1 does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by

a. retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or

b. relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.


-the actor is not privileged to use any means of self-defense which is intended or likely to cause a bodily harm…in excess of that which the actor correctly or reasonably believes to be necessary for his protection. If he acting in self defense exceeds the defense, he is liable only for damages associated with excess.


Defense of others

-at common law, could defend members of one’s household, as if oneself.

-privilege now extends to total strangers


E.g. if a person sees A hitting B and comes to the aid of B and uses force against A, but then it turns out that B was the original aggressor.

Majority view: the person stepped in the shoe of B (the original aggressor) and has no privilege.

Minority view: if the person reasonably believes that the person he is aiding (B) had the privilege to use force in self defense, then the person has the privilege to use reasonable force, even if it turns out later that B was the aggressor.


Defense of Property

Katko v. Briney

Defendant setup spring gun to defend their abandoned farm house

Ct. ruled that defendants use of deadly force was excessive and found them liable

Law places higher value on life then property

Defense of Possession by force not threatening death or serious bodily harm

-An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if

Ÿ a. the intrusion is not privileged…and

Ÿ b. the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and

Ÿ c. the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.


Defense of possession by force threatening death or serious bodily harm

Ÿ The intentional infliction upon another of a harmful or offensive contact or other bodily harm b a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.

Ÿ In Katko, deadly force used but the trespassers posed not serious threat to the inhabitants of the farmhouse (farmhouse was abandoned J) so use of such force was not privileged.


Privilege of Necessity

Ploof v. Putnam: no trespass when plaintiffs went into defendant’s dock to save their lives


Vincent v. Lake Erie Transport

-The notion of qualified privilege- privilege of necessity

-qualified privilege to enter on the land of another to avoid serious harm, but this privilege is coupled with a duty to pay for whatever he breaks, damages.


II. Assault

Restatement (2d) Section 21

(1) An actor is subject to liability to another for assault if:

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.

-An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily injury.



-apprehension must be of imminent contact

-an actor’s intent to inflict some future contact and the other person’s awareness of this is not apprehension of imminent contact.

-e.g. A tells B that I will come back tomorrow and beat the hell out of you. No assault has occurred.

**Imminent does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor’s fist about to strike his nose. It means rather that there will be no significant delay.


It is not necessary that one shall be in the striking distance of the other or that weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is close to that reaching distance that he can reach the other at once or that he can make the weapon ready for discharge in a very short interval of time. Under Common Law: Present ability

Assault Test



Effect (Most Important Element)




Intent Element

Intent to cause apprehension of contact or contact itself

-Intent can be transferred

e.g. A throws a brick at B intending to hit him. C, a bystander, is put in apprehension of contact. A liable for assault on C even though A never intended to hit C.

Effect Element

Apprehension that one is about to be touched. If person has apprehension that someone else is about to be touched, no assault.

Apprehension =/ Fear

Apprehension a term of art. We don’t require that the person be afraid of the imminent contact. We only require that he be aware that such contact is coming.

e.g. A, a big football player, sees B, a little drunk guy, coming towards him with his fists closed. A is not scared of B but he knows that B is about to strike him. Assault takes place even though A had no fear.

Subjective/Objective Tests

If an act is intended to put another in apprehension of an immediate bodily contact and succeeds in doing so, the actor is subject to liability although the act would not have put a person of ordinary courage in apprehension.

Bouton v. Allstate Insurance

-court used the objective test to determine that a reasonable person will not be apprehended. This is certainly an anomaly.


III. Offensive Battery

Section 18 Battery: Offensive Contact

(1) An actor is subject to liability to another for battery if

(a) he acts intending to cause harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact and

(b) an offensive contact with the person of the other directly or indirectly results

-An act which is not done with the intention stated…does not make the actor liable to other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it, and, therefore would be negligent or reckless if the risk threatened bodily harm.

So offensive battery requires the actual intent to cause offensive contact.

Offensive contact: Objective/reasonable person test

A bodily contact is offensive if it offends a reasonable sense of personal dignity. Contact must be that which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

Fisher v. Carrousel Motor Hotel

-P African American and D snatched the plate out of his hand and stated no Ns are served in this hotel.

-Lower Ct. said no battery because no assault

-On appeal, reversed. “…it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute battery, so long as there is contact with clothing or an object closely identified with the body…"

Leichtman v. WLW Jacor Communications, Inc.

Tobacco smoke can create offensive contact

But substantial certainty intent not included


IV. False Imprisonment

Restatement (2d) Section 35

(1) An actor is subject to liability for false imprisonment if:

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor and

(b) his act directly or indirectly results in such confinement of the other, and

c) The other is conscious of the confinement OR is harmed by it.

-An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.

False Imprison Test


Intent to confine within boundaries fixed by actor

Effect: Confinement results


P conscious of confinement


Harmed by it




Effect Element (most important)

Two requirements

1. Confinement within boundaries fixed by defendant AND

2. Plaintiff is conscious of confinement or is harmed by it.

Confinement: Confinement can be by physical barriers, physical force, threats of force, duress, asserted legal authority, failure to release when duty to do so.

-Confinement maybe in a large area. Doesn’t have to be in a small area. Plaintiff might have a way out, but as long as he does not know about it, he is confined. Even if plaintiff knows about means of escaping, such means must be reasonable.


Whittaker v. Sanford

-D asked P to travel to America in his Boat. When reached America, D refused to provide small boat to P and her children to reach the shore.


Act: failure to provide boat (so omission can be considered an act)

Intent: Subjective

Effect: P confined on the large boat and conscious of it (no harms really)


Damages: Tricky P not really physically harmed but can be mental.

Main points of this case: Don’t need physical contact for FI. Failure to act can be an act (e.g. D’s failure to provide boat to P is considered act under FI test)

Restatement 2d Section 45

-Refusal to release or aid in escape

-If the actor is under a duty to release the other from confinement or to aid in such release by providing a means of escape, his refusal to do so with the intention of confining the other is a sufficient act of confinement to make him subject to liability.

Rougeau v. Firestone Tire & Rubber Co.

-P suspected of stealing and asked by the employer to stay in a room

-Two guards told not to let P leave

-Ct. said no False Imprisonment. P only in room for about 30 minutes. Guards never considered him to be confined. When P asked to leave because ill, guards let him leave.

-So no FI

-P’s silence can be considered consent.

Sindle v. New York Transit Authority

-children destroying bus property

-driver closed door and told children that he is taking them to the police station

-One child jumped out the window and bus drove over him.

-Ct. of Appeals said D can use the defense of justification (D has the burden of proof).

It is not unlawful to restrain or detain, reasonable under the circumstances and in time and manner, if done for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody.

Coblyn v. Kennedy

-old man suspected of shoplifting

-Issue 1: any genuine restraint is sufficient to constitute an imprisonment…and any demonstration of physical power which, to all appearances, can be avoided only by submission, operates effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised. If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to false imprisonment.

-Issue 2: Grounds are reasonable for detention when a reasonably prudent, cautious and intelligent person would believe they existed.

Test is objective: 1. Reasonable manner 2. Reasonable length of time 3. Reasonable belief that person has committed or attempting to commit larceny

V. Intentional Infliction of Emotional Distress (IIED)

  1. IIED Restatement 2d Section 46
    1. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results, for such bodily harm
    2. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

i. To a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

ii. To any other person who is present at the time if such distress results in bodily harm

1. Therefore for transferred intent, person must be present. For family members, physical consequences not required. For non-family members, physical consequences required.

    1. Elements of IIED

i. Act: Extreme and outrageous conduct (in Revlon it was failure to act)

ii. Intent: Intent to cause severe emotional distress or with reckless disregard for whether such distress would occur

iii. Effect: Severe emotional distress

iv. Causation: Conduct must cause the distress

v. Damages: For emotional distress and, if it occurs, bodily harm

    1. State Rubbish Collectors Association v. Siliznoff

i. D threatened P to join the association or he will beat him up and slash the tires of his truck

ii. In this case, future threatsà so no assault

iii. But ct. said no assault needed in order to establish IIED

    1. Samms v. Eccles

i. Respected married woman constantly asked for sex by D

ii. Ct. of Appeals said that D’s conduct can be considered severe and outrageous by a jury.

iii. Usual rule, “there is no harm in asking"

iv. But in this case, conduct continued for 6 months!

    1. Branda v. Sanford

i. 15 year old bus girl verbally abused by D

ii. Ct. of appeals ruled that trial ct. erred by dismissing cause of action

iii. “jury was entitled to determine considering prevailing circumstances and contemporary attitudes and Cheryl’s own susceptibility, whether conduct in question constituted extreme outrage."

    1. Comment F to Rest. 46

i. The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.

1. Branda v. Sanford– P’s age could be a factor

2. Alcorn v. Anbro Engineering, Inc.- P’s race could be a factor

    1. Context in which the conduct occurred can also matter

i. Logan v. Sears

1. Employee on the phone called P “queer"

2. No one but P heard it

3. Ct. considered this as a factor in deciding whether IIED

4. Also, D’s statement only hostile but not enough for IIED

    1. Hustler Magazine v. Falwell

i. Public figure cannot recover for IIED unless

1. Offending publication contained a false statement of fact

2. Publisher acted with actual malice

a. Knowledge of falsity or reckless disregard of truth or falsity.

    1. Failure to act can also be considered act under IIED

i. Ford v. Revlon

1. P sexually harassed by manager for long period of time

2. P used ever avenue available to solve problem

3. But no action taken for a year

4. Clear mental distress- P tired to commit suicide

5. Ct. said D responsible for IIED for their failure to take proper action

    1. Jones v. Clinton

i. Ct. considered the following in deciding whether IIED

1. Conduct at issue

2. Period of time over which it took place

3. Relation between P and D

4. D’s knowledge of P’s susceptibility to emotional distress by reason of some physical or mental peculiarity

5. Ct. applied a “nervous breakdown standard"- very harsh on P



v VI. Negligence

o Reasonable risks are acceptable. But unreasonable risks are not accepted.

o We want people to use ordinary and reasonable care to eliminate risks other than ordinary ones…

o Negligence law doesn’t expect us to be accident-free, but expects us to be reasonable prudent actors

o Until Brown, it was strict liability

o Negligence 2 meanings: 1. Title of the tort 2. Breach of duty

o Brown v. Kendall

§ D unintentionally hit P in the eye with a stick while trying to break a dog fight

§ Ct said: If the act of hitting P was unintentional on part of D, then D was not liable unless it was done in the want of exercise of care adapted to the exigency of the case and therefore such want of due care became part of P’s case and burden of proof was on P.

o Ways to establish Negligence

§ Reasonable Person Standard (RPP)

§ B<PL

§ Foreseeability

§ Violation of a statute

§ Custom

o Elements of Negligence

§ Duty

§ Breach of Duty

  • First two are mirror images of each other
  • Act of breaching duty is sometimes referred to as negligence, just as tort in its entirety/cause of action is referred to as negligence

§ Actual Cause

§ Proximate Cause

§ Harm/Damages

o Restatement 2d Section 283

§ Conduct of a reasonable man: The Standard

§ Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

o Reasonable man is not expected to be impeccable- but words reasonable man denote a person exercising those qualities of attention, knowledge, intelligence, and judgment which society requires of its members for the protection of their own interests and interests of others.

o Mental Deficiencies

§ Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.

o Section 283-children

§ If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence and experience under like circumstances.

o Section 283C- Physical Disability

§ If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.

o When applying the reasonable standard, we are reasonableness of D’s actions at the time and under the circumstances. The risk is to be evaluated as it reasonably appeared before the accident. No assessment with the benefit of hindsight based on additional knowledge.

o B<PL Test

§ B- Burden of taking the precautions + the broader social utility of the conduct which D would have to forego.

§ P- probability of accident

§ L- gravity of the resulting injury

§ If burden of taking the precaution is less than harm that results from failure to do so, it was negligent/breach of duty not to take the precaution.

§ B<PL in action

  • U.S. v. Carroll Towing

o B- having a bargee on board during day hours

o P- wartime and during day, very likely

o L- expensive cargo getting lose

o So B<PL and negligent to not have a bargee on board during day hours.

§ Restatement 2d Section 291

  • Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk [PL] is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done [B].
  • Factors considered in determining utility of actor’s conduct:

o Social value law attaches to the interests which is to be advanced or protected by the conduct

o Extent of the chance that this interest will be advanced or protected by the particular course of conduct

o Extent of the chance that this interest can be adequately advanced or protected by another, less dangerous course of conduct.

  • Factors Considered in determining magnitude of Risk

o Social value law attached to the interests which are imperiled

o Extent of chance of that actor’s conduct will cause an invasion of interest of other

o Extent of harm likely to be caused to interests imperiled

  • Washington v. LP & L

o P- probability that electricity will escape, that there will be a contact. Very low.

o L- extreme gravity of injury of contact made with wire

o B- insulating all the wires, not just P’s wires

o Conclusion: although there was a cognizable risk that the antenna stationed in the cornet of Mr. Washington’s backyard could be lowered to within dangerous proximity of power line, possibility could not be characterized as an unreasonable risk, and power company’s failure to take additional precautions against it was not negligence.

§ Foreseeability

  • Weirum v. RKO General, Inc.

o Foreseeable for station that running of competition can cause accident

o Station had duty towards P (an all vehicles at the time and Place)

o Duty: standard of care that is required, not about an affirmative duty to act, rather about the standard of care with which one must act

o How are parameters of duty established?

§ Guidance of history

§ Continually refined concepts of morals and justice

§ Convenience of rule

§ Social judgment as to where loss should fall

§ Foreseeability

o What about the teenagers who actually caused the accident?

§ Can be seen as intervening or superceding causes, but foreseeable, so does not break the chain of causation

o B<PL Analysis

§ B- social utility of such competitions is very low

§ P- probability of traffic accidents is high

§ L- great injury

o Sudden Emergency Doctrine (SED)

§ Actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who had had full opportunity to reflect.

§ The actor must have clean hands– must not have contributed to the creation of the emergency.

§ SED in action

  • Young v. Clark

o D’s car crashed into P’s car from the rear after an unknown driver brought the traffic to a sudden halt

o Ct. said SE created by the actions of an unknown driver

o D acted reasonably under the SE but still was unable to avoid the accident

o Under SED, we still expect the actor to act as a reasonable person will act in the emergency

o Violation of a Statute As the Basis for Negligence

§ 2 questions to ask:

  • Is P within the class of persons intended to be protected by the statute?
  • Is the harm that occurred within the risk intended to be protected against by the statute?

§ Three ways different handle violation of statutes cases

  • Negligence per se- majority rule
  • Rebuttable presumption of negligence
  • Some evidence

§ Negligence per se

  • Strict standard which holds that violation of a statute is negligence, period.
  • Martin v. Herzog

o P didn’t have light on his buggy in violation of a criminal statute that required lights

o “We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence itself [AKA Negligence per se]."

  • The act which constitutes violation of the statute must also be the cause of the harm

o E.g. In Martin, the act of not having the lights caused the accident.

o Brown v. Shyne

§ Unlicensed chiropractor treats P and P permanently disabled

§ P argues that D violated statute that requires physicians to be licensed

§ Ct. says that this statute does not establish negligence per se

§ Jury must find that D acted negligently before finding for P

§ “In order to show that P has been injured by the D’s breach of statutory duty, proof must be given that D in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury"

§ [1]

§ Rebuttable presumption of negligence

  • Courts see statute setting a rebuttable presumption and D can introduce evidence of due care to rebut the presumption set forth in the statute.
  • Tedla v. Ellma

o P walking on the right side of highway when statute required pedestrians to walk on left.

o Unusually heavy traffic on the left side.

o “We cannot assume reasonably that the legislature intended that a statute enacted for the preservation of human life and limb of pedestrians must be observed when observance would subject them to more imminent danger."

o Custom

§ The way an activity is habitually carried out in a trade or a community.

§ P can use custom to prove negligence and D can also use custom to show due care.

§ Custom vs. Habit

  • Habit applies to a person’s own conduct, while custom applies to community standard.

§ Custom is not definitive way to establish or defend negligence

§ Trimarco v. Klein

  • Shower glass door breaks and P injured.
  • Custom of installing shatter-proof glass doors
  • “When certain dangers have been removed by customary way of doing things safely, custom may be proved to show that D’s behavior has fallen below the required standard."
  • “Proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings and thus to guide the common sense or expert intuition of a jury."

§ The T.J. Hopper

  • Tug boat not installed with Radio Receiver
  • D argued not custom to install such radios
  • “…a whole calling may have unduly lagged in the adoption of new and available devices…there are precautions so imperative that even their universal disregard will not excuse their omission."
  • Ct. also did the B<PL analysis. Radio sets relatively inexpensive to install.
  • This case shows that general prudence is not always the common prudence.

§ In most Medical cases, we defer to custom. But there is an exception

  • Helling v. Carey

o Simple pressure test not given to P because not the custom

o “The test is a simple pressure test, relatively inexpensive. There is no judgment factor involved, and there is no doubt that by giving the test the evidence of glaucoma can be detected. The giving of the test is harmless." [B<PL]

o Res Ipsa Loquitur (Thing speaks for itself)

§ Doctrine that may be used to get to the jury w/r/t the duty and breach of duty issues of the prima facie case when P is unable to make a prima face case based on a specific theory of negligence.

§ Two requirements for Res Ipsa Loquitur Requirement

  • Event must be of a type which ordinary does not occur in the absence of D’s negligence
  • Harm must be caused by an agency or instrumentality within the exclusive control of D.

§ Boyer v. Iowa High School

  • High school bleachers fell and P injured
  • Ct. allowed res ipsa instruction

o Bleachers under the exclusive control and management of D

o Bleachers just don’t fold unless negligence

o Also, D had more evidence than P….P was injured so how can we expect her to do the investigation

§ Shutt v. Kaufman

  • Res Ipsa is not a substitute for P’s careful preparation for the case
  • P’s access to evidence influences the court’s decision in whether to apply res ipsa.

§ Ybarra v. Spangard

  • Doctrine of res ipsa applied even when multiple Ds
  • Theory of respondeat superior

§ City of Louisvill v. Humphrey

  • Drunk husband died while in jail
  • Res Ipsa Test

o Event of type that occurs due to negligence: Yes

o D had Exclusive control: No/Can’t tell

  • Injury can be caused by jail inmate and D not 100% responsible for inmate’s actions.
  • Therefore res ipsa instruction not proper.

o Duty owned by Possessors of Land

§ Three tiered system under common law:

  • Invitees: those on land with permission but limited to business invitees or public invitees (e.g. customers in a store)
  • Licensees: Those with permission but who do not rise to the level of being invitees (e.g. social guests)
  • Trespassers: Those on land without permission (e.g. Katko Case)

§ Invitees: Restatement Section 332

  • An invitee is either a public invitee or a business visitor.
  • A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to public.[2]
  • A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
  • Restatement 343: Duty owned to Invitee

o 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[3] the condition and should realize that it involves an unreasonable risk of harm to such invitees, and

§ Should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and

§ Fails to exercise reasonable care to protect the invitees against the danger.

§ Licensee: Section 330

  • A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.
  • Section 342

o A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

§ The possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger[4], and

§ He fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and risk involved, and

§ The licensees do not know or have reason to know of the condition of the risk involved.

§ Trespassers

  • General rule is duty to not injure trespassers with wanton and willful conduct. (e.g. Katko v. Briney)
  • Types of trespassers

o Constant trespassers

o Known Trespassers

o Child Trespassers

  • Section 335: Artificial conditions highly dangerous to Constant Trespassers on limited area

o A possessor of land who knows, or from facts within his knowledge should know that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land if the condition

§ Is one which the possessor has created or maintains[5]

§ Is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and

§ Is of such a nature that he has reason to believe that such trespassers will not discover it, and

§ The possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

  • Known Trespassers: Possessor has duty to warn of artificial condition that poses threat of death of serious bodily harm if

o Possessor has actual or constructive knowledge of trespasser’s dangerous proximity to condition

o Trespasser is unlikely to discover the condition himself.

  • Known v. Constant Trespassers

o Known trespassers are those that the D knows of at the moment of the trespass – as in a contemporaneous observance that would enable possessor to do something to prevent harm

o Constant trespassers are not “known" contemporaneous w/ the act of trespass, but by virtue of evidence they leave behind or past sightings

§ Attractive Nuisance Doctrine

  • Possessor of land liable:

o for physical harm to trespassing children from an artificial condition IF

o Possessor has actual or constructive knowledge that children likely to trespass at the place


o Possessor has actual or constructive knowledge that condition involves an unreasonable risk of death or SBH to children


o Children – b/c of youth – in fact do not discover condition or realize risk associated with it


o Possessor’s benefit/utility in having the condition and possessor’s burden of eliminating it are outweighed by risk to children

§ B/U < R


o Possessor does not exercise reasonable care to eliminate danger or otherwise to protect children.

o Requires only reasonable care

o Possessor is not an “insurer"

§ Rejection of these categories

  • Some courts have rejected the use invitees, licensees, trespassers reasoning and have instead switched to the reasonable person reasoning.
  • Rowland v. Christian

o P guest in D’s house and injured by broken faucet. D knew of the condition but didn’t warn P.

o Held that P’s status as trespasser, licensee, or invitee will not be dispositive as to the duty of care owned to him. Instead, the test will be whether in the management of his property, the owner has acted as a reasonable person in view of the probability of injury to others…"

o Duty owned by common carriers

§ Common carriers are those who engage in transport of persons or things form place to place for hire, and who hold self out to public as ready, willing to serve public generally.

§ Most states hold common carrier to higher duty than RPP

§ Expressed:

  • Highest care
  • Utmost care
  • Great caution

o Duty owned by Motor Vehicle Operators

§ Few states lower the standard of care owned by operators of autos to their nonpaying guests generally in the form of auto guest statutes

§ Mostly require willful or wanton conduct in order to establish any breach of duty.

o Duty to Rescue

§ Generally duty to warn is only moral duty and not legal duty.

§ Certain cases, duty arises

  • Pre-existing relationship between the party in peril and the potential rescuer, e.g. Tarasoff
  • Relationship between common carriers and passengers
  • Relationship between school and its students
  • Duty where D caused/created the need to rescue, e.g. Tubbs
  • Reliance, e.g. Erie

§ Reliance

  • Erie RR Co. v. Stewart

o D without legal duty employed watchman at railroad crossing and P injured by train when watchman not there.

o Ct. said P came to rely on the watchman and that created a duty.[6]

o Some questions to ask: Did D’s acts invite reliance? Did P actually rely? Was the reliance reasonable?

  • Reasonableness of reliance (2 part test)

o Did D’s action invite reliance?

o Did it invite P to suspend his own judgment?

  • Lacey v. U.S.

o Coastguards not liable because they did not deter others from rescuing.

  • Brown v. MacPherson’s, Inc.

o State invited reliance when it said it would warn of avalanches, but then did not do so.

o Reliance on rescue must be the cause of the aggravated injury.

§ D caused/created situation

  • Restatement Section 322

o If the actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

  • Tubbs v. Argus

o D driver of car and involved in accident. Didn’t aid the passenger.

o Ct. said D was in control of the instrumentality that caused the accident and that created a duty to help the passenger.

o D liable for the aggravated injuries.

  • Some situations that create duty

o Master/employer to employee

o Invitor to the invitee

o When injury resulted from instrumentality under the control of D

  • Good Samaritan Statutes

o Absolve the Good Samaritan rescuer of liability that might otherwise arise from a botched rescue

o Some apply only to medical professionals

o Some to firefighters, police officers as well

o Some to all rescuers

§ Special Relationship (+Foreseeability)

  • No duty to control the conduct of another nor to warn those endangered by such conduct unless there is a special relationship.
  • Tarasoff v. Regents of UC[7]

o Special relationship may be between the D (mental health professional) and the person who does the intervening act (Poddar) OR between D and person who will reasonably foreseeably be harmed (Tatiana)[8]

o Court also uses B<PL when it states that unnecessary warnings are a small price to pay for the lives of possible victims that may be saved.

o In this case special relationship + foreseeability = duty

o In Weirum= froeseeability = duty

[1] MViolation of license cases are different from regular statutory violations. Keep an eye open for such licensing violations.

[2] It is not enough to just hold land open to public. There must be some inducement. E.g. A landowner installing playground equipment and posting signs asking children to come and use the equipment.

[3] Note the affirmative duty to inspect.

[4] Unlike invitees, no affirmative duty to inspect here.

[5] Note, only artificial conditions and not natural conditions.

[6] If there wasn’t a watchman employed, then we could have used the RPP and B>PL tests.

[7] One lesson: even when there is no special relationship between D and P, duty can still arise.

[8] In exam, show what you are basing the special relationship on.

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