Torts Fall 2013 1

Intentional Torts:

A. Intent: (SUBJECTIVE)
Can Show intent 2 ways:
o Purpose
o Knowledge to a substantial certainty
o JURISDICTION SPLIT: Intent to CAUSE CONTACT OR intent to cause result of contact
Doctrine of Transferred intent: **Does not work for IIED
o Can be when a person meant to perform one intentional tort and actually performs another
o When someone has the intent to commit a tort on one person and actually injures another.
Factors that do not negate intent:
o Good Faith/Motive
o Mistaken Identity
o Age
o Mental Illness
If no evidence of intent, the person on whom the burden of proof rests (likely ) will lose.
B. Battery: intentional infliction of a harmful/offensive bodily contact w/ the person/body of the (and it occurs)
Elements of Battery:
o Intent to cause contact or in some jx. Intent to cause h/o contact
Subjective ( must have known to a substantial certainty)
o To cause Contact
Contact can be direct or indirect with the other persons body
o Harmful/Offensive
Harmful = Caused physical harm or bodily damage
Offensive = if it offends a reasonable person with a reasonable sense of personal dignity
Crowded world & social ignorance does not excuse battery!
o With person of the Plaintiff
Contact element can be satisfied if its wit item(s) so closely connected to the body as to be
customarily regarded as part of the others person
C. Assault: Intentional causing an apprehension of imminent harmful or offensive contact or to make such contact.
Elements of Assault:
o Intent to place victim in apprehension of an imminent harmful or offensive contact or to make such
contact; (intent to cause a battery) AND
Apparent present ability
o Victim was placed in reasonable apprehension of an imminent harmful or offensive contact.
Words alone do NOT constitute an assault
Threats of future actions are NOT assault because there is no imminent danger
Conditional Threats: no assault when cond is impossible to satisfy (unless giving up legal right)
REASONABLE PERSON STANDARD
D. False Imprisonment: When the intentionally restrains or causes the restraint or confinement of the to a
bounded area against the s will with the s awareness.
Elements of False Imprisonment:
o 1. Intent
o 2. Intent to cause Restraint/Confinement
Confinement can be satisfied by:
Physical Barriers
Physical force or threats of physical force (including property)
Submission to apparent legal authority
When has a duty to provide reasonable means of escape and does not.
Even if you entered voluntarily, as soon as you try to leave and are restrained, it is FI
Confinement does not include exclusion from a place
If you feel morally persuaded to stay somewhere, it does not satisfy the constraint
element of FI because you are voluntarily staying there
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Conviction of a crime that someone is arrested for is a complete bar to their potential
false imprisonment claim against the police who arrested them
Exception: SHOPKEEPER: If a store owner has reasonable suspicion a shopper has stolen
goods, then they may restrain the shopper for a reasonable amount of time to facilitate recovery
of personal property and use this as a defense against a FI claim.
o 3. s Awareness at time of event
JURISDICTIONAL SPLIT:
Minority = require awareness or injury as a result of confinement
Majority = require to be aware of the confinement; protecting dignity interest; no
awareness means that dignity was not hurt (Con: dignity could be hurt when the person
finds out later like in battery)
o 4. Without s consent (Against s will)
E. Intentional Infliction of Emotional Distress: When the (1) Intentionally causes severe emotional distress and (2)
when s conduct is so extreme or outrageous that it would cause a reasonable person to suffer severe emotional
distress and (3) the actually suffered severe emotional distress as a result of s conduct.
Elements of IIED:
o Intentional
o Extreme and Outrageous
Conduct must exceed all bounds tolerable by society, especially calculated to cause serious
mental damage
o Plaintiff must have suffered severe emotional distress directly from defendants conduct (CAUSATION)
F. Trespass to Land: The intentional unprivileged entry onto anothers property or when the person places an object
on anothers land without permission.
Elements of Trespass to Land:
o Intent to be on that land
Intent only has to be on that land
Mistake does not negate intent (because the intent is still to be on that land)
o Actual presence on Plaintiffs land
Property does not have to be fenced, posted or have a sign.
Ownership of property extends to air above and ground below surface.
The action has to substantially interfere with the enjoyment/use of land
Trespass by continued presence:
Occurs if there was originally permission to be on the land, but then the individual
overstays by exceeding the scope of the permission previously granted
o When is found guilty of trespass, they are liable for all injury or damage resulting from that trespass
Remember: No actual damage is required, but the trespasser is liable for all resulting damage
Mining communities: If youre following a continuous mineral vein then it is not a trespass

Defenses to Intentional Torts (Privileges)

These are affirmative defenses the burden is on the to plead and prove these defenses (except in some jurisdictions, in
a prima facie case of battery, the must prove that there was not consent)
A. Consent: Depends on if acted in a way a reasonable person would believe that she consented to the s acts.
*Make sure act is within SCOPE of consent to be a defense!
Express - If expressly consents to an intentional interference with his person or property, then is not
liable for that interference.
Implied Consent may also be implied based on s conduct, custom, or the circumstances
o From conduct:
Conduct can indicate apparent consent
But silence does not always reasonably imply consent it depends on the circumstances
o Reasonable person would believe they consented? If so, s behavior was justified. (OBJECTIVE)
o If your consent is different from the community standard, then you must make your dissent from that
standard known in order to bring a case without that being a defense.
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o Participation in certain games (like football) indicates certain implied consent to certain touching
acts, but that doesnt mean there is consent to all violent acts related to the game.
Consent in the medical profession
o Generally, doctors need express consent to perform operations
o Implied consent is only allowed under these circumstances:
(1) If patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent);
(2) There is a risk of serious bodily harm if treatment is delayed;
(3) A reasonable person would consent to treatment under the circumstances; and
(4) The physician has no reason to believe this patient would refuse treatment under the
circumstances (like knowledge of a religion against medical treatment)
o Consent to one surgical procedure consent to another procedure
Consent by Fraud: Consent induced by fraud or duress is not valid consent.
o Fraud to essential matter (so something that would have made you decide differently) negates
consent; but fraud to a collateral matter does not negate consent
o Fraudulent concealment of STD/Fertility negates consent
Exception: If the individual with the STD didnt know they had it
o Fake money is considered collateral matter if you consented to the act itself
B. Self-Defense: When person reasonably believes that someone is about to cause an imminent H/O contact upon
him (or a 3
rd
party), he can use reasonable force to prevent that harm.
o The force must be reasonable and so must the belief that harm is imminent
Mistake: is allowable
This is a defense against IMMINENT threats, not one of retaliation
o Once person is no longer threatened, there is no need for defense
Provocation: Verbal provocation does not justify the exercise of self-defense.
Amount of force: limited to the use of force that is reasonable or reasonably appears necessary for the
protection against the threatened injury Factors to consider age/size/strength/sex
If self-defense injures a 3
rd
party:
o The privilege of self-defense is carried over to third parties and the is not liable for injury (except
sometimes negligence, but emergency does count in the totality of the circumstances).
C. Defense of Others: A person may use reasonable force to defend another person against attack. The defender
may only use reasonable force and may not use deadly force to repel a non-deadly attack.
o Others = not limited to family members
Must have a reasonable belief that
o Victim had the privilege of self-defense & Force used must be reasonable
Reasonable Mistake is Acceptable: The is privileged to use reasonable force to defend another even when
he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable.
D. Defense of Property
Generally may use reasonable force to defend her property when she reasonably believes it to be necessary.
o But, you CANNOT use deadly force to protect property
Jurisdiction Split Few courts say that s can use deadly force to protect property as long as the offender is
given clear notice of the danger (likely to be used regarding deadly force from vicious dogs)
Reasonable mistake will not protect the from liability
E. Necessity: privilege to harm the property of where necessary to prevent great harm to 3
rd
party or to .
Public Necessity: Complete defense no (civil) compensation for those who lost due to the necessity
o Reasonable mistakes are protected
o ELEMENTS:
Must show that public, rather than private interests were at stake
was reasonable in believing action was needed (he could be wrong & still use this defense)
Action took was a reasonable response to the need
Private Necessity: Not complete defense (actor still has to compensate) but it invalidates a claim of trespass.
o ELEMENTS:
is threatened/reasonably appears to be threatened with serious harm
Reasonable response in light of the threat
o When the cause is completely unrelated to the injured person (another person as a human shield)
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Negligence (Breach)

DEF: The tort of negligence occurs when one persons conduct imposes an unreasonable risk of harm on another
person who is injured as a result.
A. FOUR ELEMENTS FOR NEGLIGENCE C.O.A.:
1. Duty: All persons have a duty to use reasonable care to avoid injuring others
2. Breach: Failure to use reasonable care (often breach = negligence)
3. Causation: Causation in Fact (CiF) and Proximate Causation
4. Damage: must suffer from actual physical damages (no duty to protect against emotional damages)********
II. BREACH:
A. Industrial Standard:
Whether the costs of guarding against the danger does not significantly decrease the utility of the machine
Factors:
o 1. Character & place the injury occurred
o 2. Purpose of the location/machinery
o 3. Probability of injury
o 4. Precautions necessary to prevent the injury
o 5. The relationship between 2&3 and 4
B. HAND FORMULA:
Considers 3 factors:
o 1. The likelihood that conduct will injure others
o 2. The seriousness of the injury if it happens
o 3. Balanced against the interest that must be sacrificed to avoid the risk
B<PL when B is < (less than) the probability (P) times the gravity (L) of injury, there was a breach of duty.
o B = burden of taking precautions
o P = probability or likelihood some injury will occur
o L = magnitude/gravity of injury
C. CHEAPEST COST AVOIDER:
Unreasonable not to take a safety precaution when the cost of precaution is less than the cost of a likely accident
Comparing B from hand formula to determine who could have avoided the injury at the cheapest cost. Compare
transaction costs and information costs!
Toddler under car HYPO who is the cheaper cost avoider? (Characterization)
o Moms Argument: only takes seconds to check under car for toddler is a lower cost than the mom having
to follow the toddler 24/7
o Drivers Argument: It would be cheaper for the mom to keep her eye on her own child when the child is
near a dangerous environment than for every driver to check under their car before they drive anywhere.
D. EMERGENCY DOCTRINE
Elements:
o Unforeseen
o Not of your own making*
o Sudden peril or danger
Effects of emergency on the standard of care:
o Does not excuse unreasonable behavior emergency is just one of the circumstances
o If an action is negligent, it will not necessarily be negligent when the person is in an emergency.
E. THE STANDARD OF CARE
The Reasonable Prudent Person (RPP)
o Objective standard: What an ordinary, prudent person would do in s position
o People are deemed to have the knowledge of a RPP if: it is common to the community.
BUT custom is not always determinative
Mentally ill are included (unless its a sudden bout of insanity in some jurisdictions)
Persons with physical disabilities:
o Reasonable care requires that this person act as a reasonable person with the same disability would act.
o Intoxication is NOT a physical disability
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Children:
o To act as a reasonable child of like age, intelligence, and experience would (SUBJ)
o Exceptions (held to adult standard of care):
When engaging in activity normally undertaken only by adults
When engaged in an inherently dangerous activity
Duty Owed by the Professional: (Objective standard)
o Care required is that of an ordinary, competent professional under the same or similar circumstances with
the knowledge, training and good skill of an ordinary member of the profession in good standing in the
relevant community.
NO HAND FORMULA
Exception: one who holds themselves out to be a specialist will be held to a higher standard
Exception: An attorney who acts in good faith is not actionable for mere errors in judgment or for
a mistake in a point of law which has not been settled by the court of last resort in his state on
which reasonable doubt may be entertained by well informed lawyers must disclose personal
interests
o Duty arises out of professionalism, not payment
o The standard of due care for professionals includes the community standard if you comply with
the customary standard, youre not in breach (Expert witnesses required)
Duty of Informed Consent: (Look at flowchart)
o Physician has a duty to inform a patient of the nature, consequences, risks, and alternatives to treatment.
Could be a battery if didnt consent at all
must establish that the did something that the standards in the community practice forbid or
that the did not do something that the standards of good practice require
o Elements to form a COA:
1. Breach of duty to inform/disclose:
Majority: Physician-focused ordinary, competent physician would disclose (exp test)
o Majority: Std. of community or a similar community in similar circumstances
o Minority: National standard
Minority: Patient-focused what the ordinary, reasonable patient would want to know
Exceptions
o No duty to disclose what ought to be known already/what patient already knows
o Where full disclosure would be detrimental to the patient
o Emergency
Doctor must also disclose personal interest unrelated to the treatment of the .
2. Causation:
If the had been informed of the risks, would she still have proceeded with the
treatment? (disclosure would have changed her decision regarding treatment)
JURISDICTION SPLIT:
o Objective Rule: Reasonable patient standard
o Subjective Standard: THIS patients decision? (Be diff with specific knowledge)
3. Injury: The adverse effect or risk that was not disclosed to the must actually occur
III. PROVING BREACH
Types of Evidence:
o Direct Evidence = specific testimony
o Circumstantial evidence = where 1 fact supports another
Circumstantial Evidence (Banana Peel Cases):
o The only evidence you have is that the accident happened, which is not enough!
o The doesnt need evidence of notice to be liable.
o Very fact specific inquiry!
A. NEGLIGENCE PER SE
DEF: The use of a standard set by a criminal statute as a shortcut for proving what a reasonable person would do
o 1. must be a member of the class the legislation was intended to protect.
o 2. The type of harm suffered must be the type of harm the statute intended to protect against
o 3. Whether the statute is otherwise appropriate for policy reasons if:
Torts Fall 2013 6
A common law duty of care is already owed
The criminal statute clearly defines the prohibited or required conduct
NPS would not create liability without fault
NPS would not impose ruinous liability disproportionate to the seriousness of the conduct
Injury directly or indirectly resulted
What is the effect of using the statute as the standard?
o Even if all elements are met, it is up to the judge whether or not to apply it its not compulsory unless
the statute says that it is automatically the SOC.
o Causation is still required and a breach of the statute must cause injury
Effect of Statute (4 different approaches)
o 1. Conclusive evidence of negligence (almost no courts follow)
o 2. Negligence per se WITH EXCUSES (incapacity, no knowledge of the occasion for compliance, unable to
comply after using reasonable care, emergency, greater risk of harm)
o 3. Presumption of Negligence
o 4. Mere evidence of Negligence
B. RES IPSA LOQUITUR
*FOCUSED ON THE OCCURRENCE
The mere fact that the injury/incident occurred is enough for a reasonable jury to infer negligence.
PROBABLE NOT JUST POSSIBLE
2 Elements:
o The accident must be of a kind that does not ordinarily occur in the absence of negligence
o The instrumentality causing the s injury must be under the exclusive control of the .
Exception: Multiple s can be liable in a case like Ybarra v. Spangard, involving a patient
receiving unusual injuries while unconscious during medical treatment joint and several liability
Procedural effects of applying RIL:
o Majority rule = RIL permits an inference of negligence by the jury, but the jury is not required to draw
such an inference but the jury could still rule for , even if introduces no new evidence
o Minority = RIL raises a presumption of negligence and the must introduce some evidence to rebut that
presumption or he will lose
o Minority = RIL raises a presumption of negligence and shifts the burden of proof to to show his
negligence did not cause the s injury

Causation in Fact (But For Causation)

A. Elements:
1) s act must be negligent in the first place
2) s action must be a but for cause of the
3) Injury to .
B. But For test: but for the s negligent acts, would have been injured?
Cause in fact not established if would have suffered the same harm without s negligent actions.
There can be more than 1 cause in fact!
Standard of proof = need only to show that its probable (51%), not just possible
o But the doesnt have to disprove every other possible cause just need to identify the most causal agent
o Possible cause is enough for the to excuse their liability
C. Medical Misdiagnosis:
Jurisdiction Split:
o *Substantial factor test: If a reasonable jury could find that the s negligence was a substantial factor in
bringing about the injury (death) of the ; Allows the jury to award full damages to the .
s misdiagnosis of s condition reduced s chance of survival, but the chance of survival without
the misdiagnosis was less than 50% (if reduced from > 50%, you could argue it was the cause)
o No recovery if original chance of survival less than 50%
o Increased Risk or Loss of Chance: Recovery = % of loss (proportionate to the loss of chance)
Toxic Exposure: Chance of developing disease more than doubled recovery
o Could argue that increased risk/loss of chance variation could apply, but no courts have actually accepted it
Torts Fall 2013 7
D. Multiple Sufficient Causes:
Multiple Insufficient Causes:*easier
o Negligence by both s was necessary for the injury
o Neither act of negligence alone would have caused injury
Multiple Sufficient Causes:
o Each cause was enough to cause the injury on its own
o Neither is a true but for case both s are liable if each was a substantial factor in the s injury.
E. Unclear who caused the harm: (ONLY TIME TO BRING IN BURDEN OF PROOF SHIFT)
Alternative Liability
o Requirements:
2 Defendants
Substantially similar acts of negligence
All negligent parties joined before suit
s behavior is not a substantial factor
o The burden of proof shifts to the s to exonerate themselves, but if they cant then they are held jointly
and severally liable.
Market Share Liability
o Deals with fungible goods the goods are identical so that the manufacturer is unidentifiable
o Elements:
A substantial share of the market is joined in the suit
All s engaged in the same negligent conduct
Burden shifts to s to show they did not manufacture the specific drug
o SPLIT JURISDICTION: Each is liable for their percentage of the market share to be paid in damages to
the . (the jx split is over whether all of the s joined share damages or if all members of the market, joined
or not split damages)

Proximate or Legal Cause

A. General:
CiF must be satisfied before moving onto proximate cause/ May also be multiple proximate causes
Direct Causation Rule: If harm was caused directly by s negligence without any SUPERSEDING force between
the negligent act and the harm, then is liable for the harm.
B. Does liability create public policy concerns? (keep this in the back of your mind)
1. Not a precise test with a precise answer, but it will often revolve on the social utility, likelihood of this kind of
injury, potential gravity of injury, and cost of prevention.
C. Unforeseeable Consequences: is not liable (negligence is not a PC) for remote and unforeseeable consequences
If harm is foreseeable, then is liable; its a risky test because its hindsight reasonable man test
Exception (extent of harm): Egg Shell Skull Rule: (You take the as you find them)
o If its foreseeable that s conduct will cause a physical injury to the , then the is liable for the full extent
of the injury, whether the extent is foreseeable or not.
o Some courts include a frail psyche that break after physical injury
Foreseeability of the kind of harm, not the manner in which the harm was brought about
o Hand formula: B<P
x
L (same factors as breach)
D. Unforeseeable Plaintiff (If theres a fact pattern with an unforeseeable , make these arguments at the end!)
Cardozo: No Duty for unforeseeable s
o Believes that there is no duty when the potential is unforeseeable.
o Within scope of foreseeability
Andrews: Duty of care owed to everyone evaluated under PC
o Includes the idea of natural and continuous sequence to determine PC
E. Concurrent Causes
Intervening causes = 3
rd
party actions that do not cut off liability for actor.
o If the 3
rd
party action is foreseeable, then its an intervening cause (if the reason an action is risky
involves the 3
rd
partys actions, then it does not cut off liability for the original actor)
Superseding Causes = 3
rd
party action that does cut off liability for actor.
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o 3
rd
party actions that are extraordinary under the circumstances; unforeseeable in the normal course of
events; far removed from s conduct
o Weather and Acts of God (if its not foreseeable) and Criminal/intentional acts (also turns on
foreseeability) Suicide generally (unless its an irresistible impulse minority of jurisdictions)
F. Rescue Doctrine
Allows injured rescuer to sue the party which caused the danger requiring a rescue in the first place because
danger invites rescue. (Mistake is okay)
Elements to qualify as rescuer:
o was negligent to the person being rescued & such negligence must have caused peril or the appearance of
peril to the person rescued.
o Peril or appearance of peril must have been imminent
o A reasonable person would conclude that peril or the appearance of peril existed.
o Rescuer must have acted with reasonable care in effectuating the rescue
Exceptions:
o Firefighters rule: (not all states) Recovery is not permitted by professionals for injuries sustained in a
rescue if the injury was the type of risk reasonably anticipated by the job.
o Malpractice: If the doctor is the rescuer, and engages in malpractice, doctor is liable because malpractice is
always foreseeable (original tortfeasor is still also liable)
o Second Injury caused b/c of weakness from 1
st
injury: depends on the totality of the circumstances (time
between accidents, location & nature of the 2
nd
accident, reas. of s conduct, character of the 2
nd
accident)
o Rescuer of Property: can apply, but the reasonableness is considered differently.

Duty of Care

A. Generally:
1. If a person acts, he owes a duty of reasonable care to avoid injuring others.
2. If a person fails to act, he owes no duty of care.
B. Failure to Act
Falls under the second general rule of duty of care: if the fails to act, he owes no duty
o *When representing , you want to look for some affirmative action that caused the harm; when
representing , you want to look for an omission of an act that could have caused the injury.
Exceptions:
o 1. When there is a special relationship between and .
Generally arises when the has control over OR over the instrumentality causing injury to .
o 2. When there is a special relationship between the and a 3
rd
party who injured
This exception turns on control and on who is in a better position to prevent the harm
Tarrasoff exception: Once a therapist in fact determines, or under applicable professional standards
reasonably should have determined, that a patient poses a serious danger of violence to others, the
therapist has a duty to exercise reasonable care to protect a foreseeable victim of that danger
o 3. Voluntary assumption of responsibility and s detrimental reliance
When the assumes a responsibility to act and such undertaking increases the risk of harm or is
relied on by the to her detriment.
o 4. When the has caused injury to another, negligently or intentionally
When has put in a helpless position, then has a duty to take reasonable steps to rescue the .
If the actor knows or has reason to know that his conduct may have caused bodily harm.
o 5. Owners and Occupiers of land
Trespassers:
There is no duty to make ones land safe for trespassers
Exception in majority of jxs: There is a duty, if & when the trespasser is discovered, for the
landowner to use ordinary care to avoid injuring the trespasser by active operation
Licensees: Someone on the land for their own business, but with the permission of the owner.
(Includes social guests)
DUTY OWED: a duty to warn of any hidden dangers unknown to the licensee that the
owner knows of (actual, subjective knowledge).
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Invitees: Person on land in furtherance of the owners business OR mutually beneficial business.
DUTY OWED: Use reasonable care to keep the premises reasonably safe for use
o May include preventing criminal acts by 3
rd
parties
o LOs Must inform themselves of potential dangers
Children: Standard regarding artificial Conditions Highly Dangerous to Trespassing Children rule
If kids have never trespassed, then theres no duty
Serious risk of injury
Children unable to discover risk until theyre injured
Utility to possessor of removing the risk is slight in comparison to risk to children
Public Officials: Courts are divided on how to classify but most regard them as licensees or as
general negligence.

Talk about duty under 4 circumstances:
1. General: reasonable care
2. Unforeseeable (make argument on proximate cause)
3. Owners/Occupiers of land (start analysis here)
4. Failure to act (start analysis here)


Defenses to Negligence (Plaintiffs Conduct)

A. Contributory Negligence
Complete bar to recovery in a minority of jurisdictions (many jxs dont follow this - comparative fault model)
ELEMENTS:
o 1. breached the duty of care
o 2. s breach was a but for cause of the injury
o 3. s breach was a proximate cause
Doctrine of Last Clear Chance: s recovery is not barred if the had the last clear chance to avoid the injury
B. Comparative Fault (Negligence)
MAJORITY not a complete bar to recovery!
o *Still needs to find the 3 elements for contributory negligence before determining responsibility
Reduces the recoverable amount of damages to that commensurate with s responsibility.
Three different approaches:
o Pure Approach:
s damages are reduced in proportion to the % of the negligence which is attributed to them.
= 25% at fault; = 75% at fault recovers 25% of awarded damages
o Modified: (THIS IS WHAT GA HAS): s negligence less than s
The can only recover if she was 49% or less at fault not as great as s negligence
o Modified 2: s negligence not greater than
may recover if she is less than or equal to 50%
Jury determines how to assign risk by weighing these:
o Relative Culpability
Comparing the breaches (Whose breach was worse?)
o Causative Potency (Whose breach was more of a proximate cause?)
The closeness between the conduct of each party and the injury to the .
C. Assumption of Risk
Express
o Complete defense unless the provision is against public policy or in regards to intentional acts.
o Does the risk that injured the fall within the terms of the agreement?
o Will be considered against public policy when it is affected with a public policy interest:
*When is performing a service to the public of great necessity
*When the agreement is a standardized contract of adhesion
When there is grossly unequal bargaining power
Was business of the type generally thought suitable for public regulation
Torts Fall 2013 10
The holds himself out as providing the service for anyone in the public who seeks it or at
least for anyone coming within certain established standards.
Due to the transaction, the s person or property is placed under the s control
Implied
o Requirements:
had ACTUAL knowledge of the risk
Must be within the scope of risk assumed!
must have voluntarily encountered the risk
If had no choice but to encounter the risk, then the voluntary element is not satisfied
o Slight majority hold this as a complete defense
o A Minority of jurisdictions analyze this under comparative fault.


Vicarious Liability

A. Respondeat Superior
Requirements:
o Employer-Employee Relationship
o Employee Must have committed the tort while acting within the scope of employment
Use foreseeability to aid you in determining this
What can be fairly foreseen from the nature of the employment and the duties relating to it.
Performing services for which he has been employed or when he is doing anything which is
reasonably incidental to his employment.
Are the actions so connected to the employment as to justify the employer bearing the loss?
Frolic v. Detour (some courts consider this)
Frolic: abandonment of the employers business in pursuit of employees personal business
Detour: Slight deviation from employers business for the employees own reasons that is
sufficiently related to the employment to fall within its scope.
B. Independent Contractors
General rule: An employer is not liable for the actions of an independent contractor, only an employee
o DEF: Independent contractor = one who is engaged to perform a certain service for the employer according
to the employers own methods and manner
The key is whether the employer has the right to control the physical details of the work
Employee v. Independent Contractor is a fact-specific question the courts will look at the
connections between the person at issue and the employer (like where the work was performed;
were the hours regulated; How were they paid salary or pre-paid; who supplied the tools?)
Exception: When the contractor is engaging in an inherently dangerous activity
o Activities that have a peculiar risk of substantial harm in the absence of special precautions
o EXCEPT this exception does not apply to collateral negligence by the independent contractor.


Strict Liability

must pay damages, even though did not act intentionally or negligently.
A. Animals
BARNYARD: If the animal trespasses, the owner is strictly liable for any damage to the other persons land
WILD ANIMALS: Owner/Possessor of a wild animal is subject to SL if the wild animal injures anyone
DOMESTICATED ANIMALS: Strictly liable for the injury caused by animal if they knew or had reason to know
that the animal had dangerous propensities abnormal to their class
B. ABNORMALLY Dangerous Activities
RYLANDS rule: If the brings something non-natural onto his land that is likely to cause harm if it escapes, the
is liable for the harm caused.
R2d 520:
Torts Fall 2013 11
o One who carries on an abnormally dangerous activity is strictly liable from harm resulting from that
activity
o 6 factors to determine whether or not an activity is abnormally dangerous:
1. Existence of a high degree of risk of some harm to the person, land, or chattels of another.
2. Likelihood that the harm resulting from it will be great
3. *The inability to eliminate the risk with the exercise of reasonable care
4. Not a manner of common usage
5. The inappropriateness of the activity in the location which it is carried on
6. The inherent value of the activity to the community is less than the danger of the activity.
(Not all of these need to be proven, but more than one is pretty necessary)
C. Limitations on Strict Liability
Proximate Cause Limitation
o Based on the s engaging in an abnormally dangerous activity can only recover for the type of harm
that makes the activity abnormally dangerous (not liable for ancillary risks)
o Ask: What is the risk that makes this activity abnormally dangerous in the first place?
If the risks are different, then apply test for negligence
On exam: Characterize the danger to include or exclude the activity
o Courts are split on when a superseding cause destroys SL:
Some jxs hold that the engaging in abnormally dangerous activity is not strictly liable where the
accident results from an act of God, unforeseeable events, natural disasters, or intentional acts
of 3
rd
parties; even when the risk that made the activity abnormally dangerous caused the injury.
The Restatement allows recovery in SL cases even if an unexpected party intervenes
Weighs intervening cause v. superseding cause
Superseding only if it is an intentional act by a 3
rd
party.
Contributory Negligence Limitation
o Majority: The fact that was contributory negligent is not a complete bar to recovery (BUT IAR IS
COMPLETE BAR!)