What Are Torts?

Emendatory system of justice corrective

Goals of the Law of Torts
frame tort arguments through these principles to be persuasive
prevention of self-help by victims and their relatives and friends against those who have
caused injury
retribution against wrongdoers
deterrence of wrongdoers
compensation for the victims of wrongdoers
redress of social grievances
corrective justice and civil redress
fairness
How the Court analyzes Cause of Action
Court looks to legal commentators and law review for understanding of invasion of privacy
looks to common law protecting similar elements to find a fitting precedent
when looking for precedent look as close to home as possible and slowly expand net. (state
federal regional nation maybe international with similar legal
system/principles)
principles applied in one area may not make sense in another area
look to similar jurisdiction
How does an inherently conservative institution deal with change?
a backward look court system must compensate for an evolving world
jump in railroad cases when railroad are new because there is no precedent to look to
the gut feeling is an important aspect
Roberson v. Rochester Folding Box Co. (9-16)
the court's role in determining cause of action

Legislature must create the cause of action before the court may find it

Case of Thorns (26)

intent is not always a requirement

The person who takes an action that unintentionally results in harm is still responsible.
Trespass an action taken against another that results in damage
Trespass on a Case damage given without intent

Weaver v Ward (27)

inevitability

If the action was inevitable and the defendant did not act with negligence, the defendant is not
at fault.
Erases distinction between Trespass and Trespass on the Case.

Brown v Kendall (27-31)

burden

Plaintiff must hold burden to prove defendant's liability

Intentional Torts when the defendant tried to harm the plaintiff

Intent (Restatement 3rd) 1

A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.

Jackson v. Brantley (36-39)

knowing and purposefully

Defendant must have knowingly and purposefully taken the action that resulted in the horses
being on public highway
the consequences of his act are certain or substantially certain to result from his intentional
conduct
intended to produce the consequences which in fact occurred

intent can be shown when the consequence is substantially certain to occur (40)

Beauchamp v Dow Chemicals (40-43)

substantial certainty
Intention Tort requires defendant to produce contact knowing harm is substantially certain to
occur from the contact
Substantial certainty should not be equated with substantial likelihood too low a bar
Test for Intent (varies by jurisdiction)
Substantial certainty test injury is substantially certain to occur as a consequence of the
defendant's action
application of the test should be limited to situations in which the defendant has
knowledge to a substantial certainty that the conduct will bring about harm to a
particular victim or to someone within a small class of potential victims within a
localized area
True intentional tort test defendant truly intended the injury as well as the act

Battery (Restatement 2nd) 13

An actor is subject to liability to another for battery 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) a harmful or offensive contact with the person of the other directly or indirectly
results.
Assault (Restatement 2nd) 21
(1) An actor is subject to liability to another for assault if
2

 (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.
(2) 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 harm.
Masters v. Becker (44-45)
elements of battery

An actor is liable 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 a contact, and
(b) a harmful and offensive contact with the person of the other directly or indirectly
results
Does not require proving defendant intended to injure and to create specific injury that
occurred

Brzoska v. Olson (47-52)

standards for battery

Doctor had AIDs and patients sue for assault and battery
patients lose

Actual Exposure Test requires a plaintiff to show actual exposure to a disease-causing

agent as a prerequisite to prevail on a claim based upon fear of contracting disease
Lack of consent is an element of battery.
Single Intent Standard Intent necessary for battery is the intent to make contact, not the
intent to cause harm
Dual Intent Standard used by some other jurisdictions Intent necessary for battery is the
intent to make contact, and the intent to cause harm

Dickens v. Puryear (53-55)

assault and battery vs intentional infliction of emotional distress

Assault is an offer to show violence to another without striking

must put other in apprehension of an imminent contact
threatened party has expectation of no significant delay
Battery is the carrying of the threat into effect by the infliction of a blow
Intentional infliction of mental distress is threats for the future because they are not imminent
or immediate.

Singer v. Marx (56-59)

transferred intent

An infant who forcibly invades the person of another is liable for a battery regardless of an
intent to inflict injury.
Only intent of action is necessary (57)
Defendant intentionally aiming injury at one party and injurer another is still liable for
intentional tort
the injury being direct, natural and probable consequence of the wrongful act (58)

Typically parents are not held vicariously liable for actions of children (59)
licenses of the playground by being involved in an activity, there may be consent to the
contact (59)
White v Muniz (60-64)
insanity as a defense

Battery contact requires the contact also intended to be harmful or offensive

dual intent
mental capacity as a defense only effective in dual intent jurisdiction
makes it harder to prove intent for contact to be harmful
(Restatement 2nd) 895J
one who has deficient mental capacity is not immune from tort liability solely for that
reason
A jury may find an insane person to act intentionally if he intended what he did, even if the
reason for such actions was irrational (64)

Hellriegel v. Tholl (73-76)

consent as a defense
Consent is typically a defense to battery
Consent assumes the risk of accidental injury
Consent cannot be given under duress such as when plaintiff consent to activity to protect
self
Consent is to activity, not injury
Consent is not always verbal may be implied by circumstance (77)
Consent through fraud, duress, or nondisclosure of material fact is not consent.
Consent to a game is not consent to injury against the rules of the game (78-79)

Mulloy v. Hop Sang (79-81)

medical consent

Implied consent typically for what is necessary to save a life or other important interests
overridden by voiding consent
Doctor acting against expressed wishes of patient still liable for battery and trespass
still liable for damages for trespass even if position of the patient was improved

Lane v. Holloway (89-91)

injury in a fight
Ex turpi causa oritur non actio a plaintiff cannot sue for damages if they arise in
connection with his own illegal act
Volenti non fit injuria voluntarily participating in a fight where both parties accept risk of
incidental injury
these doctrines do not account for injury non-proportionate to the fight
defendant may still be liable for especially sever blow not in proportion to fight
Provocation is not relevant to the issue of compensatory damages (91)
Provocation is relevant to issue of punitive damages
Silas v. Bowen (91-95)
self defense
Defendant may use reasonable force to eject party who is trespassing on property
Reasonable Force is not typically with a deadly weapon (ie gun)
Deadly weapon may be authorized if conduct of trespasser puts reasonable person in
apprehension of assault by trespasser

Non-Deadly Use of Force (Restatement 2nd) 63

permits one to defend himself from harm by using non-deadly force even if he could have
avoided injury by retreating
Deadly Use of Force (Restatement 2nd) 65
force threatening death of serious bodily injury cannot be justified if retreat is possible
unless the defender is attached within his own dwelling or is defending his own dwelling
against intrusion or dispossession
many jurisdiction have not adopted retreat to the wall doctrine (96)
Castle Doctrine is similar and often codified by statute
Defense of others (Restatement 2nd) 76
gives person the right to use force to protect third persons under the same conditions and by
the same means as those under and by which he is privileged to defend himself if the actor
corrected or reasonable believes that
the circumstances are such as to five the third person a privilege of self defense AND
the actor's intervention is necessary for the protection of the third person
common law has actor step into shoes of third person to justify use of force in defense
circumstance interpreted from third person's point of view.
Restatement interprets from actor's point of view
Force in Prevention of a Felony (Restatement 2nd) 143
deadly force may not be used in order to prevent the commission of a felony unless the
felon is one threatening death or serious bodily harm or involving the breaking and entry of
a dwelling place
Force is Arresting for a Felony (Restatement 2nd) 131
deadly force may be used if reasonably necessary in order to arrest a person for a felony
5

Trespass to Land (trespass quare cllausum fregit) onto the property of another; invasion of the
possessor's interest in exclusive possession of land (69)
only intent necessary is action that constitutes invasion of land (67)
involuntary action is not intentional trespass (68)
trespass is cause of action for nominal damages even if no actual damage or defendant was
acting in good faith (68)
no cause of action with privileged entry ie consent or implied consent
Trespass ab initio when a person lawfully entered land then abuses that privilege through
conduct of tortious act (69)
will be considered to have trespassed from the start
not generally applied when consent or invitation was given to enter property
Trespass to Chattel (trespass de bonus asportatis) wrongful taking of chattels
only requires defendant acted voluntarily (71)
nominal damages permitted when defendant dispossessed plaintiff of chattel
mere interference with chattel will require showing of damages
Conversion intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the
other the full value of the chattel (72)

Brown v. Martinez (97-101)

use of force to defend property
There is no privilege to use force calculated to cause death or serious bodily injury when
only property is threatened
person may not use force to threaten great bodily harm or endanger life absent threat or use
of force by trespasser

Use of force to recapture property (see 103)

never may use deadly force
Use of force in Discipline (see 104)
Destruction of property as a public necessity (see 105-108)

Ploof v. Putnam (108-110)

doctrine of necessity

Doctrine of Necessity applies with special force to the preservation of human life
entry upon the land of another may be justified by necessity
The right to life trumps the right to property (or any other right)

Vincent v. Lake Erie Transportation Co. (110-114)

balancing rights of property

Damages done to one's property by forces beyond human control are not recoverable
Damages that occur because one party took action to prevent damage to their own property are
6

recoverable
Using someone else's property to prevent damages to your own property makes you liable
for those damages.
Defendant prudently and advisedly availed itself to the plaintiff's property for the purpose of
preserving its own more valuable property and the plaintiffs are entitled to compensation for
the injury done.

DISSENT (113-114)
If the boat was lawfully in position at the time the storm began and the defendant could not
leave that position without damaging his own property, then the damages to the dock was a
result of inevitable accident.

Negligence did not have intent but should have known

Negligence Restatment (Third) of Torts 3

A person acts negligently if the person does not exercise reasonable care under all the
circumstances. Primary factors to consider in ascertaining whether the person's conduct
lacks reasonable care are the foreseeable likelihood that the person's conduct will result in
harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to
eliminate or reduce the risk of harm.
Duty Restatement (Third) of Torts 7
(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct
creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases, a court may decide that the
defendant has no duty or that the ordinary duty of reasonable care requires modification.

Vaughan v. Menlove (121-125)

reasonable caution

A person has the right to do what they want with their property until it harms another person's
property.
Negligence if the person does not exercise reasonable care under all the circumstance
consider whether conduct lacks reasonable care, foreseeable likelihood of the result,
foreseeable severity of harm
Duty An actors ordinarily has a duty to exercise reasonable care when the actor's conduct
creates a risk of physical harm
must exercise reasonable caution as a prudent man
Duty may vary by policy or principle
age as an issue see 136

Delair v. McAdoo (126-128)

reasonable person

A reasonable person is the average person with the same background and experience.
Objective standard
The reasonable person is assumed to have certain common knowledge and is responsible for
knowing particular facts (such as the state of their vehicle)
(see 128 for Holmes quote on matter)

Charbonneau v. MacRury (129-135)

reasonable man standard

Reasonable care under all circumstance of the particular case

Rule of Reasonable Conduct constant, but the reasonably ascertainable defects of the actor,
whether adult or minor, are circumstantial to be considered in its application.
Child expected to exercise reasonable care as would ordinarily be exercised by the great mass
of children of the same age, experience, capacity, and understanding SEE GOSS for reversal

Goss v. Allen (137-142)

children and reasonable care

Children may be held to an adult standard of care when engaging in adult activities such as
driving (reverses Charbonnau)
Children engaged in activities regularly engaged in by children (such as skiing) still apply a
child's standard of care
Children Liability for Physical and Emotional Harm Restatement (Third) of Torts 10
(a) A child's conduct is negligent if it does not conform to that of a reasonably careful
person of the same age, intelligence, and experience, except as provided in Subsection (b) or
(c).
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in Subsection (a) does not apply when the child is engaging in a
dangerous activity that is characteristically undertaken by adults.
Emergency Liability for Physical and Emotional Harm Restatement (Third) of Torts 9
If an actor is confronted with an unexpected emergency requiring rapid response, this is a
circumstance to be taken into account in determining whether the actor's resulting conduct is
that of the reasonably careful person.
Disability Liability for Physical and Emotional Harm Restatement (Third) of Torts 11
(a) The conduct of an actor with a physical disability is negligent only if the conduct does
not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of
consciousness resulting from physical illness is negligent only if the sudden incapacitation
or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor's mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child.
8

Haley v. London Electricity Board (145-148)

duty to foresee harm

It is the duty of an actor to reasonably foresee harm their conduct may create
Reasonably foreseeable is determined with regard to common knowledge

Barker v. City of Philadelphia (149-152)

specialized knowledge for reasonable persons

A person who is employed to fulfill a particular job and has done so for some time has
specialized knowledge in that job
A reasonable person is an objective standard, however it does take into account circumstance
and experience of the individual.
A reasonable person with the same training, specialized knowledge, and circumstance.
Foreseeability of the specific harm is not always required.
If some form of injury is foreseeable and a different injury results, the defendant is still
liability

Knowledge And Skills Liability for Physical and Emotional Harm Restatement (Third) of
Torts 12
If an actor has skills or knowledge that exceed those possessed by most others, these skills
or knowledge are circumstances to be taken into account in determining whether the actor
has behaved as a reasonably careful person.

U.S. v. Carroll Towing (153-155)

B<PL formula

Duty functions in three variables

probability an action with occur (P)
gravity of resulting injury (L)
burden of adequate precautions (B)
liability depends on if B<PL
Burden is less than combination of probability and gravity of injury.

Pitre v. Employers Liability Assurance Corp. (159-163)

balancing risk v utility

Negligence requires risk be foreseeable and unreasonable

Reasonableness of risk measured by utility of circumstance
Ordinary care only requires precaution against occurrences that can and should be foreseen

It is the role of the jury to apply balancing tests, weigh the factors, and determine
reasonableness.
9

Roy Stone: 3 parts of the legal universe (164)

Alpha facts questions determined by direct observation and by accepting or rejecting the
testimony of witnesses who are reporting their own direct observations
Aleph facts questions of fact not resolved by direct observation. (ie, was the defendant
reasonable)
Judges are more free in disregarding the conclusions of juries on questions of aleph fact.
Questions of law for judges alone to decide.
Judge And Jury Liability for Physical and Emotional Harm Restatement (Third) of Torts 8
(a) When, in light of all the evidence, reasonable minds can differ as to the facts relating to
the actor's conduct, it is the function of the jury to determine those facts.
(b) When, in light of all the facts relating to the actor's conduct, reasonable minds can differ
as to whether the conduct lacks reasonable care, it is the function of the jury to make that
determination.

Martin v. Herzog (173-176)

negligence per se

Negligence per se the unexcused violation of a statute is negligence as a matter of law.

still must show cause and harm
Varied holdings on whether violation of administrative or regulatory statutes are negligence
themselves
Liability for Physical and Emotional Harm: Statutory Violations As Negligence Per Se
Restatement (Third) of Torts 14
An actor is negligent if, without excuse, the actor violates a statute that is designed to
protect against the type of accident the actor's conduct causes, and if the accident victim is
within the class of persons the statute is designed to protect.

Brown v. Shyne (178-182)

violation as causation

violation of statute does not automatically show recoverable negligence

must show cause in fact
injury must follow from the negligence
One must show that not only were their injuries caused by the statutory violation but that the
injuries suffered were of the kind the legislature enacted the statute to guard against.

Tedla v. Ellman (184-189)

excused statute violations

Spirit of the law v Rule of Law

violation of statute to adhere to intention of statute is an excused violation
does not constitute negligence

10

Barnum v. Williams (189-194)

emergency

Presence of emergency does not excuse violation of statute

Party in violation of statute is negligent as a matter of law unless they introduce evidence that
party was acting as a reasonable prudent person under the circumstance.

Liability for Physical and Emotional Harm: Excused Statutory Violations As Negligence Per Se
Restatement (Third) of Torts 15
An actor's violation of a statute is excused and not negligent if:
the violation is reasonable in light of the actor's childhood, physical disability, or
physical incapacitation
the actor exercises reasonable care in attempting to comply with the statute
the actor neither knows nor should know of the factual circumstances that render the
statute applicable
the actor's violation of the statute is due to the confusing way in which the requirements
of the statute are presented to the public OR
the actor's compliance with the statute would involve a greater risk of physical harm to
the actor or to others than noncompliance

Dempsey v. Addison Crane (199-202)

custom as evidence

Evidence of industry custom is admissible under the question of negligence

Neither compliance with an industry-wide custom nor the failure to comply with such a
custom is conclusive evidence of due care or lack of due care (203)
In activities that are engaged in by the practically everyone (not just an industry) customary
behavior may be conclusive on the issue of due care (203)

Shilkret v. Annapolis Emergency Hosp. Assn. (204-211)

Specialized Standard of Care

Strict Locality Rule standard of care takes into account ordinary skill and care in similar or
local community
locality can be in regards to geographic proximity, socioeconomic factors, or level of
medical knowledge, training and research available
Strict Locality Rule overturned
Expert medical witness need not necessarily reside or practice in the defendant's community to
testify as to the applicable standard of care in a medical malpractice case
National Standard developed and more applicable
Medical Standard of Care should take into account if actors has skills or knowledge that
exceed those possessed by most others ie specialists when determining reasonable care

11

Helling v. Carey (212-216)

common prudence

Common Prudence is frequently Reasonable Prudence, but it may not be the determination
A reasonable action may not always be the customary action and a customary action cannot be
the measure for whether it was reasonable
The Helling Rule a jury may find that reasonable prudence requires a higher standard of care
than followed by the profession (217)
Custom Liability for Physical and Emotional Harm Restatement (Third) of Torts 13
(a) An actor's compliance with the custom of the community, or of others in like
circumstances, is evidence that the actor's conduct is not negligent but does not preclude a
finding of negligence.
(b) An actor's departure from the custom of the community, or of others in like
circumstances, in a way that increases risk is evidence of the actor's negligence but does not
require a finding of negligence.

Miller v. Kennedy (218-224)

informed consent

Negligent Failure to Inform show that had the patient been properly informed, they would
have refused the treatment
Doctor must disclosure all relevant and material information the patient would use to make
an informed decision whether to accept or reject the treatment
There is a duty to inform if: (222)
risk of injury inherent in the treatment is material
there are feasible alternative courses available
the plaintiff can be advised of the risks and alternatives without detriment to his well being
Exceptions to Duty to Inform
harm from a failure to treat is imminent and outweighs can harm threatened by the
proposed treatment
risk-disclosure poses such a threat of detriment to the patient
see pg 225 for Statement of a Patient's Bill of Rights
Exceptions for duty to inform (226)
Emergency
patient is unconscious or otherwise incapable of consent AND
harm from a failure to treat is imminent
in such cases doctor should attempt to get consent from relative
Undue Threat of Detriment
when risk disclosure poses such a threat of detriment to the patient as to become
unfeasible or contraindicated from a medical point of view
would foreclose rational decision

12

Byrne v. Boadle (230-234)

circumstantial negligence

Liability for negligence can lie solely on account of the type of accident that occurred, without
direct evidence of negligence.
Since most of the evidence as to exactly what happened is in the possession of the defendant,
the doctrine serves as a means of putting pressure on the defendant to come forward with
evidence.

George Foltis Inc. v. City of New York (236-243)

res ipsa loquitur

Rule of res ipsa loquitur

relieves plaintiff of burden to provide direct evidence of negligence
Uses circumstantial evidence for proving causation or fault
Accident causes plaintiff's harm AND is the type of accident ordinarily happens as a result of
the negligence AND defendant is relevant member of a class of actors
Defendant had exclusive control of the cause of injury
Res Ipsa Loquitur Liability for Physical and Emotional Harm Restatement (Third) of Torts
17
The factfinder may infer that the defendant has been negligent when the accident causing
the plaintiff's harm is a type of accident that ordinarily happens as a result of the negligence
of a class of actors of which the defendant is the relevant member.
Elements of res ipsa loquitur
accident must be one that ordinarily does not occur in the absence of negligence
all courts use this requirement
instrumentality alleged to cause the plaintiff's injury was in the exclusive control of the
defendant
many but not all courts use this requirement
Elimination of other causes
plaintiff's burden to argue
The explanation is more readily accessible to the defendant than to the plaintiff
only some courts use this requirement
a solution to when the defendant has the evidence to explain the circumstances, so they
must come forth with it to exonerate them

Swiney v. Malone Freight Lines Inc. (244-248)

directed verdict in res ipsa

Defendant moving for directed verdict in res ipsa case must have undisputed proof which
shows that the cause of the accident was not due to their negligence
same standard a plaintiff's burden of proof would be held to

13

Ybarra v. Spangard (251-256)

application of res ipsa

Neither the number nor the relationship of the defendants alone determines whether the
doctrine of res ipsa loquitur applies.
Res ipsa loquitur arises when the chief evidence is practically accessible to the accused party
but inaccessible to the injured person
rationale in justice and fairness
negligently injured person would have no recourse unless other actors in attendance
voluntarily chose to disclose the identity of the negligent person and the facts establishing
liability
Control of Instrumentality
may still apply when defendant has right of control and not necessarily actual control
Res ipsa loquitur may be applied when multiple defendants and instrumentalities may have
caused the accident, provided there is a finite group at which to point the blame.
Causation
Causal Agents for plaintiff's harm
plaintiff's conduct
defendant's conduct
third party conduct
natural event/Act of God
Cause In Fact but for the actions of the defendant, the damage would not have occurred
Proximate Cause that the injury was a foreseeable consequence of the cause
Multiple Causes of Damage
2 simultaneous causes, both negligent
2 simultaneous causes, one negligent, one non-negligent
negligent cause must precede non-negligence to be liable
Sequential Causes
negligent causes must come first

Kingston v. Chicago & Northwestern Railway Co. (361-364)

multiple causes

but for test cannot distinguish which defendant was the cause-in-fact of injury
Each defendant negligent when concurring acts of negligence result in injury
Responsible for the entire damage resulting from their joint or concurrent acts of negligence

Rules of Causation
temporal priority
cause must come before effect
lack of spuriousness
must eliminate that some other cause was involve that may have caused damage or both
incident and damage
14

statistical variation
when two evens vary or co-vary
correlation rather than causation
Trivial Contributions To Multiple Sufficient Causes Restatement (Third) of Torts 36
When an actor's negligent conduct constitutes only a trivial contribution to a causal set that
is a factual cause of harm under 27, the harm is not within the scope of the actor's liability.

Kramer Services v. Wilkins (365-367)

causal link

Damages must be caused by negligence.

It is not sufficient for plaintiff to show a possibility that the injury was caused by negligence.
Expert testimony may be necessary to determine causal link between negligent act and injury

Daly v. Bergstedt (369-373)

disagreement among experts

Where qualified medical witnesses differ to causation-in-fact it is the jury's role to determine

Summers v. Tice (375-379)

alternative liability

With uncertainty to which defendant caused harm, burden of persuasion and to prove factual
causation moves to defendants
both act negligently but only one actually caused harm
More defendants makes it less justifiable to shift burden to defendant
Those acting in concert that cause harm are liable together.
Advice or encouragement makes individual liable to damaged party
Persons Acting in Consent Restatement (Third) of Torts 876
For harm resulting to a third person from the tortious conduct of another, one is subject
toliability if he
(a) does a tortious act in concert with the other or pursuant to a common design with
him,
(b) knows that the other's conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself OR
(c) gives substantial assistance to the other in accomplishing a tortious result and his
own conduct, separately considered, constitutes a breach of duty to the third person
comment (b) advice or encouragement to act operates as a moral support to a tortfeasor
and if the act encouraged is known to be tortious, it has the same effect up the liability of the
adviser as participation or physical assistance. If encouragement or assistance is a
substantial factor in cause the resulting tort, the one giving it is himself a tortfeasor and is
responsible for the consequence of the others' act.

15

Matsuyama v. Birnbaum (384-394)

loss of chance

Loss of Chance Doctrine deprived a person from chance of surviving

availability of expert evidence on probabilities of survival makes doctrine appropriate to
recognize loss of chance as a form of injury
experts are more precise and reliable
advances in medical technology
tortious conduct diminished plaintiff's ability to survive
Types of Foreseeability
Unforeseeable Plaintiffs
Unforeseeable Types of Harm
Unforeseeable Extent of Harm
Unforeseeable Manner of Harm
Harm Within the Risk an actor's liability is limited to those harms that result from the risks
that made the actor's conduct tortious.
Limitations On Liability For Tortious Conduct Restatement (Third) of Torts 29
An actor's liability is limited to those harms that result from the risks that made the actor's
conduct tortious.
Egg Shell Plaintiff an actor is liable for harm done to a person which is of greater magnitude
than it would typically be because of the person's preexisting physical or mental condition.
Preexisting Conditions And Unforeseeable Harm Restatement (Third) of Torts 31
When an actor's tortious conduct causes harm to a person that, because of a preexisting
physical or mental condition or other characteristics of the person, is of a greater magnitude
or different type than might reasonably be expected, the actor is nevertheless subject to
liability for all such harm to the person.

In Re Polemis (395-401)
directness of foreseeability
The exact way in which damage or injury results need not be foreseen for liability to attach,
the fact that the negligent act caused the result is enough.
Limitation of damages via the direct or remote cause of the injury
cause of the injury must be a direct result of the negligence.
Remoteness the further away in the chain links of causation an act is, the more remote
the consequences.
Scope Of Liability For Intentional And Reckless Tortfeasors Restatement (Third) of Torts 33
(a) An actor who intentionally causes harm is subject to liability for that harm even if it was
unlikely to occur.
(b) An actor who intentionally or recklessly causes harm is subject to liability for a broader
range of harms than the harms for which that actor would be liable if only acting
negligently. In general, the important factors in determining the scope of liability are the
moral culpability of the actor, as reflected in the reasons for and intent in committing the
tortious acts, the seriousness of harm intended and threatened by those acts, and the degree

16

to which the actor's conduct deviated from appropriate care.

(c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes
harm is not subject to liability for harm the risk of which was not increased by the actor's
intentional or reckless conduct.
Palsgraf v. Long Island Railroad (401-405)
reasonably foreseeable risks

a duty to avoid injuries to others only extends to those risks the actor should anticipate from
his negligent act
wrongful act must be in regard to plaintiff (rather than third party)

Wagon Mound I (406-418)

reasonable foreseeability

The natural consequences rule is overruled and reasonable foreseeability test is adopted.
Natural Consequences Rule negligent party is liable for both the direct trivial foreseeable
damage and all direct (rather than remote) but unforeseeable and grave consequences
Reasonable Foreseeability Test only liable for foreseeable consequence of negligence

Hughes v. Lord Advocate (420-423)

cause and harm

Defendant liable when plaintiffs injury is foreseeable, but the injury is caused in a unique way
or manner which could not have been foreseen
Result is within the chain of proximate causation and that element of negligence is satisfied

Doughty v. Turner Mfg. (423-429)

duty and cause

If there is no duty owed to the plaintiff in regard to the initial action that led consequentially to
the injury, then the defendants are not liable for damages.
Defendant did not have duty to avoid particular action that caused harm because it did not
foreseeably risk harm
Risk Of Harm Not Generally Increased By Tortious Conduct Restatement (Third) of Torts 30
An actor is not liable for harm when the tortious aspect of the actor's conduct was of a type
that does not generally increase the risk of that harm.

Wagon Mound II (443-450)

prevention of risk

If a party did nothing to prevent the injury, he is liable for the foreseeable consequences of his
actions, even if the consequences are remote.
because the risk was foreseeable, defendants bore a duty to prevent the risk, even if the risk
was a remote possibility

17

Glasgow Realty v. Metcalfe (457-459)

intervening cause

Intervening or superseding causes do not relieve the original actor of liability if the subsequent
acts might reasonably have been foreseen

When intervening negligence is deemed unforeseeable, the original negligent party is generally
not liable (460)
The most reckless the intervening negligence, the less likely it is foreseeable
Intervening Cause (Restatement 2nd) 439
If the effects of the actor's negligent conduct actively and continuously operate to bring
about harm to another, the fact that the active and substantially simultaneous operation of
the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in
bringing about the harm does not protect the actor from liability
Intervening Acts And Superseding Causes Restatement (Third) of Torts 34
When a force of nature or an independent act is also a factual cause of harm, an actor's
liability is limited to those harms that result from the risks that made the actor's conduct
tortious.

Brauer v. N. Y. Central & Hutson River Railroad (461-463)

intervention of criminal actors

When contributory negligence was still big

the act of a third person intervening and contributing a condition necessary to the injurious
effect of the original negligence will not excuse the first wrongdoer if such act ought to have
been foreseen
Allowed recovery against negligent defendant despite intervening intentional criminal acts of a
third person

DISSENT (463)
Proximate cause import unbroken continuity between cause and effect which is broken by the
active intervention of an independent criminal actor

Rescuers Restatement (Third) of Torts 32

Notwithstanding 29 or 34, if an actor's tortious conduct imperils another or the property
of another, the scope of the actor's liability includes any harm to a person resulting from that
person's efforts to aid or to protect the imperiled person or property, so long as the harm
arises from a risk that inheres in the effort to provide aid.
Enhanced Harm Due To Efforts To Render Medical Or Other Aid Restatement (Third) of
Torts 35
An actor whose tortious conduct is a factual cause of harm to another is subject to liability
for any enhanced harm the other suffers due to the efforts of third persons to render aid
reasonably required by the other's injury, so long as the enhanced harm arises from a risk
that inheres in the effort to render aid.

18

Yania v. Bigan (457-465 TWEN)

failure to aid

Moral duty to aid struggling person does not create legal duty
Absent a legal responsibility to person for placing him in the perilous position, there was no
duty of rescue.

No Duty Of Care With Respect To Risks Not Created By Actor Restatement (Third) of Torts
37
An actor whose conduct has not created a risk of physical or emotional harm to another has
no duty of care to the other unless a court determines that one of the affirmative duties
provided in 38- 44 is applicable.
Affirmative Duty Based on Statutory Provisions Imposing Obligations to Protect Another
Restatement (Third) of Torts 38
When a statute requires an actor to act for the protection of another, the court may rely on
the statute to decide that an affirmative duty exists and to determine the scope of the duty.

Farwell v. Keaton (473-477 TWEN)

attempt to aid

A special relationship exists between parties engaged in a common undertaking that imposes
an obligation to render assistance when one is in peril
Existence of a duty is ordinarily a question of law; however jury evaluates factual
circumstances which give rise to a duty
Every person has a duty to avoid any affirmative acts which may make a situation worse
If a party attempts to aid another and takes charge and control of the situation, he is regarded
as having voluntarily assumed responsibility for that person
Duty to Another Based on Taking Charge of the Other Restatement (Third) of Torts 44
(a) An actor who, despite no duty to do so, takes charge of another who reasonably appears
to be:
(1) imperiled; and
(2) helpless or unable to protect himself or herself has a duty to exercise reasonable care
while the other is within the actor's charge.
(b) An actor who discontinues aid or protection is subject to a duty of reasonable care to
refrain from putting the other in a worse position than existed before the actor took charge
of the other and, if the other reasonably appears to be in imminent peril of serious physical
harm at the time of termination, to exercise reasonable care with regard to the peril before
terminating the rescue.
Duty Based On Prior Conduct Creating A Risk Of Physical Harm Restatement (Third) of
Torts 39
When an actor's prior conduct, even though not tortious, creates a continuing risk of
physical harm of a type characteristic of the conduct, the actor has a duty to exercise
reasonable care to prevent or minimize the harm.

19

Thompson v. County of Alameda (479-488 TWEN)

duty to warn

no affirmative duty to warn when a prisoner is released on parole

no foreseeable risk without specific threat
warning everyone would be burdensome and difficult with limited resources

Eisel v. Board of Education (491-498 TWEN)

failure to notify

school counselors had a duty to use reasonable means to attempt to prevent a suicide because
they were on notice of the daughter's suicidal intent
duty to notify parents of suicide warning

Parvi v. City of Kingston (499-503 TWEN)

false imprisonment

Consciousness of confinement is a necessary element of false imprisonment

Recollection of that consciousness is not necessary
question is consciousness at the time of confinement

Negligence Special Duties

Duty Based on Special Relationship with Another Restatement (Third) of Torts 40

(a) An actor in a special relationship with another owes the other a duty of reasonable care
with regard to risks that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a common carrier with its passengers,
(2) an innkeeper with its guests,
(3) a business or other possessor of land that holds its premises open to the public with
those who are lawfully on the premises,
(4) an employer with its employees who, while at work, are:
(a) in imminent danger; or
(b) injured or ill and thereby rendered helpless,
(5) a school with its students,
(6) a landlord with its tenants, and
(7) a custodian with those in its custody, if:
(a) the custodian is required by law to take custody or voluntarily takes custody of
the other; and
(b) the custodian has a superior ability to protect the other.

Cochran v. Burger King (470-475)

duty of land owner

Land possessor owes a trespasser no duty of care

Possessor owes a licensee the duty to make safe dangers of which the possessor is aware
20

Possessor owes invitees the duty to exercise reasonable care to protect them against both
known dangers and those that would be revealed by inspection
Deviation (trespass) from an invitation (license) occurs when the entrant acts in a manner
inconsistent with the scope of an express or implied invitation

Nelson v. Freeland (478-489)

licensees v invitees

Required standard of reasonable care toward all lawful visitors

Eliminates distinction between licensees and invitees
trespasser remain distinct

Bennett v. Stanley (490-496)

attractive nuisance

Land owner liable for physical harm to children trespassing if the harm caused by artificial
condition of the land if know that children likely to trespass
Attractive Nuisance Doctrine foreseeable unreasonable risk of death or harm caused by land
condition; children are granted higher level of protection
person trying to save child takes on the same status as the child in the landowner's duty
if rescuer does not unnecessarily expose self to danger in attempt

Posecai v. Wal-Mart Stores (466-471 TWEN)

duty-risk analysis

Duty-Risk Analysis must show

conduct in question was the cause-in-fact of the resulting harm
defendant owed a duty of care to the plaintiff
duty was breached
risk of harm was within the scope of protection afforded by the duty breached

Duty to Third Parties Based on Special Relationship with Person Posing Risks Restatement
(Third) of Torts 41
(a) An actor in a special relationship with another owes a duty of reasonable care to third
parties with regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a parent with dependent children,
(2) a custodian with those in its custody,
(3) an employer with employees when the employment facilitates the employee's
causing harm to third parties, and
(4) a mental-health professional with patients.
Duty Based On Undertaking Restatement (Third) of Torts 42
An actor who undertakes to render services to another that the actor knows or should know
reduce the risk of physical harm to the other has a duty of reasonable care to the other in
conducting the undertaking if:

21

(a) the failure to exercise such care increases the risk of harm beyond that which existed
without the undertaking, or
(b) the person to whom the services are rendered or another relies on the actor's
exercising reasonable care in the undertaking.
Duty to Third Parties Based on Undertaking to Another Restatement (Third) of Torts 43
An actor who undertakes to render services to another and who knows or should know that
the services will reduce the risk of physical harm to which a third person is exposed has a
duty of reasonable care to the third person in conducting the undertaking if:
(a) the failure to exercise reasonable care increases the risk of harm beyond that which
existed without the undertaking,
(b) the actor has undertaken to perform a duty owed by the other to the third person, or
(c) the person to whom the services are rendered, the third party, or another relies on the
actor's exercising reasonable care in the undertaking.

Negligent Inflict of Emotional Distress (NIED)

Derivative Duty
impact rule
zone of danger rule
dillion rule
Independent Duty
mishandling of a corpse
negligent and incorrect death announcement
special relationship
Dzionski v. Babineau (587-603 TWEN)
emotional damages

Zone of Danger Rule

there is a particular surrounding zone in which witnesses may be affected by act and hold
actor liable
does not require direct contact
Dillon Rule
proximity
visibility
relationship
does not require contact or being in zone of danger
requires ability to see event occur
Spade Case (Impact Rule)
see also Mitchell Case
No liability for emotional damages unless there was an actual threat of damages
need direct contact
Independent duty not to cause emotional harm/distress
usually there is no duty in common law except in extreme cases such as wrongly informing
a person that a loved on is dead
exception in cases of special relationship

22

Molien v. Kaiser Foundation Hospitals (563-572)

special relationships

Serious Emotional Distress Where a reasonable person would be unable to cope with the
stress created
doctor/patient would qualify for special relationship
where one party has extreme power or control over someone who is helpless

Boyles v. Kerr (581-588)

jurisdictional variation

Mental anguish damages recovered in connection with defendant's breach of some other duty
does not rule out intention infliction of emotional distress
Overruled independent right to recover for NIED
minority view
some jurisdictions require physical manifestations
inability to sleep, nausea, loss of appetite, and dizziness have generally not been held to
be harm
some jurisdiction require diagnosable disorder (such as PTSD)

Contributing Cause contributory and comparative actions of plaintiff

Butterfield v. Forrester (628-629)
contributory negligence

Contributory Negligence Even though defendant was negligent, because plaintiff was not
using ordinary care, he is barred from any recovery for his injuries.
No longer applicable

Smithwick v. Hall & Upson Co. (631-634)

causation

Contributory negligence still must show proximate and direct cause

Factors for Assigning Shares of Responsibility Restatement (Third): Apportionment of

Liability 8
factors for assigning percentages of responsibility to each person whose legal responsibility
has been established include
(a) the nature of the person's risk-creating conduct, including any awareness or
indifference with respect to the risks created by the conduct and any intent with respect
to the harm created by the conduct AND
(b) the strength of the causal connection between the person's risk-creating conduct and
harm

23

Hoffman v. Jones (636-343)

comparative negligence

Contributory Negligence is abolished as a legal doctrine.

Juries were often ignoring this anyway and ruling in favor of plaintiff anyway
Juries should not have to break the law to serve justice
Comparative Negligence
reduce damages by level of plaintiff's contribution to the harm rather than bar recovery
entirely
Pure Form look at percentage each party is negligent and award damages based on
percentage analysis
plaintiff 0-99% at fault and still able to recover

Bradley v. Appalachian Power Co. (644-648)

categories of comparative negligence

Less Than Rule a party is not barred from recovery negligence or fault does not equal or
exceed the combined negligence or fault of the other parties involved in the accident
Not Great Than Rule offers recovery for either party if their negligence was not greater than
the opposing party's negligence
Last Clear Chance plaintiff's negligence is excused if it can be shown defendant had the last
opportunity to avoid the accident
Last Clear Chance: Helpless Plaintiff Restatement (Second) 479
A plaintiff who has negligently subjected himself to a risk of harm from the defendant's
subsequent negligence may recover for harm caused thereby if, immediately preceding the
harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence
his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff's situation and realizes or has reason to realize the peril
involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were
to exercise the vigilance which it is then his duty to the plaintiff to exercise.
Last Clear Chance: Inattentive Plaintiff Restatement (Second) 480
A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created
by the defendant's negligence in time to avoid the harm to him, can recover if, but only if,
the defendant
(a) knows of the plaintiff's situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely
to discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm.

24

Assumption of the Risk

Assumptions of Risk
Express Assumption of Risk
Implied Primary Assumption of Risk
Implied Secondary Assumption of Risk
Conscious Reasonable Risk Taking

La Frenz v. Lake County Fair Board (657-661)

waiver of liability

Waiver and Release from Liability

Prior knowledge of risks of activity makes release valid
Knowledge of the risk
Understanding of the risk
Cannot violate public policy
Parties may agree that one party has no duty of care in a specific activity in which they would
otherwise be negligent
parties must be bargaining free and open
see 659 for exceptions in cases of unequal power
may not excuse extreme negligence or intentional torts
Express Assumption of Risk requires waiver or explicit signs to indicate risk
knowledge of the risk
voluntariness of the decision to assume the risk
cannot violate public policy

Herod v. Grant (665-667)

implied assumption of risk

Implied Secondary Assumption of Risk

knowledge on the part of the injured party of a condition inconsistent with his safety
appreciation by the injured party of the danger in the condition
deliberate and voluntary choice on the part of the injured party to expose self to danger in
such a manner as to register assent on the continuance of the dangerous condition
plaintiff consciously taking unreasonable risk
Assumption of risk is subjective to plaintiff
weighs subjective knowledge
may be absorbed by comparative negligence

Jones v. Three Rivers Management Corp.(668-672)

conscious risk-taking

Standard of reasonable care in maintenance and construction

Foreseeable injury in attending place of amusement
Nature of injury affects duty
Implied Primary Assumption of Risk (No Duty Rule)
25

common expected risks of actions

openness of the risk
Voluntarism of the plaintiff's participation
Reasonableness of the risks of activity in light of benefit

Auckenthaler v. Grundmeyer (674-680)

risk in sports

In sporting/recreational activities, liability can only be imposed where the participant

intentionally injures another player or engages in conduct that is so reckless as to be totally
outside the range of ordinary activity involved in the sport
Primary Implied Assumption of Risk
voluntarily accepts known risk involved in particular situation and defendant has no duty
of care with respect to plaintiff OR
plaintiff voluntarily encountering a known risk created by defendant's negligence OR
plaintiff unreasonably accepts a known threat of danger in pursuing a particular course of
conduct
treated within comparative negligence analysis

Group Liability

Enterprise Liability
industry-wide liability
by perpetuating negligent standard, defendants are contributing to injury
Hall v EI Du Pont de Nemours & Co., Inc,
small number of manufacturers for blasting caps
manufacturers as individuals adhered to industry-wide safety standard
standard was no sufficient and caused injury to several children

Sindell v. Abbott Laboratories (732-745)

group liability

Enterprise Liability
usually applies to industries with small number of actors
each actor could be liable for all injuries caused by drug by virtue of adherence to industrywide standard of safety
because gov't set standard and regulated safety, it is unfair to impose liability for injuries
resulting from application of standards
Market Share Liability
typically between an innocent plaintiff and a negligent defendant the latter should bear the
cost of damages
percentage of responsibility and damages corresponds to percentage of market thus how
likely it would be that the defendant sold that particular product
Relative allows substantial share of the market to be held liable for 100% of the
plaintiff's injuries in proportion to their market share
26

 Absolute only hold defendant liable for their percentage of the market share (and leave
plaintiff uncompensated for missing share of the market)
Suggested Requirements
insufficient industry-wide standard of safety as to the manufacture of the product
Plaintiff not at fault for the absence of evidence identifying causative agent
generically similar defective produce was manufactured by all defendants
plaintiff's injury caused by this defect
defendants owed a duty to the class of which the plaintiff was a member
clear and convincing evidence that plaintiff's injury was caused by a product made by
one of the defendants
All defendants were tortfeasors
Shackil v. Lederle Laboratories (749-758)
market share liability

Market Share Liability requires generic product to spread negligence across entire field
Creates the question of what to do when negligence cannot be imposed but there are still
damages.
Policy concerns because people still need to get vaccinated despite the risk

Strict Liability negligence and intent do not matter

Duren v. Kunkel (762-765)
animals

Owner liable without wrong-doing because of inherently dangerous nature of animal

Owner of possessor of a wild animal is subject to strict liability for physical harm caused by
the animal.
Wild animal belongs to category of animals not generally domesticated and that are likely,
unless restrained, to cause personal injury.
An owner or possessor of an animal that the owner of possessor knows or has reason to know
has dangerous tendencies abnormal for the animal's category is subject to strict liability for
physical harm caused by the animal if the harm ensures from that dangerous tendency.
Doctrine of harm within the risk
Wild Animals Restatement (Third) of Torts: Phys. & Emot. Harm 22
(a) An owner or possessor of a wild animal is subject to strict liability for physical harm
caused by the wild animal.
(b) A wild animal is an animal that belongs to a category of animals that have not been
generally domesticated and that are likely, unless restrained, to cause personal injury.
Abnormally Dangerous Animals Restatement (Third) of Torts: Phys. & Emot. Harm 23
An owner or possessor of an animal that the owner or possessor knows or has reason to
know has dangerous tendencies abnormal for the animal's category is subject to strict
27

liability for physical harm caused by the animal if the harm ensues from that dangerous
tendency.
Klein v. Pyrodyne (787-795)
dangerous activities

Fireworks in a public space is an abnormally dangerous activity warranting strict liability.

Second Restatement 520
Existence of high degree of risk of harm
likelihood that the harm that results will be great
inability to eliminate the risk by exercise of reasonable care
extent to which activity is not a matter of common usage
inappropriateness of the activity to the place where it is carried on
extent to which its value to the community is outweighed by its dangerous attributes
Aims of Tort Law
fairness requires pyrotechnics bear the loss
difficulty to prove the cause when evidence is necessarily destroyed
utmost care may not be sufficient to protect those around the activity
weigh danger against value
Strict liability sometimes eliminated via statute in the cases of acts of God
Abnormally Dangerous Activities Restatement (Third) of Torts: Phys. & Emot. Harm 20
(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage

Indiana Harbor Belt v. American Cynamid (797-804)

comparative responsibility

Reorders analysis
Start with inability to eliminate risk of accident with exercise of due care
if this is not met there is no need to switch from negligence to strict liability
allowing strict liability removes incentive for person to innovate in their exercise
reasonable care to reduce risk of harm (799)
Talking about activity, not danger of substance
Comparative Responsibility Restatement (Third) of Torts: Phys. & Emot. Harm 25
If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the
plaintiff's recovery in a strict-liability claim under 2023 for physical or emotional harm
is reduced in accordance with the share of comparative responsibility assigned to the
plaintiff.

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Foster v. Preston Mill (815-819)

proximate cause

Damages for strict liability must be from the risks that make such activity extremely hazardous
damages only recoverable for proximate cause intended by policy concerns for strict liability

Products Liability

Liability Of Commercial Seller Or Distributor For Harm Caused By Defective Products

Restatement (Third) of Torts: Prod. Liab. 1
One engaged in the business of selling or otherwise distributing products who sells or
distributes a defective product is subject to liability for harm to persons or property caused
by the defect.

Greenman v. Yuba Power Products, Inc. (845-848)

defect liability

Individuals injured by products with design or manufacturing defects may bring suit under
strict liability regardless of a failure to give timely notice to the manufacturer for a breach of
warranty.

Smoot v. Mazda (854-858)

categories of defect

Category of Defect
manufacturing defect
design defect
warning defect

Categories Of Product Defect Restatement (Third) of Torts: Prod. Liab. 2

A product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warnings.
A product:
(a) contains a manufacturing defect when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the
product;
(b) is defective in design when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design by the
seller or other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the provision
of reasonable instructions or warnings by the seller or other distributor, or a predecessor
in the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe.
29

Branham v. Ford (861-873)

design defect

Design Defect Claim

consumer expectations
test of whether product is defective based in whether it is unreasonably dangerous to
consumer in foreseeable circumstances
no recognition that decisions must be made to weigh purpose and risk
Risk-Utility gives more factors to determine unreasonably dangerous
reasonable alternative design
usefulness and desirability of product
cost of add safety features
similar to B<PL test

Circumstantial Evidence Supporting Inference Of Product Defect Restatement (Third) of

Torts: Prod. Liab. 3
It may be inferred that the harm sustained by the plaintiff was caused by a product defect
existing at the time of sale or distribution, without proof of a specific defect, when the
incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect
existing at the time of sale or distribution.
Noncompliance And Compliance With Product Safety Statutes Or Regulations Restatement
(Third) of Torts: Prod. Liab. 4
In connection with liability for defective design or inadequate instructions or warnings:
(a) a product's noncompliance with an applicable product safety statute or administrative
regulation renders the product defective with respect to the risks sought to be reduced by
the statute or regulation; and
(b) a product's compliance with an applicable product safety statute or administrative
regulation is properly considered in determining whether the product is defective with
respect to the risks sought to be reduced by the statute or regulation, but such
compliance does not preclude as a matter of law a finding of product defect.

Johnson v. Amer. Cyanamid (907-915)

learned intermediary

Learned Intermediary it is manufacturers duty is to adequately warn the physician of a

known risk of their medicine/product

Burke v. Spartanics Ltd (922-928)

duty to warn

Where there are some foreseeable class of users who would not find something obvious, the
30

manufacturer is under a duty to warn

Does not automatically mean that failure to warn subjects a manufacturer to liability
If particular plaintiff is cognizant of the risks associated with the object, this will void the
requirement of warning

Kuhmo Tire Co. v. Carmichael (948-958)

experts

Federal Rules of Evidence (F.R.E.) Rule 702 gives a district judge discretion to determine
reliability of evidence in regards the circumstances and facts of a particular case.
Judges are the gatekeeper of the Daubert standard

31