Torts I

Professor Apolinsky

Torts – are wrongs recognized by law as grounds for a lawsuit. Tort law aims at
vindicating individual rights and redressing private harms.

“Prima Facie Case”- every type of tort has its own elements. A plaintiff must allege, in
good faith, the facts comprising these required elements. Otherwise the judge will dismiss
the complaint. The Burden of Proof is on the Plaintiff for each element!

Intentional Torts
Transferred Intent
If the defendant intends any of the five intentional torts (battery, assault, false
imprisonment, trespass to chattel, and trespass to land) but his acts cause any of the other
five intentional torts, the defendant is liable.

Relates to the act:

A child trespasses on land hunting, sees a deer, but shoots the property owner; what’s the
child liable for?
Trespass of Land and Battery b/c of transferred intent and extended liability.

Extended Liability
The Defendant who commits an intentional tort, at least if it involves conscious
wrongdoing, is liable for all damages caused, not merely those intended or foreseeable.

Relates to the damages:

A child trespasses on land, scares a deer, which breaks the owner’s fence. Is the child
liable; if so, why?
Yes, b/c of extended liability.
Before a final, Defendant sprints at Plaintiff to scare him. Plaintiff turns to run, and turns
an ankle needing medical treatment. While at the hospital, there is a fire, and Plaintiff is
seriously burned. Is defendant liable?
Defendant would not be liable for burns because that was not a reasonably
foreseeable result.
- Only goes so far that is reasonably foreseeable
o Restatement 435B: When deciding to impose liability for unforeseeable consequences
of an intentional tort, the court should consider the actor’s intention to cause harm, the
degree of his moral wrong and the seriousness of the harm that he intended when he
acted.
Battery – act or intent to cause a harmful or offensive contact. Harmful or offensive
contact must occur.

Key Sentence: Battery is the intentional infliction of a harmful or offensive bodily

contact.

Battery:
(1) Voluntary Act
(2) Intent to cause harmful or offensive contact or the intent to cause an imminent
apprehension of a harmful or offensive contact.
a. Desire to cause harmful or offensive contact
b. Know harmful or offensive
(3) Harmful or offensive contact results

Harmful contact is contact that causes harm

Offensive contact is contact that occurs when the contact “offends a reasonable sense of
personal dignity”

Battery -Restatement (Second) of Torts § 13 (1965).

1) Act (Conscious or Voluntary)
- Must include a touching
- Does not include muscle spasms.
- Must be an actual intended movement
2) Intent (Dual Intent) to cause harmful or offensive contact or the intent to cause
imminent apprehension of harmful or offensive contact to the person of the other
or a 3rd party.
a. To desire to cause the harmful/offensive contact;
b. Or have knowledge that harmful/offensive contact is substantially certain
to occur.
o Offensive Contact- is that which offends a reasonable sense of personal
dignity. Plaintiff does not need to prove he was physically injured
because battery is designed to protect a plaintiff’s personal dignity
o Imminent- means without significant delay;
3) Harmful/offensive contact must occur to the person or the other

Children’s Battery: in most states children may be liable for torts as long as the injured
plaintiff can prove the required elements. However, particularly young children are
“conclusively presumed to be incapable of harmful intent, the cut off age is generally 7
years old (Age is the determinative factor!)

Statutes imposing liability on the parents exist in virtually every state, but are limited in
two specific ways:
(1) The child’s tort must have been committed willfully or wantonly
(2) The damages that may be obtained are limited.

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Employee’s Battery: - Employers are generally vicariously liable for their employees as
long as acts are done within the scope of employment

*It is not necessary that the plaintiff have actual awareness of the contact at the time it
occurs. (Example: D kisses P while she is sleeping. D has committed a battery)

EXAM TIP: Look for BATTERY issue whenever you have what seems to be a “harmful
or offensive contact.”

Assault – Defendants acts intending to cause a harmful or offensive contact with the
person of the other or an imminent apprehension of such contact.

Key Sentence: Assault is the “touching of the mind, as opposed to the body, the damages
which are recoverable for an assault are damages for mental trauma & distress. Any act
of such a nature as to excite apprehension of a battery may constitute an assault.

Imminent Apprehension = the apprehension created must be one of imminent contact, as

distinguished from any contact in the future. Imminent does not mean immediate, in the
sense of instantaneous, it means rather that there will be no significant delay.

Assault:
1) Act (Conscious or Voluntary)
- Does not have to include a touching
2) Intent to cause harmful or offensive contact; or the intent to cause imminent
apprehension and a harmful or offensive contact to the person of the other or a
3rd person.
a. To desire to cause the harmful/offensive contact;
b. Or have knowledge that harmful/offensive contact is substantially
certain to occur.
- Words alone cannot constitute an assault
- Words must be combined with other acts or circumstances to put a reasonable
apprehension of an imminent harmful or offensive contact
- Did the words (either by themselves or taken together with D’s act) create in
P’s mind an apprehension of imminent harmful or offensive contact.
3) Imminent apprehension of h/o contact result.

Conditional threats – “If you were not an old man, I would knock you senseless.” “If you
don’t get off this track, I’ll kick you so hard!” ---- These comments can still be
considered an imminent assault even if the plaintiff can avoid by complying with the
unlawful demand.

Apprehension – an awareness of an imminent touching that would be a battery if

completed.

Imminent – an immediate; real threat

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Example: P’s fear of being beaten tomorrow isn’t enough to qualify for imminent contact
for an assault.

Intent HYPO: D, a bill collector, threatens to punch P in the face if P does not pay a bill
immediately.
Answer: Since D has intended to put P in imminent apprehension of a harmful bodily
contact, this is assault, whether D intends to in fact hit P or not.

Intent HYPO: D shoots a gun at P, trying to hit him. D hopes P won’t see him, but P
does. P is frightened, but the shot misses.
Answer: Assault

Words Alone HYPO: During an argument, D says to P “I’m gonna hit you in the face.”
Answer: This is probably not an assault because words alone are not sufficient to give
rise to an assault. D did not make any gestures like forming a fist or stepping towards P.
*However, the surrounding circumstances, or D’s past acts, may occasionally make it
reasonable for P to interpret D’s words alone as creating the required apprehension of
imminent contact.

Imminence HYPO: D threatens to shoot P, and leaves the room for the stated purpose of
getting his revolver.
Answer: D has not committed an assault for lack of the imminence requirement

EXAM TIPS: **It’s important in analysis to see things from both sides. Conclusion must
be supported by cohesive and cogent thoughtful analysis**

ANALYSIS IS WHERE YOU GET THE BIG POINTS

USE YOUR FACTS ON AN EXAM

(YOU CAN MAKE REASONABLE ASSUMPTIONS, LOGICAL INFERENCES)

False Imprisonment:
The tort of false imprisonment recognizes the coercive restraint of immediate force, even
when only applied to personal property, but fails to recognize highly coercive but non-
immediate threats.

Key Sentence: False imprisonment occurs when the defendant intentionally confines the
plaintiff. The plaintiff is confined when his will to leave a place with fixed boundaries is
overcome in a way that would overcome the will of an ordinary person in the plaintiff’s
position.

What is a reasonable safe means of escape? Turns on the degree of reasonability.

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False Imprisonment
1) Intent to confine
a. Desire or
b. Knowledge to a substantial certainty
2) Confinement occurs in a bounded area (freedom of movement restricted)
a. Physical barriers
- No reasonable means of escape must exist
- Bounded area may be a large area (i.e. city)
b. Threat of physical force
c. Assertion of authority
- All that is required is that the plaintiff reasonably believes that the
defendant had legal authority, not whether the defendant did indeed have
legal authority.
d. Threat to property
3) Awareness of confinement or suffer harm as a result
4) For any appreciable amount of time

Intent HYPO: D, a shopkeeper, negligently locks the store while P, a customer, is in the
bathroom.
Answer: this is not false imprisonment, since D did not intend to confine P.

Choice HYPO: If P is stopped on suspicion of shoplifting, and forced to leave his wallet
as “security” that he’ll answer charges.
Answer: That’s probably a sufficiently unpleasant choice that if P stays, he has suffered
false imprisonment. However, it’s not false imprisonment if P takes the deal and leaves,
even if it was wrongful for D to put P to this choice.

*Shopkeeper’s privilege – most courts let a merchant who reasonably suspects P of

shoplifting to detain P for the time reasonably needed to conduct an investigation, and
there is no false imprisonment even if it turns out that P is innocent

Trespass to land:
Key Sentence: Trespass to land is the intentional unauthorized entry onto the land of
another.

Elements to satisfy Trespass to land:

1) Intent to enter (actually entry does not have to occur)
a. Entry includes personal entry or by intentionally causing an object to enter
2) Entry
a. Desire to enter
b. Knowledge entry was substantially certain to occur
3) On land of another occurs

*Doesn’t matter if you reasonably believed that land to be yours (MISTAKES DON’T
MATTER)

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Example of intent: Car goes out of control and enters another’s property, and is then
removed in a timely manner? No trespass because there was no intent to enter.

Example of intent: D, a pilot, loses control of the aircraft, and the craft crash lands on P’s
property. This is not trespass. But if the pilot has a mechanical problem and intentionally
selects a particular parcel to emergency land on, that probably is trespass, though the pilot
may have the defense of necessity.

Egg shell plaintiff rule – person is liable for damages that occur after the original tort has
occurred. (Trespassing leads to damage to property)

Extended liability – whatever damages occurs from the trespass, trespasser is responsible
for the rest of the damages.
*Particles and Gases: most courts consider particles and gases as a trespass if the
defendant knowingly causes the objects to trespass.

*Air space: a fly over of a person’s property can be a trespass if it is below the federal
regulated zones of minimum flight altitude.

Conversion of Chattels:
Key Sentence: Conversion occurs when the defendant exercises substantial dominion
with the plaintiff’s possession or ownership of goods that it is fair to require the
defendant to pay the property’s full value.

Elements for conversion of chattels:

1) Intent to exercise substantial dominion & control
a. Desire to convert
b. Know conversion is substantially certain to occur.
2) Over Chattel
3) Of another

Substantial Dominion:
(a) Extent & duration of control
(b) The defendant’s intent to assert a right to the property
(c) The defendant’s good faith
(d) The harm done
(e) Expense or inconvenienced caused

Convert – treat it as though it’s your own

*Mistakes as to ownership will not be a defense

Remedies: the usual remedy for conversion is damages, measured by the value of the
chattel at the time of conversion.

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Intent HYPO: D buys an old painting from an art dealer, and reasonably believes that the
art dealer has good title. In fact, the painting was stolen from P years before. D keeps the
painting in his house for 10 years.
Answer: D is liable for conversion, notwithstanding his honest mistake about title.

Trespass of Chattels:
Elements for trespass of chattels:
1) Intent to interfere with the use & enjoyment of
a. Desire to interfere
b. Know that interference is substantially certain to occur
2) Chattel
3) Of another

The inference is the main difference between conversion of chattel & trespass of chattels

Nominal damages are OK (Lady touching dog).

Key Sentence: Trespass to chattels must prove intentionally, w/o consent, physically
interfered with another’s chattel is liable only if there results harm to the chattel.

Example: D takes P’s umbrella in a restaurant, thinking it’s his own

Answer: Mistake is no defense; therefore, this is a trespass of chattels

Example: D, while driving either carefully or carelessly, hits and damages P’s car without
intending any contact.
Answer: Because of the lack of intent, there is no trespass to chattels (rather look to
negligence)
Must be some sort of damage. Example: D picks up P’s umbrella, realizes the mistake,
and immediately puts the umbrella down. No trespass to chattel. HOWEVER if D picks
up P’s umbrella, walks around the block with it, and returns it after noticing the mistake,
this is trespass to chattels.

Trespass of Chattels vs. Conversion of Chattels:

The difference between these intentional torts is the degree of damaged inflicted on the
chattel.

Conversion – substantial dominion and control (may be required to pay full value of
chattel)

Trespass – can include dispossession, some use, or intermeddling with the chattel that
caused some damage, but not damage sufficient to pay full value of the chattel.

Example of Trespass – “Joy Ride” of a car – there is dispossession of this chattel, but the
severity would not require the defendant to pay the full value of the chattel

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EXAM TIP: **If you don’t know the damages to the chattel, you can bring up both
trespass of chattels and conversion of chattels if you are unclear to the extent of the
damages. **

Intentional Infliction of Emotional Distress

Key Sentence: An actor who by extreme & outrageous conduct intentionally or recklessly
causes severe emotional disturbance to another is subject to liability for that emotional
disturbance &, if the emotional disturbance causes bodily harm, also for the bodily harm.

*Look for this tort whenever one person does something to another that is extreme &
outrageous.

Intentional Infliction of Emotional Distress

1) Extreme & outrageous conduct

2) Intentionally or recklessly

3) Causes severe emotional distress to another

Reckless conduct:
Is the actions of one who knows of the risks associated with the act and does not take
precautions to prevent the risks from occurring.

Extreme & outrageous:

In determining whether the defendant’s conduct is sufficiently extreme & outrageous,

courts have tended to emphasize that the conduct is:

(a) Repeated or carried out over a period of time,

(b) An abuse of power by a person with some authority over the plaintiff,

(c) Directed at a person known to be especially vulnerable.

Severe emotional distress:

This can be proved without presence of physical harm if the distress is severe or
debilitating and a causal link between the conduct and the distress exists. This must be
proved by expert testimony. distress that shocks the conscience of another

Also, where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress:

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

(b) To any other person who is present at the time, if such distress results in
bodily harm.

**A single request for sexual contact might be offensive but is usually not sufficiently
outrageous; whereas, repeated and harassing request for sexual attention can be
outrageous.

Facts to be on the lookout for: (1) P is “humiliated” or “suffers great distress” (2)
business dispute where one party spies, follows or harasses the other.

Need to Know:

Insults are generally not sufficiently outrageous.

An overly sensitive person is of no concern unless the defendant knows of the persons
heightened sensitivity.

Medical attention is required. Not enough to be merely outraged

Physical manifestations (sleeplessness) is not necessary if plaintiff can prove anguish,

medical attention and the act was “outrageous”

Insult vs. Outrageous

Insults are usually not sufficient to intend to inflict emotional distress. The defendant’s
acts must be outrageous.

Defenses to Intentional Torts:

Consent: can negate intent and can also be an affirmative defense. Can be
exceeded and can be revoked.

Parrot consent – where a person reasonably believes that a person has consented.

Explicit Consent:
Verbal consent; outward manifestation

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If B asks to come on A’s land, and A says ‘yes,’ B is not liable for trespass, even if A
secretly meant ‘no.’

Implied Consent:
Consent conveyed through the conduct or actions of another. O’Brien (line for
inoculations)
Community custom (ringing a door bell is implied consent to trespass, unless there is a
sign posted)

What’s going on in the mind of the consenter?

- Apparent Consent – consent is never thought nor wanted, but their actions provide the
needed consent
- Informed Consent – consent to the touching, but aren’t informed of alternatives or
results of the touching

Invalidating manifestations of consent:

Relationship of parties:
Positions of power (i.e. Robins v. Harris) courts held these relationships do not effect the
nature of the consent.

Employer v. Employee:
Economic duress is not a defense to consent because employee has choices such as
quitting the job.

Incapacity:
- In order for consent to be effective, the consenter must have the capacity to provide
consent; this can be affected by age, mental incompetence and drunkenness.

Beyond the scope of consent given:

- Plaintiff gives consent for one act, but defendant goes beyond that consent

Example: P consents to operation on left arm. While under anesthetic, the doctor decides
that P’s left ear need an operation as well, and does it. P’s consent does not block an
action for battery for the left-ear operation, since the operation went beyond the scope of
P’s consent.
*EXCEPTION: In the surgery case, an emergency may justify extending the surgery
beyond that consented to.

Fraud:
- Consent is invalid if it is induced by fraud that relates to some essential aspect of
transaction

Duress:
- Consent that is given out of duress is not valid consent

Consent to criminal acts:

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- If A and B consent to fight each other, both might be liable for battery on each other
even though they both consented.

Consent as a matter of law: Even if P is incapable of truly giving consent, consent will be
implied as a matter of law if these factors exist: (1) P is unable to give consent; (2)
immediate action is necessary to save P’s life or health; (3) there is no indication that P
would not consent if able; and (4) a reasonable person would consent in the
circumstances.

Self-Defense:
1) Force that is
a. Reasonable
2) May be used in defense of
3) Bodily harm that is
a. Harmful
b. Offensive
c. Immediate
4) And the victim knows that the apparent belief is reasonable

*Provocation is not sufficient to raise the self-defense privilege.

Amount of force allowed: only what reasonably appears necessary to prevent death or
serious bodily harm.

Deadly force: Force intended to inflict death or serious bodily injury is only justified if
the victim reasonably believes she will suffer serious bodily injury or death from the
attack.

Preemptive Strike: not justified under common-law rules because this is seen to
accelerate violence where the use of force could have been avoided.

Retaliation: After the initial attack and conveyance of retreat by aggressor, victim cannot
attack under “self defense”

Trespass:
This does not constitute the need to use deadly force.

Recovery of personal property:

- May use reasonable force when in “hot pursuit” of the wrongdoer (b/c waiting on police
would make both wrongdoer and chattel difficult to locate).
- Victim acts at his own peril. (If his acts to reclaim chattel injures an innocent, then he is
liable to the other.)

Defense of Others:

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Right to defend third persons the same as you do yourself, response must be reasonable,
response must be in apparent belief of harmful or offensive bodily contact or against
confinement.

Defense of Property:
Actor is privileged to use reasonable force to prevent a tort against his real or personal
property. However, this does not excuse force against an innocent party.

*Use of deadly force or force intended to cause serious bodily harm is not justified to
protect a home, unless the intruder threatens the occupants’ safety, at which point the
defense would turn from defense of property to self-defense.

Mistake: If the owner’s mistake is about whether the intruder has a right to be there, the
owner’s use of force will not be privileged.

Example: D reasonably believed that P is a burglar. In fact, P is a friend who has entered
D’s house to retrieve her purse, without wanting to bother D. Even non-deadly force by
D will not be privileged

Necessity:
Public Necessity Rule:
A privilege to enter the land of another, including destruction and removal, is a privilege
if it is reasonable to believe that it is necessary to act for the greater public good.
The private necessity privilege:
A person is privileged to trespass or enter if you reasonably believe that doing so is
necessary to prevent harm to yourself, your family, or your property.
*Value life over property*

Negligence
Negligence:
The Prima Facie Case for Negligence:
1) The defendant owed plaintiff a legal duty;
2) The defendant, by behaving negligently, breached that duty;
3) The plaintiff suffered actual damage;
4) The defendant’ negligence was an actual cause of this damage; and
5) The defendant’s negligence was a proximate cause of this damage.

*On exam check for auto accidents, there are few that don’t involve a negligence issue*

Negligence may be any conduct that creates an unreasonable risk of harm to others. It is
actionable as a tort when that risk comes to fruition in actual harm.

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 1) Duty (a legally recognized relationship between two parties)

a. Standard of care  the defendant must act as a reasonable person must act
in the same or similar circumstances to avoid reasonably foreseeable risks
of harm to others. (defendants must act reasonably)

2) Breach of the Duty  Defendant acted negligently, breaching his duty

3) Suffered Actual Damages  nominal damages do not exist, there must be actual
compensable damages (this occurs because of the intent issue) (there would be a
clog of fraudulent claims if nominal damages were allowed)

4) Actual Cause – “But For Test “ (One Defendant) or “Substantial Factor Test”
(Multiple Defendants)

5) Proximate Cause – (legal cause, foreseeable) (what risks are in the scope of
foreseeable risks that are driven by a person’s negligence)

Duty
The duty owed to all people generally—the standard of care they owe—is to exercise the
care that would be exercised by a reasonable and prudent person under the same or
similar circumstances to avoid reasonably foreseeable risks of harm to others.

The general principle is that the care employed by a reasonable man must be
proportionate to the danger of the activity.

A person laboring under a physical disability such as defective vision is not required to
exercise a higher degree of care to avoid injury than is required of a person under no
disability.
Reasonable Person Standard:
1. Physical Disability- The conduct of an actor with physical disabilities is
negligent only if it does not conform to that of a reasonably careful person
with the same disabilities.
2. Mental Disability- neither insanity nor deficiency relieves the actor from
liability. The conduct must conform to the general standard of care of a
reasonable person
3. Intoxication- does not release defendant; held to the standard of a reasonable
sober person
4. Children-children are free to enjoy traditional childhood activities without
being held to an adult standard of care. Children must conform to the conduct
of a “reasonably careful person of the same age, intelligence, and experience.”

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 a. Exception- where a child engages in a potentially dangerous activity that
is normally pursued only by adults he will be held to the standard of care
that a reasonable adult doing that activity would exercise.
5. Superior Knowledge- The standard of the reasonable man requires only a
minimum of attention, perception, memory, knowledge, intelligence, and
judgment in order to recognize the existence of the risk. If the actor has in fact
more than the minimum if these qualities, he is required to exercise the
superior qualities that he has in a manner reasonable under the circumstances.

Children:
Children are held to the standard of care of a reasonable child of the same age,
intelligence, and experience.
- Children involved in adult activities (e.g., driving a car, firing a gun), will be held
to an adult standard of care
- Rule of Sevens – some jurisdictions presume children 14 and over are presumed
capable of negligence; children between ages 7-14 are presumed incapable of
negligence; below 7, incapable as a matter of law.

Mentally incompetent:
Neither insanity nor mental deficiency relieves the actor from liability, and his conduct
must conform to the general standard of care of a reasonable person under similar
circumstances.

Intoxicated:
Reasonable person of standard of care

Physical Attributes:
The defendant’s own physical attributes are considered:
- So if defendant is blind, he’ll be held to a standard of care for like blind people

Experts:
Standard of care does not change if you are an expert  jury may take into consideration
that persons exceptional knowledge or skill that the defendant has in whether they acted
reasonably.

Constructive Notice:
How do you prove that the defendant should have known a danger existed? The chief
method is approved by the courts is to show that the substance has been there for a
relatively long time. The jury is then permitted to conclude that a reasonable person
should have discovered and remedied it. When such proof is presented, courts may say
that the defendant was on “constructive notice” of the danger, meaning only that he
should have discovered it.

Custom General Rule:

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A departure from the custom of the community, or of others in like circumstances, in a
way that increases the risk is evidence of that person’s negligence but does not require a
finding of negligence.

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 Breach of Duty
(1) Reasonable person standard of care
Failure to act as a reasonable person under similar circumstances or fail to avoid
reasonably foreseeable risks of harm

Social utility:
Is the social value of the defendant’s action > the foreseeable harm. If activity is a vital
public service & a matter if high social utility, then defendant is NOT negligent!!

(2) Negligence Per Se (often the most tested issues in all of torts!!)
*Look for statutory language and if it relates to a safety issue, neg. per se is usually the only
issue** Good way to start answer is: “D is negligent if, without excuse, D violates a statute that
is designed to protect against the type of accident D’s conduct causes, and the accident victim is
within the class of persons that statute is designed to protect.”

(Martin v. Herzog pp. 127)

A state statute mandated by the legislature defining the reasonable conduct for a certain
type of situation. Most often-found establishing safety standards for an industry. Meaning
the violation of the statute actually determines the actor’s negligence.

The effect of establishing negligence per se through violation of a statute is to

conclusively establish the first two elements of a cause of action in negligence.

Was the harm that occurred the type of harm that the statute was designed to prevent

Negligence per se:

In order to replace a common law duty of care with a duty of care from a statute or
regulation, the following elements must be met:
1. The statute must clearly define the required standard of conduct
2. The statute must have been designed to prevent the type of harm that the
defendant’s act or omission caused.
3. The plaintiff must have been a member of the class that statute intended to
protect.
4. The violation must have been the proximate cause of the injury
***Duty & Breach have been established, actual damages occurred, use “but for” test for
actual causation, Element 4 must be discussed for proximate causation!!!***

But the defendant can avoid liability by proving either that:

1. The violation is reasonable because of the defendants incapacity
a. Cases where the violator was too young, or did not have the
mental capacity, to be charged with negligence.
2. Defendant was reasonably unaware of particular occasion for
compliance
a. Cases where a night driver has a tail light out unexpectedly &
is unaware of it

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 3. Defendant is unable after reasonable diligence or care to comply
a. Cases of impossibility
4. Defendant was confronted by an emergency not due to his own
misconduct that prevented compliance
a. Unexpected failure in the steering or braking system, a blowout
of a tire thought to be in good condition
5. Compliance would have been more dangerous than violating the
statute
a. The law requiring people to walk facing traffic, but due to
particular circumstances, it would involve a greater risk to do
so

(3) Res Ipsa Loquitur

*(i.e. a plane crashes to the ground & no clues as to what caused the accident or P gets surgery
and something unexpected results (wrong body part removed))

A doctrine of circumstantial evidence of negligence. It permits the fact-finder to infer

negligence where there is no direct evidence of negligence. Byrne v. Boadle (flour)

To benefit from this doctrine, P must prove (by a preponderance of the evidence) that:
1) There is no direct evidence of how the D behaved in connection with the event
that caused the injury
2) Accident wouldn’t normally occur in the absence of negligence
3) Defendant was in exclusive control of the instrumentality causing the injury.
a. Exclusive control / sole control of the instrumentality that caused the
injury
b. Exclusive control has been relaxed since early common (sitting on a chair
in a store)
i. If jury can reasonably find that defendant’s control was sufficient
to warrant an inference that the defendant was more likely
responsible of the incident than someone else, even in the absence
of proof of absolute exclusivity and control over the
instrumentality of the defendant, the trial court must allow the jury
to draw the inference.
c. There cannot be any other explanations for the injury.
i. Warren – other possible explanations (mechanical problems with
car, muddy road?)
4) P did not voluntarily contribute to the event that caused the injury

(4) The Hand Formula (Edison case pp. 150)

The defendant’s duty is a function of three variables:
1) The probability that of the harm
2) The gravity of the resulting injury
3) The burden of adequate precautions

Breach of Duty to the plaintiff can be summed as N = B < PL

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Negligence = N
Burden = B (Show the burden of avoiding the harm.)
Probability = P (Measuring the Foreseeability of an occurrence)
Liability = L (Magnitude of Harm)
PL = Foreseeable risk of harm D will have acted unreasonable when PL is greater than B.

*Using this formula depends on whether monetary amounts are present in the fact
pattern; that might be the best chance to apply the hand formula.

**Not wrong to use it, but not always helpful to use it.

But the variables should be taken into consideration when analyzing the reasonableness.

Actual Damages
Damages occur to property or personal injury.

Cause in Fact
1. But For Test: But For the defendant’s negligence plaintiff would not have been
injured.
1. Two persons causing separate or divisible injuries
a. So far as two injuries are separate, liability can be apportioned by
causation. Each tortfeasor will be liable for the harms that tortfeasor
caused and no more.
2. Two persons causing a single indivisible injury
a. When two defendants cause a single indivisible injury to plaintiff
both are subject to liability and two “But For” tests must be used.
b. To assign liability for harm to the multiple defendants one must
determine which fault-apportionment rule will be used.

You can have multiple defendants acting under the “But For” Test, concurrent causes.

The Lost Opportunity Rule: Lord v. Lovett

A plaintiff may recover for a loss of opportunity injury in a medical malpractice
case when the defendant’s alleged negligence aggravates the plaintiff’s
preexisting injury such that it deprives the plaintiff of a substantially better
outcome.

Three Approaches to determine causation:

1. Traditional Approach (minority approach)- A plaintiff must prove that as a
result of the defendant’s negligence, the plaintiff was deprived of at least 51%
chance of a more favorable outcome than she actually received.
2. Second Approach- The causation requirement is relaxed by permitting
plaintiffs to submit their cases to the jury upon demonstration that a
defendant’s negligence more likely than not “increased the harm” to the
plaintiff or “destroyed a substantial possibility” of achieving a more
favorable outcome.

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 3. Third Approach (majority approach) - lost opportunity for better outcome
is, itself, the injury for which the negligent injured person may recover. If
plaintiff can establish the causal link b/t the defendant’s negligence and the
lost opportunity, the plaintiff may recover that portion of damages actually
attributable to the defendant’s negligence.

Dillion Rule: When damages caused were only a small portion of the total damages then
defendant is only liable for that small portion of damages.

When you have multiple defendants acting under the “But For” Test, concurrent causes.

1. Substantial Factor Test: (Anderson) When there are duplicative causes each of
which on its own is sufficient to cause the entirety
of the plaintiff’s damage. (multiple defendants, each
defendant’s act is sufficient to cause the damage in its
entirety) and “But For” test produces clearly wrong
results. Allows plaintiff to relax the standard of
causation.

2. Alternate Causes: (Summers v. Tice) Established when there is more than one
defendant but only one cause of the injury rather than
require the plaintiff to establish actual causation, the
court will shift the burden of proof and require the
defendants to prove they did cause the damages. (multiple
defendants; only one of the defendants action could
cause the damage)

Scope of Risk or “Proximate Cause” Element

Plaintiff must establish that the harm suffered by the plaintiff is within the scope of
foreseeable risk created by the defendant’s negligence.
(1) Plaintiff was foreseeable
(2) Harm suffered by plaintiff was within the scope of foreseeable risks created by
defendant’s negligence

Superseding Cause – causes that are unforeseeable

A “superseding” force is a force coming into being after the D’s negligent act, which
cancels the D’s liability by breaking the “chain of causation” from D’s act to the P’s
injury.
A force is generally characterized as a superseding force when its occurrence appears
extraordinary under the circumstances.
(1) “Forseeability” If an intervening force is unforeseeable; it will normally be
viewed as superseding.
(2) A superseding force is not considered “within the risk” created by D’s original
act.

Intervening Cause – causes that are foreseeable

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Where the intervening occurrence was foreseeable by a defendant, the causal chain of
events remains intact and the original negligence remains a proximate cause of P’s injury;
- “Result” must be foreseeable

Differences between Intervening and Superseding Causes:

Intervening:
The case where the company decided to put the vat of molten liquid near the road at a
construction site rather than away from traffic.
A car crashing into the vat of molten liquid was a intervening cause because that was
foreseeable (both the driver and the company were negligent) (in assessing responsibility
for multiple defendants use either joint and several liability or proportionate share
liability)
Superseding:
Airplane propeller falling off the airplane at 50,000 feet into the tub of liquid is
unforeseeable therefore it is a superseding cause

Rescuers and doctor’s malpractice is always foreseeable and so is a doctor’s malpractice

Thin Skull Rule: A defendant may be liable for the full extent of a plaintiff’s harm, even
where the extent of that harm was unforeseeable and where the other elements of a prima
facie case were established.

Unforeseeable Plaintiff Rule: a defendant owes a duty of care only to those who are in
the reasonably foreseeable zone of danger.

Since proximate cause is left to the jury we need to show both sides of the argument
1. This is why the injury was foreseeable
2. This is why the injury was not foreseeable
3. Conclusion doesn’t matter as long as the argument is thoughtful

Rescue Doctrine
A rescuer can recover from the defendant whose negligence prompts the rescue.
(1) It either rejects forseeability or
(2) Shows that a rescue attempt is foreseeable.

Fault Apportionment Rules:

Joint and Several Liability- Where the tortious acts of two or more wrongdoers join to
cause an indivisible injury, an injury that from its nature cannot be apportioned with
reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held
jointly & severally liable for the entire damages and the injured party may proceed to
judgment against one separately or against all in one suit.

Just say, “If this is a J&L jurisdiction then all the defendant’s will be held liable.”

Proportionate Fault Liability (Comparative Fault)- Same as above, but here the jury
is left to decide the % of fault amongst the defendants.

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Just say, “ If this is a PFL jurisdiction then defendants will be held liable in proportion to
their fault as determined by the jury.”

Ex. If defendant injures plaintiff’s leg and suffers permanent loss of the function of that
leg and then a robber shots the plaintiff’s leg and the leg is amputated the robber is only
liable for damages between the bad leg and the amputated leg.

Where a small number of defendants have engaged in substantially simultaneous culpable

conduct imposing similar risks on the victim, courts have required that all such
wrongdoers be joined as defendants.

Defenses to Negligence
Contributory Negligence (All or nothing approach)
At common law, the doctrine of contributory negligence applies. It provides that a
plaintiff who is negligent, and whose negligence is a proximate cause of his injuries, is
totally barred from recovery.

The defendant must go through the exact same negligence analysis in order to establish
negligence on the part of the plaintiff.
- If Contributory Negligence exists in a state, then this BARS RECOVERY.
- A defense to Negligence, BUT NOT INTENTIONAL TORTS

Example
Minors go to a bar, are not i.d.’d, get legally drunk, and after driving, hit a tree. Minors
sue bar owner.
Defendant is liable for negligence. 1) Duty (via negligence per se) 2) Breach 3) damages
4) causation
D has a duty under the statute to not serve alcohol to minors. He did not check the id. The
minors are a class of people the statute was intended to protect

Duty – The minors have a duty to act as a reasonable person would act under the same or
similar circumstances. If they fail to act this way, they will be contributory negligent.

Exceptions:
1. Violation of a safety statute by defendant
Where defendant violates a safety statute, giving rise to negligence per se, and
the statute exists to protect members of the plaintiff’s class against their own
negligence contributory negligence will not apply.
2. Willful and wanton misconduct by defendant
Where the defendant’s conduct is “willful and wanton” or “reckless”,
contributory negligence does not apply.

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 3. Employee Safety
Modern view work comp statutes allow plaintiff to recover regardless of fault.
However if the assumption of risk is “unreasonable” by the employee
contributory negligence may be asserted.

Property Rights and Contributory Negligence

Not contributory negligent for using your land the way in which you see fit. With regards
to property rights, there is entitlement to the rights of your property.

Comparative Negligence
Most states have replaced contributory negligence. Comparative negligence rejects the all
or nothing approach of contributory negligence and instead divides the liability between
P&D in proportion to their relative degrees of fault.

Factors for assigning % of responsibility:

1. The nature of the person’s risk creating behavior 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
2. The strength of the causal connection between the person’s risk creating
conduct and the harm.
3. The harm itself

*Comparative negligence doctrine applies even where the defendant’s tort is an

intentional one.

Pure Comparative Fault

Plaintiffs may recover some percentage from liable defendants, regardless of the extent of
their own negligence.

Modified Comparative Fault

Plaintiffs are allowed a partial recovery, until the plaintiff reaches a certain level of
culpability for her own actions.
(1) Greater than 50 percent Approach
a. Plaintiff is barred from recover only when she is more negligent than
the defendant.
(2) Less than 50 percent Approach
a. Plaintiff is barred from recovery when she is equal to or more
negligent than her defendants.

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Comparative Fault
Comparative fault = comparing the plaintiff’s fault with that of the defendants (i.e. –
Plaintiffs damages 10k 5%; def. 1 = 5%

Comparative Fault reduces the plaintiff’s recovery by the percentage of her responsibility
for the injury attributable to the plaintiff.
- Restatement 463

Assumption of Risks
P is said to have “assumed the risk” of certain harm if she has voluntarily consented to
take her chances that harm will occur. Where such an assumption is shown, the plaintiff
is, at common law, completely barred from recovery

A subjective standard used to bar plaintiffs from recovery Restatement 496

(1) Knowledge of the risk
a. The plaintiff must have actual and conscious knowledge of the
particular risk
(3) Appreciated the risk
a. Must know the magnitude and implications of the risk
(4) Voluntarily exposed himself to that risk
a. Plaintiff must voluntarily expose himself or his property to the risk to
assume the risk
b. Court’s sympathy toward the plaintiff or empathy for predicament may
influence the interpretation of voluntary

Two Types of Assumption of the Risk: Express and Implied

Express Assumption of Risk

The parties’ agreement (in writing or otherwise) that will absolve the parties of the risk

Courts will invalidate agreements when:

(1) Plaintiff assumes the risks of very reckless conduct.
(2) There exists a gross disparity in bargaining power and plaintiff has little
choice but to assume the risk (i.e. patient in emergency conditions if forced to
sign a waiver of liability for the hospital in order to receive the treatment that
he needs to live)

Implied Assumption of Risk

Exists when the plaintiff’s voluntary exposure to risk is derived merely from her
behavior, and not from explicit assent; there is no agreement between the parties
(1) Primary- Defendant owes no duty to plaintiff
(2) Secondary- Defendant owes plaintiff a duty & breaches that duty, but plaintiff
assumes the risk anyway.

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