I.

Duty
a. General Duty of Reasonable Care: an actor owes a duty of reasonable care
under the circumstances to those persons who are foreseeably exposed to
physical risks arising from the actors conduct (pg 242).
Cases: MacPherson v. Buick Motor Co. (pg. 242)
Summary: Expands duty principle of Thomas v. Winchester from just poisons,
explosives (inherently dangerous objects). If the nature of a thing is such that it is
reasonably certain to place life and limb in peril when negligently made, it is then
a thing of danger. Its nature gives warning of the consequences to be expected. If
to the element of danger there is added knowledge that the thing will be used by
persons other than the purchaser, and used without new tests then, irrespective of
contract, the manufacturer of this thing of danger is under a duty to make it
carefully. There must be knowledge of a danger, not merely possible, but
probable. Whether a given thing is dangerous maybe a question for the court or
the jury. There must be knowledge that the danger will be shared by others than
the buyer (pg 244). If danger was to be expected as reasonably certain, there was
a duty of vigilance, and this whether you call the danger inherent or imminent.
The obligation to inspect must vary with the nature of the thing to be inspected.
The more probable the danger, the greater the need of caution (pg. 245-246).
b. Limited Duty: Duty to Act, Assist, or Rescue
1. Misfeasance risks of harm arise out of ones conduct
2. Nonfeasance risks of harm did not (didnt do anything,
someone was hurt).
Summary: Courts have allowed claims based on misfeasance and disallowed
claims premised on nonfeasance (pg. 255). Courts restrained from creating a duty
in nonfeasance situations due to concerns with liberty and the imposition of
freedom of action and free moral agency. Participation by the defendant in the
creation of the risk, even if such participation is innocent, is thus the crucial factor
in distinguishing misfeasance from nonfeasance. There are exceptions where a
duty to act is imposed.
i. Exceptions Where Duty to Act is Imposed
3. Special Relationships
a. parent/child
b. teacher/student
c. sea captain/sailor
d. Coadventurers
4. contractual relationships where a party has agreed to
provide aid (pg. 270).
5. situations where a party has voluntarily begun to assist.
a. One view: no liability if volunteer quits, leaving the
other party no worse off then he was before.
b. Volunteer is held to a standard of reasonable care
and may not quit if it is unreasonable to do so.

6. where a statute imposes a duty to assist.

7. Incident prior conduct creating the risk.
a. Where a party negligently injures another, there is a
duty to assist the person in peril.
b. Also there is a duty when a persons non-negligent
conduct places a person in peril (pg 270).
8. Intentional Prevention of Aid by Others must allow others
to provide aid if imminent physical harm is involved (pg.
270).
c. Limited Duty: Owners and Occupiers of Land (Ruvalcaba Case pg. 276)
i. Situation in which landowner is liable
1. defect on the premises
2. arising from activity or instrumentality on the land
ii. To Whom Landowner owes Duty- Status Trichotomy
1. Invitee Has consent of landowner and presence was
mutual benefit to both parties. Potential pecuniary profit to
landowner test or public invitation test (pg. 284). Duty: to
use reasonable care to protect an invitee from conditions
that create an unreasonable risk of harm of which the owner
know or by the existence of reasonable care would
discover.
2. Licensee Has consent of landowner, a social guest.
Benefit is to licensee. Duty: to not injure the licensee
willfully and warn of or make safe known dangerous
conditions.
3. Trespasser Does not have consent to be on property.
Duty: not to cause injury willfully, wantonly, or through
gross negligence.
iii. Exceptions Traps and Attractive Nuisances (pg. 286).
iv. New Test Rowland Jurisdictions (pg. 292).
1. Whether in the management of his property he has acted as
a reasonable man in view of the probability of injury to
others, and, although the plaintiffs status as a trespasser,
licensee, or invitee may in the light of the facts giving rise
to such status have some bearing on the question of
liability, the status is not determinative.
d. Major Tort Law Policy Considerations
1. Allocation of Loss (compensation) ability to spread loss
in an accident.
2. Fairness should be fair, just, moral.
3.

Deterrence should reduce level of accidents

4.

Economic Considerations should reduce costs of

accidents and not be an economic burden on productive

endeavors.
5. Administrative Concerns of Courts Creation of a duty
should allow the development of workable legal rules in
analyzing the elements of the negligence claim.
6. Legislative Considerations
e. Limited Duty: Emotional Harm without Physical Injury (pg. 310)
i. Impact Rule Allow recovery in cases where there was physical
impact but no physical injury.
ii. Zone of Danger I Allow recovery for emotional distress in cases
where person is in the foreseeable zone of physical danger but
escaped without physical injury.
iii. Zone of Danger II Allow recovery for emotional distress in cases
where person is in the foreseeable zone of physical danger, was not
injured, but suffered serious emotional distress at seeing the
serious injury to a close relative.
iv. Bystander Emotional Distress (pg 312).
1. Plaintiff actually observes the injury
2. Plaintiff closely related to victim
3. The resulting emotional disress is severe
4. Plaintiff suffer physical consequences from emotional
distress. (now many jurisdictions have abandoned this
requirement).
Cases: Dillon ruled that a defendant owes a duty to a plaintiff
if risk is foreseeable. 3 factors to determine if emotional injury
was reasonably foreseeable. 1) plaintiff located near scene of
accident. 2) shock resulted from a direct emotional impact
upon the plaintiff from sensory and contemporaneous
observation. 3) Whether the plaintiff and victim were closely
related.
Thing plaintiff may recover damages for emotional distress
by observing the negligently inflicted injury of a this person if
1) closely related to victim 2) present at scene of accident at the
time it occurs and is aware that it is causing injury to victim 3)
as a result suffers serious emotional distress, beyond that of a
disinterested witness and which is not abnormal response to the
circumstances.
Clohessy (pg. 318) bystander emotional distress is reasonably
foreseeable. Applies reasonable forseeability test. 1) bystander
is closely related to victim (flexibility varies among states). 2)
emotional distress caused by contemporaneous sensory
perception of the event or conduct that causes the injury or
viewing the victim immediately after the injury causing event

if not material change has occurred with respect to the victims

location and condition. 3) Injury to victim must be substantial,
resulting in either death or serious physical injury. 4) plaintiff
suffers serious emotional distress, beyond that of a
disinterested witness and which is not abnormal response to the
circumstances.
v. Emotional distress absent risk of physical harm (pg. 328).
1. Can recover for negligent mishandling of decedents body.
2. Can recover for erroneous notification of a loved ones
death.
f. Limited Duty: Responsibility for Conduct of Others Mental Health
Professionals Duty to 3rd Parties (Tarasoff pg. 368).
i. The therapist owes a duty to warn a would-be victim. Victim is
foreseeable and identifiable.
ii. Distinguished from Tindal where victim was not foreseeable and
non-identifiable where the court held the a therapist owes no duty
to warn a non-patient where the patient has not threatened to inflict
harm on a particular individual.
g. Limited Duty: Duty to protect against criminal activity (Delta Tau Delta
pg. 384.)
i. Common law imposes a duty on one party to take reasonable
affirmative security measures to protect the other party from
foreseeable criminal activity. These relationships include
landlord/tenant, business owner/patron, property owner/invitee,
hotel/guest, and employer/employee, and school/student.
ii. A landowner has a duty to take reasonable care to protect an
invitee from foreseeable third party criminal acts. Forseeability is
measured by different tests (pg. 386).
1. Specific Harm test: landowner owes no duty unless the
owner knew or should have known that the specific harm
was occurring or about to occur.
2. Prior similar incidents (PSI) test: a landowner may owe a
duty of reasonable care if evidence of prior similar
incidents of crime on or near the landowners property
shows that the crime in questions was foreseeable.
3. Totality of circumstances test: court considers all
circumstances surrounding an event including nature,
condition, location, prior similar incidents, to determine
whether criminal act was foreseeable.
4. Balancing test: court balances the degree of foreseeability
of harm against the burden of the duty to be imposed. As
the forseeability of and degree of potential harm increase,
so too does the duty to prevent against it. Test still relies on

PSI test to ensure that an undue burden is not placed on

landowners.
h. Limited Duty: Economic Loss without physical injury (pg. 415).
i. Generally, there is no duty to protect against negligent interference
with purely economic interests.
ii. Exception: defendant owes a duty of care to take reasonable
measures to avoid the risk of causing economic damages to
particular plaintiffs or plaintiffs comprising an identifiable class
with respect to whom defendant knows or has reason to know are
likely to suffer such damages from its conduct. Identifiable class is
not simply foreseeable class. The identifiable class must be
particularly foreseeable in terms of the type of persons comprising
the class, the certainty of their presence, the approximate number
of those in the class, and the type of economic expectations
disrupted.
i. Notes on Duty
i. The existence of a duty is ordinarily a question of law. However,
there are factual circumstances which give rise to a duty. The
existence of those facts must be determined by a jury (pg. 260).
II.

Breach (pg. 93).

a. Comprises of two components, foreseeable risks of harm and unreasonable
conduct. Breech determination is made through the lens of a reasonable
person. Customary practices in a trade are a factor to determine whether
the breech reasonable person standard has been met. Sometimes courts
will substitute safety statues for the reasonable care standard.
b. Definition: The defendants conduct is measured against that of a
reasonable prudent person acting under the same circumstances. This is a
purely objective standard, the jury evaluates the defendants conduct not
the defendants state of mind (Lussan case wasp/car accident pg. 96).
The juror should not self-identify.
c. Sudden emergency doctrine: Most jurisdictions provide a suggen
emergency instruction upon the defendants requires in appropriate cases
(pg 107).
d. Physically different characteristics: reasonable person is assumed to have
the relevant physical disability. If a blind person is involved, the standard
of care becomes that of a reasonably blind person under the same
circumstances. Physically disabled does not escape liability, may even be
held to a higher standard to exercise care.

e. Mentally disabled: usually classed with infants and are held liable for their
torts. No exception for sudden onset of mental illness unlike for sudden
onset of physical illness(pg 110). Case: Bashi car accident, woman went
crazy.
f. Children: Defendants child conduct compared to what other children of
like age, intelligence, experience, and maturity would have done under the
circumstances. Exception: When child undertakes a dangerous activity or
that of an adult, child should be held to an adult standard of care (pg. 115).
Exception in Washington State (pg. 116). Common law = under 7, no
negligence.
g. Balancing Risk vs. Untaken Precautions [B < P X L ] : Hands Risk
calculation, a calculus of the risk. Calls for balancing the likelihood of the
harm and potential seriousness of harm against the burden of taking
adequate precautions to prevent the harm. (pg. 121).
h. Role of custom (pg. 139): relevant customary standards are generally
allowed into evidence to guide juries in determining the reasonableness of
a partys conduct. Does not need to be universal, only well defined within
the same business. Ciircumstances surrounding the usual practice need not
be precisely the same, only substantially similar. Plaintiff must show
purpose of the custom is to protect against the kind of harm suffered by
plaintiff. Deviance from custom as evidence of unreasonable conduct or
compliance of custom demonstrates reasonableness. Custom evidence has
a 3-fold relevancy (pg 144 )Case: Trimarco Hooper (pg 147).
i. Alternatives to reasonable care standard. Violations of these =
negligence per se (violation of a statute especially designed to
protect).
1. Specific judicial standards (pg. 180) Supported by Holmes
but not Cardozo.
2. Safety statutes and regulations: before jury instruction
defining the violation as negligence per se, plaintiff must
show that he is among the protected class and that the
injury was caused by a harm against which the law was
designed to protect (pg 162). Procedural effects of
negligence per se on pg. 171.
3. Dog quarantine statute (pg. 166).
4. Excuses (pg. 168).
i. Res Ipsa Loquitur The Thing Speaks for Itself (pg. 183).
i. A form of circumstantial evidence.
ii. Jury may draw reasonable inference of negligence from the
circumstances surrounding certain accidents if certain conditions
are met.

1. accident produced a persons injury was one which does

not happen unless someone was negligent.
2. agent which caused the accident was under the exclusive
control of the defendant,
3. circumstances indicated that the untoward event was not
caused or contributed to by any act or neglect on the part
of the injured person.
iii. Defeat Res Ipsa
1. show one element cannot be established
2. show that defendant used due care.
j. Standard of care in professional malpractice
i. Custom sets the standard of care (pg 204).
ii. Expert testimony must show
1. duty of care under circumstances
2. identifies where dr. breached that duty.
iii. Informed consent (pg. 220)
1. professional standard dr would disclose those risks which
a reasonable medical practioner of like training would
disclose under similar circumstances,
2. lay standard disclosure duty is measured by patients need
for information
3. patient need standard dr must disclose those known risks
which would be material to a prudent patient in determing
whether or not to undergo suggested treatment.
4. CAUSATION (pg 221)
a. subjective standard plaintiff must prove that she
would not have consented to the proposed treatment
if she has been fully informed.
b. objective standard (test used most) whether or not
a reasonably prudent patient fully advised of the
material known risks would have consented to the
suggested treatment.
5. List of items requiring disclosure (pg. 221).
k. Notes on Breech: Circumstantial Evidence sufficient evidence to create a
jury-submissable question on the issue. Inference must be rational. Is it
more probable than not. Constructive knowledge: defendant should have
known grape was there based on time it was on the ground??
Good summary on pg. 234.

III.

Causation
a. requires a connection between the defendants negligent conduct and the
plaintiffs injuries.
b. But For Test
i. But for the negligent actions of the defendant, the plaintiff would
not have been injured.
ii. Criticism: can be under inclusive and sometimes over inclusive.
Example: pg 441
c. Substantial Factor Test
i. Asks whether the defendants negligent conduct was a substantial
factor in contributing to the plaintiffs injuries.
ii. factors other than the negligence of the defendant may have caused
the accident does not require a holding that plaintiff has failed to
make out a prima facie case. It is enough that he shows facts from
which the negligence of the defendant and the causation of the
accident by that negligence may be reasonably inferred (pg. 449).
Cases: Ingersoll
d. Untaken Precautions: Proving the Counterfactual
i. Case: Saelzer (pg. 455).
1. The plaintiff must establish, by nonspeculative evidence,
some actual causal link between the plaintiffs injury and
the defendants failure to provide adequate security
measures. Can they prove that more probable than not
that untaken precaution would have prevented defendants
injuries.
2. Where the injury that happens is precisely the risk that
made the defendants conduct negligent, court often find
that the connection between the risk and the harm to be
sufficient proof of causation. (pg. 465).
e. Multiple Parties: Apportionment of Damages or Joint Liability
i. When two or more independently negligent parties cause a single
indivisible harm, courts generally opt for holding each defendant
liable for the entire harm. The plaintiff is limited to only one
recovery of damages, not double recovery. (pg 468). Ex[;anation
(pg. 472).
f. Physicians Malpractice Reduces a patients already <50% chance of
survival.
i. Case: Herskovitz (pg. 482). Not necessary for plaintiff to
introduce evidence to establish that the negligence resulted in the
injury or death but simply that the negligence increased the risk of
injury or death.
g. Alternative Liability
i. When you cant prove who caused the harm.
1. Case: Summers (pg. 519): Negligence of both defendants
was the legal cause of the injury when there was not

sufficient evidence to show which defendant was guilty of

negligence which caused the injury.
ii. Market Share Liability (Hymowitz case (DES), pg 526)
1. Plaintiff must present sufficient evidence that the alleged
defective condition of the product was a but for cause or
substantial factor in contributing to the injuries.
2. Test
a. Manufacturers acting in parallel to produce an
identical, generally marketed product.
b. Need to define appropriate national market, should
be as narrow as possible.
c. Need to narrow time period in which to apply
market share theory.
d. Product causes injury many years later.
e. Evoked a legislative response.
IV.

Scope of Liability
a. Goal:to set the outer boundaries of liability in negligence cases. To
determine whether careless conduct of the defendant is sufficiently related
to the harm suffered by the plaintiff.
b. Direct Consequences Test
i. Harm to plaintiff directly caused by defendants negligence.
ii. UNFORSEEABLE intervening forces can cut off liability under
direct consequences test.
iii. Criticism: Both under and over inclusive and too expansive of
liability.
c. Foresight Test
i. Main test for scope of liability.
ii. Is the harm to plaintiff within the scope of foreseeable risks based
on negligence of defendant?
iii. Unforseeable Plaintiffs
1. Cases: Palsgraf No duty for unforeseeable injuries to
unforeseeable plaintiffs. This lies outside the scope of
liability.
iv. Unforseeable consequences
1. Cases: Juisti Defendant is liable if defendants negligence
created a reasonably foreseeable risk of the general kind of
harm that befell the plaintiff. The exact or precise manner
of the harm does not matter for purposes of scope of
liability.
v. Risk Standard: From 3rd restatement of torts actor should be held
liable only for harm that was among potential harms (foreseebale
harms) that made the actors conduct tortuous. Better than
unforeseeable harm standard (pg 563). Differences between the
two on (pg 564).
d. Intervening Forces: Criminal Conduct of a 3rd Party

i. Proximate cause test for defendants (pg 572).

1. tortfeasors conduct must have been a substantial factor in
bringing about the harm being complained of
2. there is no rule or policy that should relieve the wrongdoer
from liability because of the manner in which the
negligence has resulted in the harm.
3. the harm giving rise to the action could have reasonably
been foreseen or anticipated by a reasonable person. not
so strict as to require forseeability of exact manner of harm,
only general manner in which injury occurred.
e. Shifting responsibility
i. Forseeable 3rd party intervening conduct can sometimes be so
egregious that the court is motivated to concludr that they 3rd party
alone is responsible for the damages and that his conduct
supersedes the negligent conduct of the initial actor. [we did not
cover this in class] (pg. 578).
f. Exceptions to the Foresight Rules
i. Medical Malpractice Complications Rule (ARC case, pg 593): the
negligence of the wrongdoer in causing the original injury is the
proximate cause of the damages flowing from the subsequent
negligent treatment and holds him liable for those subsequent
injuries. Courts allow the injured plaintiff to sue the initial
negligent party for all the damages including those related to the
subsequent malpractice.
ii. Eggshell Plaintiff (pg.595): Tortfeasor runs the risk that the person
whom he injures may be in such a condition that the injury will be
far more serious then had the person been strong. Tortfeasor is
responsible for all the injuries which he inflicts even if a particular
injury may have been aggravated by a peculiar physical condition.
iii. Rescuer Rule (pg. 599): Actor is liable for the injuries sustained by
a person who is trying to rescue the actor from his own negligence.
Actor is also responsible for injuries sustained by a rescuer
attempting to help another person places in danger by the actors
negligent conduct.

10

V.

Damages
a. 3 main areas of personal injury damage recovery (pg 620).
i. Past/future earning power losses. Includes consideration of earning
capacity and not simply lost wages.
ii. Past/future medical expenses
iii. Past/future pain and suffering
b. Collateral source rule: pg 646
c. Notes (check pg 630).
i. Payments to the injured party from a collateral source are not
allowed to diminish damages recoverable from the tortfeasor. For
example, from a employment injury insurance.
ii. Courts must discount to present value lump-sum damages awards
intended to compensate for future medical costs or future lost
wages.
1. They need to take into account that money awarded today
can be invested to earn a return.
2. Must consider the effects of inflation.

VI.

Vicarious Liability (respondeat superior)

a. Where one party is liable for the negligence of another party by reason of
some relationship between parties (pg. 51).
b. Rationales in support of vicarious liability (pg. 52).
c. Control Test
i. An employee for vicarious liability purposes is a person who
performs services in the affairs of another and is subject to the
others control or right to control. (pg. 52)
ii. Control and right to control are the key criteria, not compensation.
iii. General rule: employer is vicariously liable for negligence of an
employee that occurs within the scope of the employment. The
scope of employment refers to those acts that the employee is
employed to do, as well as acts closely related such that they may
be characterized as fairly and reasonably incidental to carrying out
the objectives of the employment. (pg 53).
d. Independent Contractor-No Vicarious Liability Rule: Independent
contractors are not employees of the hiring party (pg 53) but analysis of
their relationship must be done to determine liability.
i. 10 factors considered in determining whether a person is an
employee or an independent contract. (Pg 56, from Kime v.
Hobbs).
ii. The right of control as to the methods or means used to complete
an assignment is the chief factor distinguishing an employment
relationship from that of an independent contractor.
iii. Franchise relationships: In determining whether a franchisor is
vicariously liable for the negligence of its franchisee, courts
closely examine the facts to determine if the franchisor in fact on a

11

daily basis controlled or had the right to control the daily conduct
or operation of the particular instrumentality or aspect of the
franchisees business that is alleged to have caused the harm. A
jury question may be presented if control or the right to control
daily operations is involved. (pg 60-61)
iv. Exceptions to IC-NVL Rule: hiring party can be held vicariously
liable for either (pg 59).
1. activities that are inherently dangerous (construction,
demolition, crop dusting).
2. activities that courts declare non-delegable duties. (duties
imposed by state or contract, duty of a common carrier to
passengers, landlord to maintain common areas).
e. Scope of employment analysis (from Pyne v. Witmer, pg 63).
i. Conduct of a servant is within the scope of employment if,
1. it is of the kind he is employed to perform;
2. it occurs substantially within the authrorized time and space
limits
3. it is actuated, at least in part, by a purpose to serve the
master.
ii. Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized
time or space limits, or too little actuated by a purpose to serve the
master. (from restatement 2nd)
iii. Generally, an employee traveling to or from work outside actual
working hours is not in the scope of employment. Exception exists
for employees who are caused by their employers to travel away
from a regular workplace or whose travel is at least partly for their
employers purposes rather than simply serving to convey the
employees to or from a regular job site. (pg 62).
iv. Once an employee abandons a frolic and reenters the scope of
employment, the employer will be held vicariously liable for
injuries caused by the employees negligence after reentry. The
burden is on the plaintiff to show the contemporaneous
relationship between tortuous act and scope of employment. (pg
63-64).
Frolic- pursuit of an employees personal business seen as unrelated
to employment.
Detour- an employees deviation for personal reasons that is
nonetheless seen as sufficiently related to employment
*Note pending change to scope of employment test in restatement
2nd, (pg 68-69) to focus more on intent.
**Another test is based on foresight. (Pg 69).
VII.

Wrongful Death (pg. 672).

a. Wrongful death statutes: cover loss to the beneficiaries
b. Survival statutes

12

i. Provide for the survival of a tort claim against a deceased

tortfeasor by allowing the claim to be maintained against the estate
of the tortfeasor
ii. Provide for the survival of a personal injury claim of a deceased
victim in the name of his estate for the damages accrued up to the
date of the victims death and accumulation of assets the decedent
would have accrued had the accident not happened.
c. Wrongful death statutes govern postdeath damages of the deceased and the
survival statutes govern predeath damages.
VIII.

Defenses
a. Contributory Negligence (pg 690) arises when the unreasonable conduct
of the plaintiff contributes to the plaintiffs harm. Only becomes relevant
after the plaintiff has established a prima facie case of negligence against
the defendant.
i. Must prove by a preponderance of the evidence that plaintiff fell
below the relevant standard of care and that the plaintiffs breach of
duty was a proximate cause of the plaintiffs injury.
ii. Duty is not an issue because every individual is considered to have
a duty to exercise reasonable care for their own well-being.
iii. Under contributory negligence, plaintiff cannot recover if their
unreasonable conduct contributes in any substantial way to her
injury (all or nothing).
iv. Last clear chance doctrine: plaintiff could still recover fully against
a negligent defendant upon proof that the defendant was more
culpable because he had the last opportunity to prevent the harm..
v. Defense cannot be used if defendants conduct was reckless or even
more culpable than plaintiff.
b. Comparative fault (pg 691) where both a plaintiff and a defendant are at
fault, they should share the responsibility rather than have it fall entirely
on one party or the other.
i. Pure comparative fault = negligent plaintiff recovers some
damages from the negligent defendant no matter how much at fault
the plaintiff is.
ii. Modified comparative fault plaintiffs recovery is barred if the
plaintiffs fault is greater than the defendants or as great as the
defendants (depending on jurisdiction).
iii. Arguments in favor of moving from contributory to comparative
(pg 693).
iv. Comparative cost approach: advocated by Judge Posner, to make
sense of comparative negligence is to assume that the required
comparison is between the respective costs to the plaintiff and to
the defendant of avoiding the injury. E.g. if each could have
avoided it at the same cost, they are each 50% responsible for it.
(pg 702).
v. What factors are considered under comparative fault: (pg 703).

13

vi. Set off: the party with the greater award against them is required to
pay the other party only the difference between the two rewards.
(pg 734).
c. Assumption of Risk (this defense falls under comparative fault)
i. Express assumption of risk (pg 706) one gives explicit
permission to release another party from an obligation of
reasonable care.
1. Factors considered to determine if a waiver is void (pg
707).
ii. Implied assumption of risk (pg 709) inferred from a partys
conduct and the circumstances. Looks to the plaintiffs state of
mind. Composed of three basic elements, the burden of proving
these elements is on the defendant.
1. knowledge of the risk
2. appreciation of the risk
3. voluntary exposure to the risk
iii. This assumption of risk is not typically an independent defense. It
operates as a comparative reduction of the plaintiffs recovery. (pg
718,721).
iv. Primary Assumption of Risk - Limited Duty
1. occurs when a party enters into a relationship with another,
knowing and expecting that the other person will not offer
protection against certain risks arising out of the
relationship. E.g. skiing, playing basketball, sitting in a
baseball stadium. (pg 723).
v. Secondary assumption of risk arises when defendant does owe a
duty of care to the plaintiff but the plaintiff knowingly encounters a
risk of injury caused by the defendants breach of that duty.
vi. Determining which applies turns on the nature of the sport and on
the parties general relationship to the activity (725).
vii. Exception: Professional Rescuer Rule: professional rescuers
(firefighers, police) have assumed the risks related to their jobs in
undertaking the employment. (728).
d. Statute of Limitations (pg 735).
i. Affirmative defense which a defendant must raise by motion or in
their answer or risk losing the defense.
ii. Typically courts say that the statute of limitation clock begins to
run when the claim accrues. Accrual of an action means that all of
the facts essential to a claimants right of recovery have occurred.
iii. Discovery rule: may postpone the commencement of the limitation
period until the claimant actually knows or reasonably should
know of the existence of the claim.
1. What must be discovered by the claimant? (pg 738).
a. The occurrence of the harm
b. The fact that the harm results from a wrongful act of
the defendant

14

iv.
v.
vi.
vii.
viii.
ix.
x.
IX.

c. The identity of the person committing the wrongful

act.
2. The discovery rule should not be satisfied until appreciable
injury becomes manifest (pg 738).
Interpreting a statute (pg 740).
Equitable Estoppel can squelch a Statute of limitations defense
(pg748).
Running of statute of limitations can be tolled (delayed) due to
disability, such as minority status, mental incapacity, or military
service (pg 748).
Ultimate repose statute: limitation that sets a maximum number of
years at the outside for a claim to be maintained (pg 749).
Charitable immunity (mostly abolished) (pg 751).
Spousal immunity (mostly abolished) (pg 752)
Parental immunity (more limited doctrine) (pg 754).

Intentional Torts relates to the purpose or desire of an actor to invade the

legally protected interests of another.
a. Intent: measured by a subjective standard, that is, the defendants state of
mind.
i. A person acts with the intent to produce a consequence if:
1. the person has the purpose of producing that consequence;
or
2. the person knows to a substantial certainty that the
consequence will ensue from the persons conduct.
3. Transferred intent (pg 771).
ii. Assault (pg 774)
1. act or an attempt or the appearance of an attempt, with
force or violence with intent;
2. to do some immediate physical injury to the person of
another
3. The display of force or menace of violence must be such to
cause the reasonable apprehension of immediate bodily
harm.
iii. Battery
1. violational act
2. intent to
3. contact
4. harmful or offensive nature
iv. Intentional Infliction of emotional distress
1. extreme and outrageous conduct
2. which is intended to cause and does cause
3. severe emotional distress to another
v. Conspiracy an agreement between two or more individuals to do
an unlawful act or to do a lawful act in an unlawful way.
vi. False imprisonment (pg 824-831).

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X.

1. Elements
a. willful detention
b. performed without consent
c. without the authority of law
d. plaintiff must be aware of the confinement (modern
cases challenge this rule, see pg 828).
2. A person may falsely imprison another by acts alone or by
words alone, or both operating on the persons will.
3. Plaintiff must prove the absence of authority of law in order
to establish the third element of false imprisonment.
4. Shopkeepers privledge (pg 825) grants authority of law to
shopkeepers- Three elements to Authority of Law.
a. Reasonable belief
b. Reasonable manner
c. Reasonable time
vii. Tresspass to chattels (pg 839)
1. intentionally dispossessing temporarily or using or
intermeddling with the chattel of another
2. D liable for damage or harm done to chattel (loss of use).
viii. Conversion (pg 839)
1. intentionally exercising dominion or control over a chattel
which seriously interferes with owners rights
2. D liable for full value of chattel (forced sale concept)
3. Factors to consider if chattel interference is conversion (pg
836-837).
Defenses to Intentional Torts
a. Consent (pg 845).
i. Actual or apparent: express consent
ii. Effective consent: consent is ineffective if the person lacks
capacity to consent to the conduct.
b. Self Defense and Defense of Others
i. Self defense can be a complete defense to an intentional tort where
the defendant used reasonable force that she reasonably believed
was necessary to prevent immediate harm. The defendant must
believe the force is necessary and it must be found to be reasonably
necessary from the reasonable persons perspective. (pg 851).
ii. Considerations
1. Actual or apparent necessity
2. Defendant believes necessary
3. Other concerns
a. reasonable force
b. retreat rules
c. verbal provocation
d. excessive force
c. Self defense of property

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i. Value of human life outweighs the interest of a possessor of land in

excluding from it those whom he is not willing to admit thereto.
(pg 862).
d. Necessity actions legally justified so as to precude liability for false
imprisonment. (pg 866).
i. Denfendants must have acted under the reasonable belief that there
was a danger of imminent physical injury to the plaintiff or to
others.
ii. The right to confine a person in order to prevent harm to that
person lasts only as long as is necessary to get the person to the
proper lawful authorities.
iii. Actor muse use the least restrictive means of preventing the
apprehended harm.
XI.

Trespass to land, Nuisance

a. Trespass to Land (pg. 883).
i. Intent to enter the property
ii. Tangible intrusion on the property to possession of another.
iii. Physical harm not requied
b. Nuisance (pg 883)
i. Private nuisance activity that interferes with the use and
enjoyment of someones land (pollution, noise, bad odors) Elements
listed on pg 185 of concise restatement.
ii. Public Nuisance acts which inconvenience or interfere with
public rights common to all (obstructing a highway, running a
whore house).elements listed on pg 181 of concise restatement and
pg 911 of vetri text which includes standing to sue.
c. Unreasonableness analysis in private nuisance conduce is unreasonable
where:
i. The gravity of the harm outweighs the utility of the conduct.
ii. The conduct is useful, b ut the harm cuase d by the conduct is
serious and compensation for it would not jeopardize the conduct.
iii. The harm is severe and greater than the injured party should bear
without compensation.
d. Separate criteria for injunctions of a nuisance (pg 897).

XII.

Abnormally Dangerous Activities

a. Strict liability applies
b. 6 factors to be considered when determining whether an activity is
abnormally dangerous (pg 917)
i. Existence of a high degree of risk of some harm to the person,
land, chattels of others
ii. Likelihood that the harm that results from it will be great
iii. Inability to eliminate the risk by the exercise of reasonable care
iv. Extend to which the activity is not a matter of common usage
v. Inappropriateness of the activity to the place where it is carried on

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vi. Extent to which its value to the community is outweighed by its

dangerous attributes.
c. Short comings of balancing approach to strict liability (pg 924).
XIII.

Products Liability
a. Historical development (pg 932)
b. Restatement (2nd) section 402a (pg 942).
i. One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property if,
1. the seller is engaged in the business of selling such a
products, and
2. it is expected to and does reach the user or consumer
without substantial change in the condition in which it is
sold.
ii. The rule stated above applies although
1. the seller has exercised all possible care in the preparation
and sale of his product, and
2. the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
c. The above rule is one of strict liability.
d. Exception: this rule does not apply to the occasional seller of food or other
such products who is not engaged in that activity as part of his business.
e. Types of Defects
i. Manufacturing Defects pg 944
1. a manufacturing defect is an imperfection, shortcoming, or
abnormality in a product that departs from its design
specifications and prevents the product from safely
performing its intended function.
2. determining a manufacturing defect product is compared
to the manufacturers own standards or specifications to
determine if there is a difference that makes the product
less safe.
3. Or proving that a product failed to perform safely in its
normal use is an alternative way of establishing a
manufacturing defect without necessarily showing an actual
deviation from design specs (pg 945, 954).
ii. Design Defects
1. design defect for products liability purposes exists when
safety hazards in the design could reasonably have been
eliminated.
2. Consumer expectations test (pg 959).
a. A product may be found defective in design if a
plaintiff demonstrates that the product failed to
perform as safely as an ordinary consumer would

18

expect when used in an intended or reasonably

foreseeable manner. This will lie in strict liability.
b. Elements
i. Defendant manufactured or sold the product
ii. That the product was unchanged from the
date of sale or that any changes were
reasonably foreseeable
iii. That the product was used in a reasonably
foreseeable manner
iv. That the product did not perform as safely as
an ordinary consumer would have expected
v. That the plaintiff was harmed and
vi. That the products design was a substantial
factor in causing the harm.
c. safety regulation violation
i. a product design that fails to comply with a
safety statute renders it conclusively
defective per se.
d. alternative proof used in consumer expectations test
(pg 990) to establish prima facie case.
e. Problems with consumers expectations test (pg
965).
f. Product can be found defective even if it satisfies
the ordinary consumer expectations test, if through
hindsight, the jury determines that the products
design embodies excessive preventable danger, the
risk of danger inherent in the challenged design
outweighs the benefits of such design (pg 992).
g. When CE test should be used (pg 995).
3. Risk-Utility Test
a. A product is defective as designed if the risk or
danger of the product outweighs the products utility
(pg 969).
b. Factors to be considered if a product is reasonably
safe (pg. 969).
c. Problems with risk-utility test (pg 975).
d. Risk-utility proof required to establish prima facie
case (pg 990) such as safer alternative design..
iii. Warning defects
1. plaintiff must prove that manufacturer failed to exercise
reasonable care in providing a warning.
2. Manufacturers duty to warn (pg 1009).
3. for strict liability, the risks to be warned of should be
reasonably foreseeable and there is no duty to warn against
scientifically unknowable risks.
4. adequacy of warning (pg 1005)

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f.
g.

h.
i.
j.
k.

l.

m.

XIV.

a. warning must be promininent

b. must attract users attention (position, size, coloring)
5. features of effective warnings (pg 1006).
6. principle criteria used to evaluate warnings (pg 1008).
7. Causation in warning defect cases
a. Prove product caused the injury
b. Prove warning would have altered users behavior
such as to avoid the injury.
8. Things to examine when proving a warning defect case (pg
1011).
9. Critisicism of warning defectiveness (pg 1011).
Prima facie case of strict products liability (pg 948, 1049), policies for
implementing products liability (pg 949).
Prescription Drugs Learned Intermediary Rule producer need only
warn the learned intermediary of the risk and may rely on the intermediary
to make reasonable choices and advise the patient. (pg 1027).
i. Pharmaceutical manufacturer relieved from strict liability when
(pg 1032).
1. the product is properly manufactured and contains adequate
warnings
2. its benefits justify its risks
3. the product was at the time of manufacture incapable of
being made more safe.
ii. There is no preemption for pharmaceutical companies when it
comes to design or warning defects.
Causation as to products liability
i. Same in strict liability as in negligence. (but for, substantial factor)
Market Share liability
i. Used when plaintiff cannot identify which manufacturer among
several produced the product.
Successor corporation liability (pg 1036).
Scope of liability in products liability (pg 1037).
i. Manufacturers can be held strictly liable only if the plaintiff was
engaged in a foreseeable use of the product at the time of the
accident.
Damages
i. Manufacturer has no duty under either a negligence or strict
liability theory to prevent a product from injuring itself. (pg 1039).
ii. General rule is that party may not recover for pure economic loss
based on strict liability principles. (pg 1040).
Defenses
i. Majority comparative fault applies in product liability (pg 1043).
ii. Minority view- refuse to apply comparative fault to product
liability cases.

Defamation

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a. Defamation is state law, not federal law, except insofar as 1st amendment
privledges are implicated.
b. Defamation a statement is considered defamatory if it holds the plaintiff
up to hatred, ridicule, or contempt, or if the statement lowers the esteem
and respect in which the plaintiff is held or causes people to shun the
plaintiff (pg 1059).
i. Must cause reputational harm, hurt feelings alone do not serve as a
basis for defamation.
ii. Must be believable to be defamatory.
iii. Must have a good reputation to begin with in order to be defamed.
iv. Name calling and hyperbole are not considered defamatory either
because they are pure opinion or because in context they could not
actually harm the plaintiffs reputation. (pg 1060)
v. Defamatory language needs to be considered in the context of the
publication as a whole.
vi. If a judge decudes that the communication is capable of having a
defamatory meaning, then jury decides if the audience understood
the statement as defamatory in context.
c. Opinion incapable of being defamatory as it cannot be shown to be true
or false. (pg 1061),
d. Defamatory statement must be capable of being perceived as defamatory
by some significant number of persons (pg 1061).
e. Can be written or oral or nonverbal through actions, photos, paintings.
f. Interpretation
i. Meaning and context where one portion of an article is
defamatory but another portion is not, the jury must decide
whether the defamatory portion is actionable in light of the entire
article.
ii. Inducement and Innuendo Where extrinsic facts are necessary to
make out the defamatory content of a statement - called libel or
slander per quod. Extrinsic proof is called inducement, defamatory
meaning based on extrinsic facts is called innuendo. (pg 1064).
iii. Colloquiem proof that defamatory statement is referring to the
plaintiff.
g. Group Libel for a member of a group to pursue an action based on
defamatory communications about the group, the plaintiff must show that
the group was sufficiently small so that she is identifiable.
h. Communication
i. in order for defamation claim, statement must be communication
of the reputation injuring statement to at least one person other
than the plaintiff.
ii. Single publication rule each edition of a book or issue of a
magazine supports only one defamation cause of action.
iii. Fault in publication in order to prove publication, plaintiff must
show that the defendants decision to communicate the defamatory
statement was either done intentionally or negligently.

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i. Falsity plaintiff must prove falsity as part of their prima facie case.
j. Causation plaintiff must show that the reputational loss or other
allowable losses were caused by the defamatory communication.
k. Damages (pg 1067, 1075).
i. Libel general damages and punitive
ii. Slander special damages
l. Slander (pg 1072).
i. Per se: slander must fall into one of the following categories:
1. serious Crime
2.
3.

Loathsome disease
Unchaste woman
Business reputation

4.
ii. per quod: slander that does not fit into CLUB categories.
1. plaintiff must prove special damages as a prerequisite to
recovery for reputational harm. Usually insurmountable
hurdle. (pg 1073).
m. Libel
i. Per se: defamatory on its face
ii. Per quod: defamatory only with extrinsic evidence
n. Defenses to Defamation (pg 1077)
i. Truth
ii. Absolute privileges
iii. Qualified privileges (pg 1078)
1. Statements made to protect ones own interests
(counterattack)
2. Statement made to protect the interests of a third party
3. Statements made to protect common interests
4. fair comment priviledge
5. fair and accurate report privledge
iv. Retraction if retraction is requested and adequately granted, the
retraction statute typically limits the damages recoverable. (pg
1082).
v. Statutes of limitations
vi. Mitigation of damages plaintiffs already bad reputation can
reduce damages.

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