Torts - Spring 2000 Professor Turkington Outline Textbook: Cases and Materials On The Law of Torts (3 Ed.), Christie, Meeks, Pryor, Sanders

Torts – Spring 2000
Professor Turkington
OUTLINE
Textbook: Cases and Materials on The Law of Torts (3rd Ed.), Christie, Meeks,
Pryor, Sanders
PART I: NEGLIGENCE:
I. INTRODUCTION
A. Prima Facie Elements (duty-breach-cause-damages):

1. P must establish that D owed P a duty to conform to a legal standard of
conduct for the protection of the P against injury (duty extends to
foreseeable P).
2. P must show that D breached the duty.
3. P must show that alleged negligent conduct was the proximate cause of
P’s injury.
4. P must show damages.
a. Usually physical injury or damage to property (we will
talk about emotional injury later).
B. Defenses:
1. Contributory negligence.
2. Comparative negligence.
3. Assumption of risk.
C. General Analytic Framework (like framework for intentional torts) :

1. P must establish each element by a preponderance of the evidence.
2. D can defeat with defenses.
D. Risk Theory (theory underlying negligence):

1. Risk = foreseeable, possible harm created by conduct.
2. Learned Hand Classic Formula: a risk is unreasonable when the
foreseeable probability and gravity of the harm outweigh the burden to D
of alternative conduct which would have prevented the harm (weighing
test).
3. In determining whether a risk is unreasonable, consider:
a. Foreseeability of risk/harm.
b. Gravity of harm that conduct would cause.
c. Cost of preventing the harm.
4. Risk theory has little to do with traditional negligence claims but is an
expanding tort – used as an instrument for changing public policy.
E. Distinguished from Intentional Torts:

1. No intent required – fault is included in notion of duty.
2. [?] Language of prima facie elements is purposefully ambiguous to allow
for interplay between court and jury:
a. Duty – question of law – court.
b. Breach - question of fact – jury.
c. Cause – question of fact – jury.
d. Damages – question of law – court (usually).
F. Negligence is always tied to litigation – can we get the claim to a jury?

II.DUTY - REASONABLE PERSON STANDARD
A. General rule:
1. ORPP: whenever you act, you have a duty to act like an ordinary,
reasonable, prudent person.
2. On top of ORPP standard, there is imputed to all persons a knowledge of
all things commonly known in the community.
a. All persons are imputed with knowledge of commonly
understood dangers (e.g., Delair where D held liable for
defective tires).
B. Subjective v. Objective Standard:

1. Rule is the objective test – not whether D intended to exercise due car, nor
whether D did the best he could to exercise due care, but whether his
conduct was that of an ORPP placed in the same or similar circumstances.
2. Objective standard preferred b/c:
a. B/w two innocent parties, one who caused the injury
should be liable.
b. Protect public safety and deter unreasonable conduct.
3. There is a constant tension b/w a fault system based on fairness
(subjective standard) and a system designed to protect public safety
(objective standard).
C. Subsidiary rules: there is a general rule for duty (ORPP) but then there are
subsidiary rules; these subsidiary rules will be part of the instructions to the
jury:
1. Age (subjective):
a. General rule: if D is a minor, the test is what is
reasonable conduct for a child of D’s age, intelligence
and experience under the circumstances.
1) Most courts agree, this rule applies whether the child is the D
(negligence) or the P (contributory negligence).
b. Two views on determining what constitutes a minor:
1) 3 age groups:
a) Under 7: no duty in negligence (not liable).
b) Age 7 to 14: what is reasonable conduct for a child of D’s age,
intelligence and experience under the circumstances.
c) Age 14 to 21: presumption of what is reasonable conduct for a
child of D’s age, intelligence and experience under the
circumstances BUT will depend on the circumstances.
1) Rationale: (a) unfair to hold minors to a standard to which
they cannot conform, and (b) promote the freedom and
spontaneous action of childhood (policy).
2) There is a minimal age at which D has the mental capacity required
such that it would make sense to hold the D liable in negligence.
c. Adult Activity EXCEPTION: when child engages in
adult activity, then minor is required to act like an ORPP
(see RSTMT § 283A).
1) Rationale: nature of activity poses significant threat to public
safety.
2) Criteria for what constitutes adult activity (two views):
a) Narrow: RSTMT two-prong test:
1) Activity primarily/normally engaged in by adults.
2) Activity that requires a license (e.g., boat, auto).
b) Broad: any activities which are dangerous (potentially
hazardous) and which pose a threat to public safety.
d. Generally, parents are not liable in vicarious liability for
the negligence of minors; however, one could argue that
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parents are negligent directly for allowing minor to

engage in conduct.
2. Mental condition (objective):

a. In judging D’s conduct, no allowance is made for
deficiencies in D’s mental capacity to conform to ORPP
standard (fact that D is mentally deficient, intoxicated or
insane is irrelevant).
b. In determining contributory negligence of the P, courts
may or may not consider the P’s mental capacity
(subjective standard); there is still much debate on this
issue.
3. Physical condition (subjective):

a. In determining the duty of the D, courts will take into
account the physical characteristics of the D.
4. Emergency (subjective):
a. D must act like an ORPP under the circumstances –
emergency is one of the circumstances to be taken in to
account.
b. Emergencies create the need for subjective standard in
instructions to the jury; fact that D is confronted with an
emergency which requires rapid decision is a factor
which may be taken into consideration in determining
the reasonableness of his choice of action.
c. However, D may be negligent in failing to anticipate the
emergency or in creating the emergency.
III.CAUSATION (FACTUAL CAUSE)
A. Proximate cause = factual cause + legal cause (rule).

1. To prove factual cause, P must either show:
a. “But for” the D’s act, the injury would not have occurred,
or,
b. The D’s negligent act was a substantial factor in causing
the P’s injury.
2. D’s negligent act must have occurred before the P’s injury.
3. [?] Two approaches to factual cause:
a. Formal/strict:
b. Exceptions to this general rule based on policy grounds.
4. Non-exclusive feature of factual cause:
a. P must only establish that D’s act was a factual cause of
P’s injury (not the sole cause).
b. Therefore, D does not have the defense of saying but for
the negligent act of another, the injury would not have
occurred.
5. P may only establish that the alleged negligent act was a factual cause of
the injury (there may be other factual causes, like the birth of the D, but
these are not legally relevant).
6. Defense: only defense to negligent action (on causal grounds) is to show
that even if the D had acted reasonably, the injury would still have
occurred.
7. Note: In most negligence law suits, there is no significant issue regarding
factual cause, the causal connection is usually clear and unambiguous.
8. [?] Always distinguish b/w the act and consequence.
B. Problems with Proving Factual Cause:

1. Independent concurring factual causes (joint and several liability):
a. Definition: both acts are required for injury to P.
b. Liability: where you have independent concurring acts of
negligence which combined cause a single indivisible
injury, both actors are liable (both acts are required for
the injury).
2. Independent sufficient factual causes:

a. Definition: either act alone would have caused the injury
to the P.
b. Although the “but for” test is the general standard for
establishing factual cause, in some cases it will lead to
illogical results (b/c general defense of saying that even
if I acted reasonably, injury would have occurred is not
available).
c. Liability: when there are independent sufficient causes,
courts will hold both parties liable rather than apply the
mechanistic “but for” rule.
d. See Kingston – two fires).
e. Note: Red flag that in cases like this, establishing factual
cause will be an issue.
3. Independent alternative causes (do not run with Summers holding

– very limited):
a. Definition: only one of the negligent actors could have
actually caused the injury (also called double fault and
alternative liability).
b. Problem: P can only prove 50% probability, cannot prove
“but for” or that more probably than not that one of the
D caused the injury – in response, courts come up with a
very limited remedy.
c. Liability: if P can establish prima facie negligence of both
D, then burden shifts to D to show that they were not
the cause; if neither D can establish that he was not the
cause, then both D are wholly liable to P (see Summers –
three hunters, two hunters negligently shoot at P, P
cannot prove which one hit him).
1) Break down of the rule:
a) Where there are independent alternative causes, courts will find
both D wholly liable when:
1) The P can establish a prima facie case for negligence
against both D (even though factual cause test not met).
2) The best evidence is in possession of the D (therefore, need
to smoke out the evidence).
3) The P is not in a position to find out what happened.
4) Neither D can establish that he was not the cause of the
injury.
d. Rationale: where there are two wrongdoers, one of whom
must be responsible for the injury to the P, it is more fair
that the burden shifts to them (equity, fairness).
e. Note: Red flag that in cases like this, establishing factual
cause will be an issue.
f. RSTMT’s Approach:
1) RSTMT § 876. Persons Acting in Concert: For harm resulting to
a 3rd person from the tortious conduct of another, a person is liable
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if he:
a) Orders or induces such conduct, knowing of the conditions
under which the act is done or intending the consequences
which ensue, or
b) Knows that the other’s conduct constitutes a breach of duty and
gives substantial assistance or encourage to the other so to
conduct himself, or
c) Gives substantial assistance to the other in accomplishing a
tortious result and his own conduct, separately considered,
constitutes a breach of duty to the 3rd person.
Comment on clause (b):
Advice or encourage to act operates as a moral support to the
tortfeasor and if the act encouraged is known to be tortious, it has
the same effect upon the liability of the advisor as participation or
physical assistance. If the encouragement or assistance is a
substantial factor in causing the resulting tort, the one giving it is
himself a tortfeasor and is responsible for the consequences of the
other’s act. This is true both where the act done is an intended
trespass and where it is merely a negligent act.
2) Compare to Hall v. E.I. DuPont De Nemours & Co. (where P was
injured by negligent blasting cap and even though P could not
identify who had manufactured the caps, the complaint was
upheld).
4. Loss of chance: courts have usually rejected the argument that a P can
recover for loss of chance without establishing factual cause (see Hotson
for arguments for and against).
5. Note: whenever a court suspends the traditional formal tort requirements

for negligence, there is usually a principle (equity) or policy reason
(smoking out the evidence) behind it.
a. Be wary – do not run with Summers holding, it is very
limited.
C. Role of expert testimony in establishing factual cause:

1. When a cause connection issue is beyond the common knowledge of the
jury, P must use expert testimony to establish factual cause.
2. Experts must prove that it is more probable than not that the D’s negligent
act cause the P’s injury.
3. Two views on the role of medical testimony in establishing factual cause -
compare Kramer and Daly cases:
a. Kramer: courts usually reject a post hoc ergo propter hoc
theory (after this because of this) b/c possibility that D’s
act caused P’s injury is not enough.
1) See Kramer where P develops skin cancer in cut on head from
where hotel transom fell and cut him, court rejects possibility
analysis – holds that possibilities will not sustain a verdict)
2) However, the ruling in Kramer does not preclude the possibility of a
case where a P can establish a causal connection b/w trauma and
cancer.
b. Daly: where inferences are rationale and natural and
follow from a sequence of proved events, then this may
be sufficient to establish a causal connection without
supporting medical testimony.
1) See Daly where woman falls and gets bruise on breast, cancer
develops and court holds there is sufficient causal relationship.
c. [?] Reasoning in these two cases may be the same, the
courts simply come to different conclusions.
IV.PROXIMATE CAUSE
A. Generally – evolution of proximate cause analysis:

1. Two general rules in the U.S. dependent upon jurisdiction – seem to be two
extremes:
a. Proximate cause = factual cause (but for) + legal
cause [reasonably foreseeable injury]:
1) See Wagonmound #1, where there is an oil spill and P keeps
working, then fire is caused, damage to dock and factory, court
held the D was not liable b/c the risk was not reasonably
foreseeable.
2) Rationale: fairness to D and “direct injury” analysis is too confusing
for a jury.
3) Strict interpretation: some courts thought this rule required
specific foreseeability (precise way in which injury occurred
must be reasonably foreseeability) – see lower court in Hughes
interpretation of Wagonmound #1 rule.
4) Modification: however, the House of Lords rejected this
interpretation and interpreted Wagonmound #1 to mean that the
general type of injury must be reasonably foreseeable - jury
must only conclude that damages were of the general type
of injury that could be reasonably foreseeable (objective test
– do not look at what actual D subjectively believed).
a) See Hughes, where children dropped oil lamp in manhole which
was left unguarded, explosion, child injured, court held the D
liable b/c the accident which occurred was the kind of accident
which should have been reasonably foreseeable by a
reasonably careful person.
b) It is no defense to argue that precise way in which injury
occurred was not foreseeable; Hughes rejects the interpretation
that jury must conclude that precise way in which injury
occurred to P must be reasonable foreseeable.
c) See Daugherty, where D drops cover in vat of chemical liquid
which then explodes and damages P who is standing in room
but beyond splash distance, court holds that this general type
of injury was not foreseeable, reaffirms Hughes although it is
confusing – both apply consistent risk theory.
5) [?] Wagonmound #2:.
b. Proximate cause = factual cause (but for) + legal
cause [direct injury]:
1) See Polemis, where D negligently dropped board which then cause
fire in hull of ship from vapors, etc., court held D knew dropping
board would cause some damage, it did not matter that it caused a
different type of damage than he anticipated; court effectively
foreseeability out of the cause analysis.
2) Direct injury: so long as injury is directly traceable to the negligent
act (and not due to independent causes), the fact that damage
caused was not exact kind of damage expected is immaterial.
3) Criticism: direct injury rule is confusing for courts and juries.
2. Where there is a reasonably foreseeable risk of injury that risk

includes any injury resulting from the same physical forces that
created the risk.
a. See Kinsman, where ship negligently breaks loose,
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knocks other ship over, continue downstream, hit bridge

(where no bridge keeper to open), causes severe
flooding; court, following Plasgraf, holds that given the
nature of the risk involved, flooded landowners were
foreseeable P in the zone of danger at the time of the
alleged negligent act, court also rejects last clear chance
rule.
b. D takes P as he finds him: if certain consequences are
foreseeable, the incurring of other consequences greater
than foreseen does not make conduct less negligent.
c. [?] Zone of danger is extensive when there is an
inherently dangerous activity
d. Limitation: at some point, for policy reasons, courts will
limit liability (by limit who is a foreseeable P and what is
a foreseeable injury) b/c do not want to overtax the D.
1) However, this “too tenuous” point is very hard to set.
3. Last clear chance: one who is knowledgeable of a risk and can

reasonably prevent it is liable for damages resulting from his
failure to do so.
4. RSTMT (Second) of Torts § 435(2): actor’s conduct may be held not to

be a legal cause of harm to another where after the event and looking
back from the harm to the actor’s negligent conduct, it appears to the
court highly extraordinary that it should have brought about the harm.
a. Although this seems to include foreseeability, other parts
of the RSTMT seem to adopt a direct cause approach.
5. Two types of cases: (1) Direct cause cases and (2) Intervening cause
cases.
6. Foreseeability is part of the duty analysis (question of law for judge/court)
and the cause analysis (question of fact for jury) - different purposes and
different tests.
B. Economic Cost/Benefit Analysis:

1. If B < PL, then negligence:
a. Burden of adequate precaution, cost of impose a duty on
this particular person and not on others.
b. Probability of harm, how likely is some kind of injury.
c. L, gravity of resulting injury.
2. General presumptions when using cost/benefit analysis:
a. If gravity (L) is so great, then court will be less
concerned with foreseeability/probability (P).
1) Example: Turnkey RR structure – where there is a history of
trespass by children (slight P) and the cost of prevention is low (low
B) and the gravity of injury is so high (high L), courts will usually
find D liable if apply cost/benefit analysis.
3. This is not a rule; it is just a way to explain negligence.
4. This analysis is usually subsumed in court’s discussion of foreseeability
and reasonableness.
a. Example: in Pitre, where court says cost would be
unreasonable, they are really saying cost of impose a
duty on the D (non-profit organization) would be too
high.
5. Criticism: takes fairness out of negligence analysis.
6. RSTMT’s approach:
a. RSTMT § 291. Unreasonableness: How
Determined; Magnitude of Risk and Utility of
Conduct:
1) Where an act is one which a reasonable man would recognize as
involving a risk of harm to another, the risk is unreasonable and the
act is negligent if the risk is of such magnitude as to outweigh what
the law regards as the utility of the act or of the particular manner
in which it is done.
b. RSTMT § 292. Factors Considered in Determining
Utility of Actor’s Conduct:
1) In determining what the law regards as the utility of the actor’s
conduct for the purpose of determining whether the actor is
negligent, the following factors are important:
a) The social value which the law attaches to the interest which is
to be advanced or protected by the conduct;
b) The extent of the chance that this interest will be advanced or
protected by the particular course of conduct;
c) The extent of the chance that such interest can be adequately
advanced or protected by another and less dangerous course of
conduct.
c. RSTMT § 293. Factors Considered in Determining
Magnitude of Risk:
1) In determining the magnitude of the risk for the purpose of
determining whether the actor is negligent, the following factors
are important:
a) The social value which the law attaches to the interests which
are imperiled;
b) The extent of the chance that the actor’s conduct will cause an
invasion of any interest of the other or of one of a class of which
the other is a member;
c) The extent of harm likely to be caused to the interests
imperiled;
d) The number of persons whose interests are likely to be invaded
if the risk takes effect in harm.
7. Examples of where courts limit liability for policy reasons:
a. See U.S. v. Carroll Towing, where bargee absent from
ship, collision, sinking.
b. See Pitre v. Employers Liability Assurance Co., where P
injured when another boy was winding up to pitch at
charity fair.
C. Defining Foreseeable P – two views:

1. The risk reasonably to be foreseen defines the duty to be owed –
foreseeable P are those in the zone of danger of the type of risk to be
foreseen – Judge Cardozo in Plasgraf.
a. Therefore, unforeseen risks that affect unforeseen P is
impossible.
b. In Plasgraf (shingle falling after firework explosion), only
risk to be foreseen from conductor’s act was either
personal injury or property damage to passenger he was
helping; risk to P was unforeseeable, therefore
unforeseeable P, therefore no negligent claim b/c D did
not have a duty to this P.
c. Classic risk theory stmt.
2. Duty is to the world, not just particular P – Judge Andrews in Plasgraf.
a. Seems to take foreseeability out of duty analysis.
b. Will only apply to direct cause cases.
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D. At what point is foreseeability measured in proximate cause

analysis?
1. Foreseeability of the risk is viewed from the time of alleged negligent act
by the D (strict risk theory) – Cardozo.
2. Foreseeability of risk is viewed from time of impact of the alleged
negligent act by the D – Judge Andrews.
a. Foreseeability is the outer limit of proximate cause;
however, due to reasons of fairness and policy, courts
must hold proximate cause within those outer limits in
some circumstances.
b. Basis his analysis on Polemis.
E. Application to cases – Intervening Cause Cases:

1. Some act (done by human or otherwise) that starts in time after the
negligent act of D that combines with D’s negligent act to cause injury to
P.
a. Viewed from D’s perspective of time.
b. Classification of the intervening act as superseding or
concurring will determine D’s liability:
1) If intervening force/act is foreseeable, reasonable and normal, then:
a) It is a concurring intervening force.
b) D1’s act = proximate cause of P’s injury.
c) Both D1 and D2 are jointly liable.
d) See Glasgow (negligent act was leaving window in state of
disrepair, then two intervening acts (1) boy pushed window and
(2) crowd reacted by stampeding) court held that where type of
intervening force is foreseeable, precise way in which
intervening force occurs is no defense.
2) If intervening force/act is unforeseeable and abnormal, then:
a) It is a superseding intervening force.
b) D1 is not liable.
c) D2 (or intervening force) is viewed as sole proximate cause.
d) The mere fact that an intervening act was unforeseen will not
relieve the defendant guilty of primary negligence from liability
unless the intervening act is something so unexpected or
extraordinary such that it could not or ought not to be
anticipated.
e) [?] from outline - Not enough that intervening force is
foreseeable, it must be that the risk of harm due to intervening
force was increased by D’s conduct.
2. Legal presumptions – process for determining whether an

intervening act is concurring or superseding:
a. Degree of fault in the intervening act (from criminal to
negligence) will determine whether the intervening act
will be characterized as a superseding (usually
unforeseeable) or concurring (usually foreseeable)
intervening cause - rebuttal presumptions:
b. Intervening negligent act is presumed to be
foreseeable - therefore concurring.
1) Where the type of intervening negligent act is at all foreseeable,
even if the specific intervening act is not, D1 will normally be held
liable for P’s injuries.
2) Where intervening negligent act is considered unforeseeable, D1
will usually escape liability:
a) Grossness of negligent act will be a factor in determining
foreseeability of the risk
c. Intervening reckless act - courts are split [?]
POTENTIAL EXAM QUESTION:
1) The more reckless the intervening act is, the more likely it is held to
be unforeseeable and to allow D1 to escape liability.
2) Greater moral culpability of intervening actor is also a factor that
might lead to assigning sole responsibility to D2.
3) Arguments for and Against:
a) Reckless actor is liable: there is intent or at least knowledge of a
risk, therefore some liability should attach solely to reckless
actor, like criminal activity.
b) [?] Reckless actor not liable
4) See heated brick hypo, where company manufactures bricks, send
to fireman who are specifically warned to use cover for brick,
fireman then gives to nurse without the warning (reckless act), P is
then injured.
d. Intervening intentional act is presumed unforeseeable,
therefore superseding.
e. Intervening criminal act is presumed unforeseeable,
therefore superseding.
1) Rationale: seems fair to impose sole liability on criminal actor b/c
he committed a criminal act).
2) See RSTMT 439 (concerned with situations where original tortfeasor
and intervening force are in “substantially simultaneous
operation”):
3) See hypo where A leaves car keys in B’s car, which is stolen by C
who then gets in an accident with D – can D sue B?
4) See Bauer v. New York Central & Hudson River RR Co. (where train
[negligent act #1] and cart crash, thieves come and steal all goods
of cart [criminal act #2], train had guards that protected train but
not cart’s goods), presumption of criminal intervening act as
unforeseeable is overcome by fact that RR knew of theft risk,
therefore intervening act was foreseeable and RR is jointly liable for
injury to P.
a) Many say this is not an intervening cause but more of a direct
cause case b/c the acts happened almost simultaneously.
b) Also see RSTMT 439:
f. Difficulties come in:
1) Identifying when presumption can be overcome, and
2) How to classify fault levels that fall b/w the two extremes of
negligence and criminal.
F. Application to cases – Direct Cause Cases:

1. Uninterrupted chain of events from time of D’s negligent act to P’s injury.
2. Existing conditions do not constitute intervening forces.
3. Example: Plasgraf and Polemis.
G. Application to cases – Miscellaneous Cases:

1. Social host:
a. Generally, social hosts are not liable for injury caused by
negligent acts of guests at their social functions:
b. Minority view: some courts (NJ and CA high courts) have
held social hosts liable:
1) Theory: negligent act of serving liquor is negligent precisely b/c it
creates an increased risk of negligent intervening conduct (DUI) –
that is why it overcomes presumption that criminal conduct is
unforeseeable.
2) In both states, legislature reversed courts’ interpretations of C/L
and enacted social host immunity statutes.
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3) [?] What is the negligent act: to serve alcohol or to serve alcohol to

a visibly impaired person?
c. Policy reasons for non-liability of social hosts:
1) Social tradition – do not want to extend negligence into the private
home.
2) Drinkers should be responsible for their actions – sole liable for DUI.
3) Evidentiary problems.
d. Dram Shop Acts: generally, states have statutes holding
liquor license shop owners strictly liable for sell to minor
or a visibly inebriated person.
2. Rescuers:
a. Generally, D1 is liable to rescuers: original tortfeasor is
liable for injuries suffered by those going to the rescue of
those imperiled or injured by the act of the original
tortfeasor:
1) [?] Rescue attempts must be reasonable.
b. Rational (accord. to Cardozo):
1) Danger invites rescue; attempt to rescue is a “normal response” to
an emergency, therefore foreseeable.
2) It is a normal human response to attempt rescue.
c. Professional rescuer (fireman, policeman), recovery is
generally denied due to AR and “fireman’s rule”.
d. Turk thinks some of these cases are wrong as a matter of
strict risk theory b/c these acts are not foreseeable –
calls them “loose risk theorists”.
3. Suicide:
a. Generally, suicide considered unforeseeable, therefore
superseding, D will be relived of liability.
b. In some cases, courts will assess whether choice to
commit suicide was free and deliberate or the effect of
the negligent act (use psychiatric testimony).
4. Acts of God:
a. If acts of God are reasonably foreseeable, D1 still liable.
b. Standard: reasonable person is expected to take into
account foreseeable intervening natural forces in the
local area (even extremes if extremes occur with
regularity).
c. Rationale: b/c what makes act negligent is an increased
risk of property damage from potential natural forces
known in the area.
5. Aggravation of injuries:
a. Generally, one who negligently injures another is also
responsible for any aggravation of injuries suffered by P
during course of medical treatment, even if injuries are
aggravated owing to the negligence of the attending
physicians.
b. Rationale: aggravation is a foreseeable consequence of
original tortfeasors negligence.
6. Leave keys in ignition of car: usually D who left key in ignition is found
not liable but the courts are split – depends on interpretation of policy
behind the duty.
H. Turk’s commentary:
1. Core versus secondary risks: there is a big debate among the courts as to
what kind of risks are created by the D’s negligent act.
2. The use of different legal theories, even though facts remain the same,
may effect outcome of case:
a. Example, in Plasgraf if P had sued on theory that RR was
negligent in not securing the scale on the roof (rather
than sue for negligence conduct of agent of the RR), she
may have received a different outcome.
3. Generally, evidence of D’s post-accident conduct to take reasonable care
is not admissible b/c would deter D from taking reasonable steps to
prevent further injuries.
4. When courts engage in negligence analysis, they look at foreseeability,
risk theory and policy considerations.
a. Foreseeability:
1) Red flag for foreseeability concerns: when there is a significant time
or distance gap b/w the D’s original negligent act and the P’s injury,
watch for foreseeability issues in the duty and causal analysis.
2) Whether courts find certain risks foreseeable may depend
on how the court interprets the policy/purpose behind the
duty:
a) Example: is purpose of duty against not leaving keys in ignition
to reduce theft (narrow interpretation) or to protect public
safety and reduce accidents on highways by unauthorized
drivers (broad interpretation)?
b. Risk theory:
1) Strict risk theorists’ approach to negligence analysis: did the
original D’s conduct increase the risk of . . . ?
c. Policy considerations:
1) If we extend liability too far, we will severely harm or limit valuable
(socially beneficial) activities - do not want to overtax activities that
have social value.
2) As an attorney, ask court to sue a Learned Hand Formula
(cost/benefit analysis) to take question away from the jury.
3) In many cases, it is the role of the legislature to make assessment
that the burden is not too highs:
a) For example, legislature has immunized non-profit, charitable
organizations from liability in many cases (see Pitre).
I. Exam advice and questions:

1. [?] What do Polemis (foreseeable P) and Plasgraf (unforeseeable P) have
to do with each other?
2. Process for negligence question on exam:
a. Determine whether we have direct
cause or intervening cause case and
state why.
b. What type of intervening cause and
why.
V.ESTABLISHING A STANDARD OF CARE BY THE LEGISLATURE – VIOLATING

A STATUTE
A. Generally:
1. General rule (majority view): an unexcused violation of a criminal
statute is negligence per se.
a. More generally, when a statute imposes a legal duty,
violation of the statute constitutes conclusive evidence of
negligence, i.e., negligence per se.
b. Alternative view: violation of a statute is only evidence of
negligence, not negligence per se.
2. Example - Martin v. Herzog: The vehicle being on the wrong side of the
OUTLINE
road in violation of a statute was "negligence per se". Note: D was still
not liable here because a causal connection was not satisfactorily
established.
3. Note that this doctrine just defines the standard of care. The
remaining elements still must be proven.
4. Also note that automobile violations are considered criminal for this
rule.
5. Negligence per se traditionally means negligence as a matter of law,
but sometimes courts have interpreted this to mean prima facie
negligence.
6. Questions to ask:
a. what is the purpose of the statute?
b. is there a causal connection between the violation and the
resulting injury?
c. is the P in the class of persons the statute was designed to
protect?
d. is this type of injury what the statute is designed to prevent?
B. Effect of Statute:
1. Majority View: unexcused omission to perform a statutory duty is
negligence per se.
2. Alternative view: violation of a statute creates a presumption of
negligence, which may be rebutted by a showing of an adequate
justification for the violation.
a. Excuses: Where the actor’s incapacity makes the violation
reasonable; where he is justifiably unaware of the need for
compliance; where he is unable due to the circumstances to
comply with the statute; where an emergency not caused by
his own conduct makes it impossible to comply; and where
compliance would create a great risk to the actor or to
others.
C. Class Hazard Rule:

1. P may bring a negligence action upon violation of a statute if:
a. P was in the class of people meant to be protected by the
statute, and
b. Statute was meant to protect the particular interest invaded
(if the injury suffered by P is within type of harm the
legislature sought to eliminate by enactment of the statute).
D. Emerging Rule:
1. Where there is a violation of a criminal statute, there is a presumption
of negligence; that presumption can be overcome by evidence that the
D acted reasonably under the circumstances (see Barnum v. Williams).
2. Whereas under traditional rule, no question would be sent to the jury,
under this rule inquiry will go to jury as to whether D acted reasonably
under the circumstances.
3. Expands limited category of “excused” violations beyond emergencies.
4. HYPO: Plaintiffs walking on the wrong side of the street, but it is safer
there. Here, under Negligence per se, they would be guilty of
contributory negligence under the per se doctrine and would not be
able to recover. However, under this rule, the jury could find that the
other evidence outweighed the violation of the statute.
E. Licensing Statute:
1. For the purposes of this rule, a licensing statute is designed to
generate revenue and not to protect the public. Therefore violation of
this statute will not be negligence per se.
2. However, if Dr. was not licensed, the standard would still be that of a
Doctor.
3. Other courts look at the lack of a causal connection between the
licensing and the harm. There is no necessary correlation between the
lack of a license and the accident.
4. Hypo: Ten year old driving - kid jumps in front of his car and he hits the
kid. The driver has not been negligent. Illustrates that there is not
necessarily a correlation between the violation of licensing statute and
negligence.
F. Driving Statutes: - most are designed to protect the other drivers and the
pedestrians.
VI.ROLE OF CUSTOM AND EXPERT TESTIMONY
A. Generally:
1. Rule: custom is prima facie evidence of reasonable conduct but can be
overcome if other party can show that custom is unreasonable.
a. Minority Rule: standard of care shall be defined as the
custom; therefore, if the defendant violated custom, they
have breach their duty as a matter of law.
b. Not Conclusive: custom is not the exclusive standard, and
the jury may find that the defendant met the standard of
care even though they did not meet the custom.
c. Custom That Is Negligent: it is possible for a jury to
determine that even though the defendant met the custom,
the custom is negligent.
2. To show custom is unreasonable, P must:
a. show there is a safer alternative . . . .
b. that can be practically and acquired and available . . .
c. at a reasonable cost.
3. Compare to criminal statutes: unlike violations of criminal statutes,
custom is not a presumption.
4. Compare to role of custom in malpractice actions.
5. Use Expert Testimony to establish the custom.
B. Malpractice:
1. Three theories on which patient can sue doctors in malpractice:
a. Battery theory.
b. Negligence in the performance of the operation.
c. Negligence in not obtaining informed consent:
2. Battery Theory:
a. Generally
1) “I did not consent to treatment on this part of my body”.
2) These actions are limited to cases where patient has not consented to
the procedure actually performed or has not consented to an extension
of that procedure.
b. Basis of claim = unconsented to touching by the doctor
deprived P of right to determine who could touch her and
how (self-determination).
1) [?] However, if the procedure is performed properly there will be only
nominal damages.
c. P must show elements of a battery: intention harmful or
OUTLINE
offensive contact, and that the consent was exceeded.

d. Express consent required:
1) In this area, there are very strict rules of consent; rarely will have
implied consent.
2) Exception: emergency that is life threatening and the patient is unable
to consent (see Mulloy where doctor amputates hand and is held liable
b/c not life threatening).
3) PA court in Gray v. Grunnagle rejects consent form
e. Paradigm is Moore v. Williams.
f. Defense: there is no defense in a battery malpractice
action to point out that P was not injured or that procedure
resulted in a beneficial outcome.
1) Damage/injury not required b/c the injury is to P’s dignity.
2) Physical harm need not be demonstrated because is can be offensive,
but without physical harm above and beyond what was consented to,
the damages will be minimal.
3. Negligence in the Performance of the Operation:

a. Generally:
1) “I consented to the procedure but the physician performed it
negligently by failing to exercise reasonable care”.
2) This is straightforward malpractice case.
b. P must prove elements of negligence:
1) *Duty (special).
a) Standard of Care: physician held to customary standard of care
(custom = reasonable care)
1) Custom is the exclusive standard of care in a malpractice
action; physicians must act with the level of skill and learning
commonly possessed by members of the profession in good
standing.
2) Trend is away from strict locality rule to national standard
(reason for this is conspiracy of silence - hard to get expert
witness to testify against other doctors in small towns).
b) Custom/expert testimony requirement:
1) What is customary standard of care in medical profession is
beyond the knowledge of the lay person, therefore, P must use
expert testimony to establish what is customary and to show
that custom was not followed by the doctor in this case.
2) Expert must testify as to the custom and not what they would
have done; tough burden for the plaintiff to meet.
3) Where P introduced expert who only offered evidence as to a

“reasonable” standard of care, court held P did not meet burden
for negligently performed procedure action.
a) Compare to negligently informed
consent cases where there is a
duty to inform patient of material
risks of procedure regardless of
custom.
b) This action does not require any
expert testimony to show that
doctor had a duty to inform patient
of material risks – lay person can
assess this.
c) Custom does not determine what
constitutes reasonable care in
disclosing to patients material risks
– this is a general duty question.
2) Breach.
3) Cause.
4) Damages – must be some physical injury.
4. Negligence in Not Obtaining Informed Consent:

a. Generally:
1) “I consented to the procedure but I was not informed that there were
material risks of physical injury associated with the procedure even if it
was properly performed”.
2) Material risk: when a reasonable person in the patient’s position
probably would attach significance to the specific risk in deciding on
treatment, the risk is material and must be disclosed (see Miller v.
Kennedy).
3) [?] Does PA reject this theory?
b. P must establish negligence elements:
1) Duty = physician has a duty to inform patient of the material risks
associated with the procedure.
2) Breach = failure to inform.
3) *Cause:
a) Factual cause: but for the failure to inform, the injury would not
have occurred b/c the patient would not have chosen to have
surgery.
1) Patient must show that if doctor had informed him of the
material risks that he would not have had the surgery
(subjective) and that a reasonable person would not have
chosen the surgery (objective test) – courts seem to go both
ways on the objective/subjective standards.
b) Proximate cause:
4) *Damages: the risks about which the patient was not informed must
materialize.
a) VERY IMPORTANT element of action that everyone forgets!!!
b) Example: in HIV+ obstetrician case, P must show that they were
HIV+ to establish damages.
c. Role of experts in negligent informed consent cases:
1) Testify as to the risks associated with the procedure.
2) Material risks: means material to the patient’s decision to have
surgery.
3) This is a jury questions, there is no need for expert testimony.
4) Compare to role of expert testimony in negligently performed
procedure cases.
d. [Accord. to Miller v. Kennedy], duty to inform of material
risks exists as a matter of law when:
1) The risk of injury inherent in the treatment is material; and
2) There are feasible alternative courses of treatment available; and
3) The P can be advised of the risks and alternatives without detriment to
his wellbeing.
5. Expert/Specialist Rule: if the defendant is an expert or

acknowledges that he knows more than the ordinary physician, he is
expected to act as a reasonable physician with that knowledge; he is
held to a higher standard.
6. Minority Rule: follows the general rule in negligence actions - that
custom is evidence of the standard of care.
1) Example: Helling v Carey: held that as a matter of law, the Doctor
was liable for not giving a glaucoma test based upon a cost benefit
analysis (reasonable prudence may sometimes require a higher
standard of care than that followed by the profession).
OUTLINE
a) This case basically stands alone.

b) Not Followed.
2) PA follows the minority rule. Therefore, in these cases expert
testimony is not required to establish the custom.
a) See Incollingo v. Ewing.
VII.RES IPSA LOQUITOR
A. Generally:
1. Rule: when it is highly probable that an injury is due to the negligence
of the D, and the D has better access to the evidence concerning the
injury, the doctrine of res ipsa loquitur creates an inference that the D
was negligent, and puts the burden on D to introduce contrary
evidence.
2. Res Ipsa Loquitor (the thing or act speaks for itself).
3. Common sense doctrine: is there a common sense inference of
negligence; do not get too formalistic with RIL
4. When determining whether to apply RIL, ask:
a. Does RIL apply? Are all of the requirements met?
b. What is effect of applying RIL on the negligence action?
“Presumption” or “inference”?
B. Requirements for RIL:

1. Injury would not have occurred unless someone was negligent:
a. P must demonstrate that the harm which befell him does not
normally occur except through the negligence of someone.
b. This does not mean that the P must show that such events
never occur except through someone’s negligence, only that
negligence is the cause of such events most of the time
1) RIL relieves P from producing direct evidence of negligence but P must
still show that person charged with negligence was at fault.
c. This requisite need not be conclusive, only a belief that it
would be more likely than not.
d. Usually this can be determined through the general
experience of the jury. However, the P may also want to
provide expert testimony (e.g., for medical malpractice).
e. Negating other causes: P is not required to show that
there were no other possible causes of the accident; he
must merely prove that there is a more than 50% probability
that there was negligence.
f. Example: Airplane crashes.
g. Example: P is a waitress who is injured when a soda bottle
breaks in her had. P unable to show any acts of negligence
so the res ipsa loquitur is relied on. Held: D is liable.
Usually sound and prepared bottles of soda do not explode
when handled correctly. No evidence of negligence on P’s
part (see Escola v. Coca Cola Co).
2. Instrumentality that caused the injury was in exclusive control of the D:

a. Must be caused by an agency or instrumentality within the
exclusive control of the D.
b. P must show by a preponderance of the evidence that the
negligence was probably that of the D.
c. Traditional View: Old cases expressed this view by stating
that the P must demonstrate that the instrumentality which
caused the harm was at all times within the exclusive
control of the D (e.g., chairs of hotel may be in control of the
guests, not of the hotel).
d. Modern View: most courts do not require “exclusive
control” by the D, only that the P show that, more likely than
not, the negligence was the D’s.
1) Common sense: does it make sense to infer responsibility or control
given the facts?
e. [?] Particular Evidence: P is required to produce evidence
negating other possibilities.
f. [?] Generally, RIL is Not Available Against Retailers:
1) B/c retailer does not have sufficient control over the product to fairly
hold the D/retailer liable.
2) However, P can use RIL against manufacturer.
g. Multiple Ds: if P can show the probability that his injury
was caused by the negligence of at least one of the Ds, he
need not show which one.
1) Therefore, the Ds bear the burden of rebutting the inference of
negligence by showing what really happened.
2) Factors:
a) If it is unreasonable to require the P to identify the negligent D
(e.g., if he was unconscious during operation).
b) If the Ds had integrated, interrelated responsibilities as professional
colleagues; each with a duty to see that no harm befalls P.
3) Special Relationship: it is more likely that res ipsa loquitor will be used
if there is a special relationship between all the D’s and the P – still
very rare application.
a) Example: P goes in for an appendectomy. When he comes out, his
shoulder hurts. P sues doctors, nurses, anesthesiologists, hospital
owner, etc. P shows that the injury to the shoulder could not have
happened unless someone was negligent, but P offers no evidence
showing which one was. Held: P can use res ipsa. Since P was
unconscious, all of the D’s are in a better position to know what
happened. Furthermore, all D’s have a duty to watch out for the
care of P. P was hurt, it can be said that they all breached their
duty (see Yabarra v Spangard).
3. P did not contribute to the injury:

a. P must also show that his injury was probably not due to his
own conduct.
b. Contributory negligence: Contributory negligence on the
part of the P will constitute a failure to meet this
requirement, unless:
1) The P’s negligence does not lessen the probability that the D was also
negligent.
2) The jurisdiction uses comparative negligence, not contributory
negligence.
4. Accessibility of Information:
a. Some courts have purported to hold that in addition to
establishing these three things, the P must also show that a
true explanation of the events is more readily accessible to
the D than to himself (Helping to “smoke-out” the
evidence).
b. However, few courts have really relied on this requirement.
c. Note: key is to show that event does not ordinarily occur in
the absence of negligence.
OUTLINE
C. Effect of RIL:
1. Generally: there is a debate among the courts as to whether RIL
creates a presumption (directed verdict for P) or an inference (question
still goes to jury) of negligence.
2. Presumption (minority approach):
a. Once P meets 3 requirements of RIL, burden of evidence
shifts to the D to show what caused the injury to the P.
1) In these jurisdictions, D must prove more than what he would have to
prove in a negligence action without RIL; merely showing that he acted
like an ORPP is not sufficient – D must show what caused the injury to
alleviate himself from fault.
b. Where P meets all three elements and where D cannot
establish what caused the injury (therefore, D cannot
overcome presumption), then a directed verdict for the P is
appropriate.
c. In these jurisdictions, for a D to get a directed verdict, D
must introduce evidence that no reasonable person would
conclude that D acted negligently.
3. Inference (this is the emerging and better rule according to Turk):
a. Most courts hold that the effect of RIL is no different from
other types of circumstantial evidence.
b. Whether P establishes negligence by RIL or by prima facie
elements of negligence, the case will still go to the jury.
c. Under this approach:
1) Burden of evidence does not shift to the D.
2) If D does not come forward with evidence showing what actually
caused the injury, there is no directed verdict for P – case will still go to
jury.
D. RIL Generally Not Applicable in Medical Malpractice Cases:

1. Reason why RIL generally not applicable in malpractice actions: P
cannot establish element #1 (someone must have been negligent) b/c
P needs to use medical expert testimony (custom/expert testimony
requirement) to establish negligence.
2. Exception (very limited):
a. Obvious negligence exception to the general
requirement of producing custom expert testimony:
1) Negligence is so obvious that there is no need for expert testimony to
explain the negligence to the jury.
2) Examples – really only applies in these situations:
a) Something left in the patient’s body.
b) Injury to a part of a patient’s person that was healthy before the
procedure and that was outside the area of operation.
b. See Ybarra v. Spangard, where court suspended the
exclusive control requirement b/c of fairness to the P and
wanted to smoke out the evidence.
1) DO NOT RUN with this holding – very limited.
3. [?] Where an unexplained injury occurs during a medical procedure to
part of the body not under treatment, res ipsa loquitur applies against
all of the doctors and medical employees who take part in caring for
the patient.
VIII.SPECIAL DUTY ISSUES

A. Generally:
1. There are certain areas of the law where courts will go beyond and will
modify the general duty rules (ORPP).
2. Policy-focused: rather than focusing on foreseeability in determining
duty, courts will examine whether D owes P a duty based on policy
reasons.
a. Courts will assess whether the policy is important enough to
impose an affirmative duty on the P.
3. Types of special duties:
a. Malpractice
b. Failure to act.
c. Negligent infliction of emotional distress.
d. Owners and occupiers of land.
e. Products liability.
B. Failure to Act:
1. No C/L duty on anyone to take affirmative steps to act.
a. Idea that there is no duty to act is based on distinction b/w
nonfeasance (failure to act) and misfeasance (acting
improperly).
b. Regardless of whether there is a moral obligation to act,
there is no general duty to take affirmative steps to rescue.
1) C/L gradually comes to recognize a duty to act to help others in certain
circumstances
c. Exceptions:
1) An affirmative duty to act may be found in:
a) Contract.
b) Special relationship.
c) Legislation.
d) Come to aid and then renders aid negligently.
e) Act that places person in peril.
1) Once you act, you have a duty – therefore, this “exception”
does not have the problems of other exceptions where the
theory is based on a failure to act.
d. Overcoming the Presumption: for P to overcome the
presumption of the C/L rule, P must show that D had an
affirmative duty to act – draw analogies to the C/L
exceptions.
2. RSTMT (Second) of Torts § 314A. Special Relations Giving Rise to Duty

to Aid or Protect.
a. RSTMT text:
1) A common carrier is under a duty to its passengers to take
reasonable action:
a) to protect them against unreasonable risk of physical harm, and
b) to give them first aid after it knows or has reason to know that they
are ill or injured, and to care for them until they can be cared for by
others.
2) An innkeeper is under a similar duty to his guests.
3) A possessor of land who holds it open to the public is under a similar
duty to members of the public who enter in response to his invitation.
4) One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other
of his normal opportunities for protection is under a similar duty to the
other.
b. Caveat: the Institute expresses no opinion as to whether
there may not be other relations which impose a similar
OUTLINE
duty.
c. Comments:
1) Comment b. - see p.465.
2) Comment d. (scope) – see p.465.
3) Comment f. (knowledge): D not required to take any action until he
knows or has reason to know that P is endangered, ill or injured; D not
required to take any action beyond that which is reasonable under the
circumstances - see p.465.
d. Notes:
1) This is not an exhaustive list – have to argue analogy.
2) Duty is present regardless of whether P was made worse off.
3. RSTMT (Second) of Torts § 314B. Duty to Protect Endangered or Hurt

Employee.
4. RSTMT (Second) of Torts § 324A.

1) RSTMT text: one who, being under no duty to do so, takes charge of
another who is helpless adequately to aid or protect himself, is subject to
liability to the other for any bodily harm cause to him by:
a) failure of the action to exercise reasonable care to secure the safety of
the other while within the actor’s charge, or
b) the actor’s discontinuing his aid or protection, if by doing so, he leaves
the other in a worse position then when the actor took charge of him.
2) Good Samaritan statutes immunize voluntary health professionals from
aiding.
3) Duty cannot be fulfilled by placing victim in position of peril equal to that
from which he is rescued (comment g.).
a) Example: the court in Parvi v. City of Kingston, found the officers liable
to P where police placed drunk is park near highway.
4) [?] Act by D can be negligent or innocent, still a duty to act.
5. Therapist-Patient special relationship:

a. Rule: Once a therapist knows or should know that his
patient presents a real danger to an identifiable third party,
there is a duty to warn or otherwise take reasonable actions
to prevent the danger.
1) Thompson holding: public entities and employees have no affirmative
duty to warn of the release of an inmate with a violent history who has
made non-specific threats of harm directed at non-specific victims.
a) Tarasoft (pre-Thompson) holding: therapist have a duty to warn the
endangered party; Thompson limits Tarasoft to specific threat,
specific victim cases.
b) Johnson (pre-Thompson) holding: where there is a special
relationship b/w P (victim) and D (government), government has a
duty to warn of latent, dangerous qualities suggested by the
parolee’s history or character.
b. Policy arguments: courts have to choose b/w 2 good
policies.
1) For duty to warn: protects public safety.
2) Against duty to warn (criticism): patient confidentiality and privacy are
crucial to the relationship – this will end up hurting public safety in the
long run.
c. Legal doctrine has little role here; all arguments are policy-
based – courts trying to figure out the impact of imposing a
duty to warn.
6. Damages for failure to act cases:

a. Since theory is that D failed to take steps to aid (not that D
created the situation), then D only liable for aggravated
injuries resulting from the failure to aid or act; D not liable
for initial injuries caused.
C. Negligent Infliction of Emotional Distress (NIED):

1. Generally:
a. [?] Foreseeability does not have much of a role in this are of
law.
b. Policy concerns are driving this area of tort law.
c. Case law in this area of torts arose primarily from car
accidents and bystander P cases.
d. Issue: has tort law expanded too far, leading to higher
insurance costs.
e. [?] No NIED in TX.
2. Requirements:
a. If P sues under NIED theory, P must show that:
1) D’s negligent conduct caused fright in P and fright caused physical
injury.
2) D’s negligent conduct caused fright (no physical injury).
b. It is NOT an NIED case if P sues b/c D’s negligent caused
physical injury which in turn caused emotional injury or
fright.
3. Direct victim cases:

a. General negligence principles: bystander rules do not
apply; instead, use general negligence principles – how
foreseeable was the emotional distress of the P to the D?
b. See Molien where court held that physician had a duty to his
patient’s spouse when he misdiagnosed a venereal disease.
c. No policy considerations: in these case, the policy
considerations that drive courts to limit bystander NIED
cases are NOT present.
d. Uncommon activities: direct NIED cases tend to have
strange, uncommon facts, therefore no concern about
overtaxing these activities to extinction.
4. Policy Concerns – Liability Limiting Principles:

a. Policy concerns:
1) Floodgate of litigation:
a) Scared of a lot of law suits.
b) Argument based upon the presumption that there are so many
wrongs out in society, that it would burden the courts too much to
allow recovery.
c) Very weak argument b/c it is not at all convincing to say that there
are valid NIED claims out there but we do not want courts to be
overburdened - this is the courts’ job - to deal with injustice.
2) Fraudulent claims.
a) Allowing recovery opens the courts up to a lot of fraudulent claims.
b) Based upon a presumption that there is something about these
cases which make them more susceptible to fraudulent claims than
other claims.
c) It is based upon something special about these cases that the
normal means of preventing these claims are ineffective (including
adversarial system, jury determination of credibility).
d) Not a real concern b/c we ask juries to make more complicated
causal assessments (b/w negligent action and emotional distress)
OUTLINE
in everyday negligence auto accident cases when we ask them to

determine pain and suffering damages.
3) Unlimited liability:
a) This is the real policy force behind the limitation of these actions.
b) Have to be concerned about the turning one tort into many.
c) Have to be concerned about the overtaxing a beneficial activity.
d) Example: could open the door for liability to all friends and family
who are in ER waiting room at hospital – courts want to adopt a rule
for NIED that prevents extension of the tort to this scenario.
b. Evolution of liability limiting principles for bystander cases:
1) Impact rule:
a) If D’s negligent conducted resulted in any impact with the P’s
person, no matter how slight, courts would allow impact to support
liability for P’s emotional distress resulting from the impact.
b) Criticism: did not truly limit liability.
2) Zone of danger rule/physical injury requirement:
a) If D’s negligent conduct threatens P with serious bodily harm but P
does not result in bodily harm to P (no impact), courts will allow P
to recover for physical injury caused by fear, emotional distress
caused by P’s presence in the zone of danger.
b) Criticism: illogical and unjust.
1) Nurse hypo: P could not recover for NIED where nurse carrying
baby to P negligently dropped baby on floor and P suffered
heart attack (b/c nurses conduct did not create a foreseeable
risk of P being injured).
3) [?] Reasonably foreseeable serious emotional distress rule:
a) P can recover for NIED if emotional injury was reasonably
foreseeable to D and serious.
1) To determine whether emotional distress was reasonably
foreseeable and serious, look at three factors:
a) Relationship b/w P and victim, and
b) P's closeness to the accident, and
c) Contemporaneousness of the
physic jolt to the accident
(closeness in time and space).
2) Leave to courts to determine (after assessing the 3 factors) and
in light of policy concerns whether NIED cause of action should
be allowed.
3) Sample rule: there must be a family relationship b/w P and
victim and P must witness or soon come on the scene (see
Dziokonski).
b) “Reasonably foreseeable” requirement is device for
implementing policy concerns.
c) [?] Most courts now adopt this rule.
1) Note: the trend in the courts is to go with a more mechanistic
approach rather than the flexible approach of Sinn.
d) [?] What happens to physical injury requirement: there is still
much debate over whether or not to keep the physical injury
requirement.
1) Against physical injury requirement: we do not require physical
injury in IIED cases, therefore, we should not require it in NIED
cases.
2) For physical injury requirement (see Molien dissent): but IIED is
limited to outrageous and extreme conduct, we do not have
that limit in NIED, therefore courts should be more concerned
about limiting NIED by use physical injury requirement;
insurance concerns.
a) Emotional disturbances are
commonplace in our society.
b) Cannot be objectively observed or
measured.
c) Legislature’s job to create new
causes of action and to fix the
limits of recovery.
d) Liability of D is disproportionate to
his culpability (merely negligent).
3) Armchair behaviorism: when judges argue for rules based on
behavioral assumptions, should these judges have to back up
the assumptions with scientific data.
4) Contemporaneous physic jolt rule:
a) P must have a contemporaneously sensory “observation” of the
accident.
b) Screeching brakes or a scream may be sufficient.
c) Ask ourselves, is this another step in the evolution or is this the
actual “rule”.
5. "Eggshell Plaintiff" Rule Inapplicable: unless D has actual knowledge of

some special sensitivity of P, D will be liable only to the extent that P's
physical response to the emotional trauma was within the normal
range of ordinarily sensitive persons.
D. Owners and Occupiers of Land:

1. Generally:
a. Persons liable: certain special duty rules apply to claims
against possessors of land for injuries resulting from either a
condition of the premises or an activity being conducted on
the premises.
b. DDD
2. Old C/L:
a. Property owner generally had immunity from all liability
(based in feudal England).
b. Duty of owner/occupier turns on the status of the P
(rather than general negligence principles):
1) Trespasser:
a) A trespasser (T) is one who enters or remains upon D's land without
a privilege to do so.
b) Rules:
1) D is under no duty to exercise reasonable care to make the
premises reasonably safe for T (or to warn T of hidden dangers).
2) D is under no duty to exercise reasonable care to carry on
activities on the premises so as not to endanger T.
3) Exception - Intentional and Reckless Misconduct: D's immunity
from liability to T does not extend to intentional torts.
a) And many jurisdictions hold that D
is liable to T for harm caused by D's
reckless ("willful and wanton")
misconduct.
b) Others (and the Restatement) do
not recognize this latter rule, but
achieve somewhat the same result
by the following two exceptions.
4) Exception - Frequent Trespassers on Limited Area:
a) When D knows or should know that
trespassers constantly intrude
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upon a limited area of his premises,

D owes a duty of reasonable care
to such a T (1) in the conduct of
active operations on the premises,
and (2) to warn T of a dangerous
artificial condition on the land
(created or maintained by D) which
D has reason to believe T will not
discover, provided the risk to T is
one of serious bodily harm.
5) Exception - Discovered Trespassers:
a) Once D discovers the presence of a
T on his land, D must exercise
reasonable care to (1) conduct his
activities with regard to T's safety,
(2) warn T of an artificial condition
which poses a risk of serious bodily
harm, if D knows or has reason to
know that T is in dangerous
proximity to it and that T will
probably not discover the danger
or realize the risk, and (3) control
those forces within his control
which threaten T's safety, or give T
an adequate warning of them.
c) Rules for Trespassing Children – “Attractive Nuisance Doctrine”:
1) Most jurisdictions have special rules applicable to child
trespassers, sometimes called the "turntable" or "attractive
nuisance" doctrine.
2) A possessor of land is subject to liability for physical harm to
trespassing children caused by an artificial condition upon the
land if the following requirements are met, and D fails to
exercise reasonable care to eliminate the danger to such
children or otherwise to protect them:
a) Knowledge of Child Trespassers: D
must know or have reason to know
that the place where the condition
exists is one where children are
likely to trespass.
b) Attraction of Condition: child need
not be attracted onto the premises
by the condition that injures him. It
is enough that children who do
foreseeably trespass can be
expected to encounter the
condition.
c) Knowledge of Condition: D must
know or have reason to know of the
condition, and D must realize or
should realize that it involves an
unreasonable risk of death or
serious bodily harm to such
children. D need not have created
the condition, but merely maintain
it or permit it to exist.
d) Type of Condition: doctrine applies
only to artificial conditions (not
activities or natural conditions)
upon the land. In addition, some
courts have created categories of
"common hazards" as to which D is
not liable, such as fire, falling from
a height, drowning in water, visible
machinery in motion, piles of
lumber, etc. However, the better
view is that whether the risk is
unreasonable depends on the facts
and circumstances of each case.
e) Risk of Harm: condition must
create a risk of serious bodily harm
or death; but if it does, D is subject
to liability for any lesser injury.
f) Child's Awareness of Risk: child,
because of his youth, did not (a)
discover the condition or (b) realize
the risk.
g) Reasonableness of D's Conduct:
utility to D of maintaining the
condition and the burden of
eliminating the danger were
outweighed by the risk to the
children.
3) Also see RSTMT (Second) of Torts § 339 – Artificial
Conditions Highly Dangerous to Trespassing Children.
a) Majority approach.
b) Incorporate attractive nuisance
doctrine BUT got rid of requirement
that condition had to lure children
on to the property.
2) Licensee:
a) Persons who enter or remain on land with the consent of the owner,
but who are not invitees.
b) Rules: D's duty to a licensee is similar (but not identical) to that
owed a discovered trespasser.
1) Intentional and Reckless Conduct: D is subject to liability to a
licensee for intentional and reckless ("willful and wanton")
conduct.
2) Active Operations (Latent Dangers): in conducting his activities
on the premises, D must exercise reasonable care for the safety
of licensees, provided:
a) he should expect that they will not
discover or realize the danger and
b) they do not know or have reason to
know of D's activities and the risk
involved.
3) Latent conditions: as to dangerous conditions, D is subject to
liability to a licensee if:
a) D knows or has reason to know of
the condition and the risk it
creates,
b) the licensee does not,
c) D should expect that the licensee
will not discover or realize the
danger, and
d) D fails to exercise reasonable care
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to make the condition safe, or to

warn the licensee of the condition
and the risk involved.
3) Invitee:
a) Types of invitees:
1) Public invitees: a person who is invited to enter or remain on
land as a member of the public for a purpose for which the land
is held open to the public
2) Business Visitors: a person who is invited to enter or remain on
D's land for a purpose directly or indirectly connected with
business dealings with the possessor of the land. This includes
potential or future business.
3) Incidental Visitors: persons whose visit is for the convenience,
or arises out of the necessities of, others who are on the land
for a business purpose.
4) Social Guests: traditionally, a social guest in D's home is a
licensee, despite incidental services performed by the guest or
an incidental business motive behind the invitation (however,
some courts and legislation now classify social guests as
invitees).
b) Rule (like general negligence standards):
1) Owner has a duty to exercise reasonable care (duty to maintain
safe property and premises).
2) Owner has a duty to warn of latent dangerous conditions.
3) Open and Obvious Dangers: until recently, it was commonly
held that even as to invitees, D was not liable for "open and
obvious" dangers. The emerging and better view is that the
obviousness of the danger is merely one fact bearing on
whether D was negligent or on P's contributory fault or
assumption of risk.
c. Led to all sorts of rules, sub-rules and distinctions.
d. Seeds of change:
1) Attractive nuisance doctrine: exception for children trespassers.
2) Expand the notion of invitee to include business and public invitees.
a) RSTMT (second) of Torts § 332:
1) An invitee is either a public invitee or a business visitor.
2) A public invitees is a person who is invited to enter or remain on
land as a member of the public for a purpose for which the land
is held open to the public.
3) A business visitors is a person who is invited to enter or remain
on D's land for a purpose directly or indirectly connected with
business dealings with the possessor of the land (includes
potential or future business).
3. Emerging rules:
a. Small number of courts are abolishing arbitrary classification
of entrants upon land and substitute a general duty of
ordinary care under the circumstances.
1) Status of P will be a factor in:
a) Determining whether duty was owed to P (was P foreseeable), and
b) Whether duty was breached.
2) Some states have done so by statute, some by judicial decision (see
Rowland v. Christian)
b. A number of courts are expanding the invitee status:
1) Some jurisdictions retain the traditional categories, but expand the
scope of invitee status.
c. Some courts are abolishing the distinction b/w licensees and
invitees.
d. General trend is to abolish landlord non-liability rule in favor
of general negligence rules:
IX.DEFENSES
A. Generally:
1. Is the court the appropriate institution to change traditional negligence
laws that industries have relied upon?
B. Contributory Negligence:
1. General rule: if P negligently and proximately caused his own injury, D
is not liable at all, although D’s negligent conduct also proximately
caused P’s injury.
a. Absolute defense: under contributory negligence, P is
totally barred from recovery of any kind; true even if the D’s
negligence was a much larger factor in the injury than P’s
negligence.
1) Exception: when P’s negligence does not cause the injury, but it
increases the injury’s severity.
2) Contributory negligence only a defense to negligence - NOT a defense
to:
a) Intentional torts.
b) Willful or wanton misconduct.
c) Gross negligence.
b. Burden of proof: contributory negligence is an affirmative
defense which the D must raise and prove.
1) Same rules and test apply to determined whether conduct is
contributory negligent as are use to determine if conduct is negligent.
a) However, conduct which is negligent might not be ipso facto
contributory negligence; reasonable care for one’s own safety is not
necessarily the same as reasonable care for the safety of others.
2) Causal relation: same rules of causation apply – defense is not
available unless P’s harm results from risk which made P conduct
negligent.
c. Efforts to ameliorate harshness of contributory
negligence rule:
1) Process feature: courts almost always view question of contributory
negligence as a question of the jury (effort to ameliorate harshness of
the rule).
2) Doctrinal feature: last clear chance rule.
d. Example: P does not wear a seat belt, and is hit by D, who
is solely at fault. P fractures his skull on the windshield,
which would not have happened had P been wearing a seat
belt. Ex: P is driving at an excessive speed, but the accident
is solely caused by D’s negligence. D will have to pay P, but
P’s award will be reduced, according to the increased
severity of injury that P is responsible. F
2. Exception - Last Clear Chance Rule:

a. D does not have the defense of contributory negligence if
the D’s negligent act occurred after the P’s negligent act
and the D had the last clear chance to avoid injuring P.
1) Rationale: way to ameliorate against too harsh contributory negligence
rule.
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2) Example: P negligently leaves his donkey on the road, with its feet
shackled. D, driving a buggy down the road, does not avoid the
donkey. Held: D is liable. Because D had the last clear chance to avoid
the donkey and failed to do so, P’s contributory negligence is
irrelevant.
3. Contributory negligence is not avoidable consequences:

a. Avoidable consequences deals with P’s failure to mitigate
injury after it is caused; contributory negligence deals with
P’s failure to avoid injury by acting reasonably, before the
accident occurs.
b. Avoidable consequence cases will still afford P some
recovery - the part that D caused but not the injuries that P
exacerbated; in Contributory negligence cases, P gets no
recovery.
4. Reasons for change to comparative negligence regime:

a. Societal changes alter the premise upon which contributory
negligence regime was founded (to encourage capital
investment in industrialization need to immunize some
employers); this is no longer a valid rationale – courts want
to adopt a more equitable and just system.
b. Too harsh.
C. Comparative Negligence:
1. General rule: a negligent P will have his recovery diminished according
to his own percentage of fault.
a. Ex: P was j-walking, D hit P. P’s damages are $100,000. The
jury determines that P was 10% at fault. Therefore, P can
recover $90,000. ($100,000 minus [10% multiplied by
%100,000]).
b. As of 1992, 46 states have comparative negligence.
c. American Trial Lawyer’s Association likes comparative
negligence.
2. Types of comparative negligence:

a. Pure comparative negligence:
1) Look at total fault of all parties and reduce P’s recovery by percentage
of P’s fault.
2) Example: P, drunk and wearing all black, runs right down the center of
a busy throughway at night. D, who looked away from the road just
long enough to change his radio, hit P. P suffers 1 million in damages.
Jury determines that P is 99% at fault, D is 1% at fault. P may recover
1% of 1 million, or $10,000.
3) Most jurisdictions that adopt comparative negligence via the courts
adopt pure form.
4) Criticism:
a) Pure form does not recognize how damages will play out BUT Turk
says this is a dumb argument b/c D will still seek to recover
damages even if P does not bring suit.
b. Impure comparative negligence:
1) If P’s fault is as great or greater than D’s fault, P cannot recover; if P’s
fault is less than D’s fault, then P can recover.
2) Most courts than adopt comparative negligence via the legislature
adopt impure form.
a) Insurance companies like contributory negligence, therefore like
impure comparative negligence and try to influence legislature
process.
3) [?] Seems to be two types of impure comparative negligence (from
text):
a) “Not greater than” comparative negligence: P’s negligence must
not be greater than D’s, if P is to recover. P’s negligence can be the
same as D’s negligence.
1) Example: Both P and D had been drinking. They get into an
accident. P suffers damages of $1 million.
a) Scenario a: Jury determines that P
is 49% liable. P may recover
$510,000.
b) Scenario b: Jury determines that
both P and D are 50% liable. P
recovers $500,000.
c) Scenario c: Jury determine that P is
51% liable, P recovers nothing.
b) “Less than” comparative negligence: P’s negligence must be less
than D’s, if P is to recover.
1) Example (same as above): Both P and D had been drinking.
They get into an accident. P suffers damages of $1 million.
a) Scenario a: Jury determines that P
is 49% liable. P may recover
$510,000.
b) Scenario b: Jury determines that
both P and D are 50% liable. P
recovers nothing.
c) Scenario c: Jury determine that P is
51% liable, P recovers nothing
4) Criticisms:
a) Turk’s thoughts: Turk likes pure comparative negligence better,
says impure comparative negligence may as well be contributory
negligence.
3. Multiple tortfeasors:
a. Most courts look to collective fault of the D; P will be able to
recover against all D as long as P’s fault is less than
combined fault of all D.
4. How fault is determined:

a. It does not correspond to how much of the injury each party
caused. By definition, each negligent act is a sine qua non
of the injury.
b. It means how far did each parties conduct deviate from the
standard of care. If P deviated grossly, there will be little
recovery. If P’s deviation was slight, his recovery will be
larger.
c. Should jury be told effect of their verdict when apportioning
negligence:
5. Results of change to comparative negligence regime:

a. Last clear chance rule repealed: last clear chance rule is
subsumed in the analysis of determining % of fault of each
party.
b. Comparative negligence is now a defense to:
1) Willful and wanton misconduct (contributory negligence not a defense),
and
2) Gross negligence (contributory negligence not a defense).
3) Comparative negligence is NOT a defense to intentional torts
OUTLINE
(contributory negligence not a defense).

c. See changes to the way damages are apportioned.
d. Courts are split on what happens to AR
1) Seems to still be a defense to intentional torts, willful and wanton
misconduct and gross negligence.
D. Assumption of Risk:
1. General rule:
a. If P is aware of risk and assumed it, D is not liable.
b. Absolute defense.
1) Under a contributory negligence regime, AR is an absolute defense to:
a) Strict liability.
b) Intentional torts.
c) Willful and wanton misconduct (recklessness).
d) Gross negligence.
e) Negligence.
2. Types:
a. Express AR:
1) P, in advance of injury, expressly states in writing that he will waive his
rights to sue in negligence.
a) If the injury results, then D is not liable.
b) Waiver CANNOT violate public policy.
2) Whether or not express AR will be upheld depends upon:
a) Public policy, and
b) Unconscionability.
3) In determining whether AR violates public policy or is unconscionable,
courts look to:
a) Disparity of bargaining power. If the P had no choice to sign, the
risk is not valid.
b) Only ordinary negligence may be waived. D can not waive
intentional conduct, or grossly negligent or reckless behavior.
c) Fine Print. Assumption of the risk requires actual knowledge, (or at
least a reasonable P should have known).
d) Health care. Some courts will not allow a patient to waive a health
care provider’s negligence.
b. Implied AR:
1) Generally:
a) Elements:
1) Manifestation of consent.
2) Knowledge and appreciation of risk.
3) Voluntariness.
b) Subjective standard.
2) Primary Implied AR:
a) This defense arises in cases where P’s theory is that:
1) D was negligent in failing to warn of obviously dangerous
conditions, or
2) D was negligent in failing to make safe obvious dangerous
conditions.
b) This is a NO DUTY issue not an AR defense in Turk’s opinion.
1) Courts are confused as to whether this is an AR defense or a
“no duty” (therefore, no breach) issue.
c) General rule for stadiums (see Jones v. 3 Rivers): operator owes no
duty to guard against common, frequent and expected risks of
baseball; he does have a duty to protect against foreseeable risks
not inherent in baseball activity (if a risk is foreseeable, isn’t it
inherent?).
d) Effect of Comparative Negligence Regime:
3) [???] Secondary Implied AR:

a) According to Turk, this is the only true AR defense.
b) Two types:
1) Strict interpretation of secondary implied AR: limited to
where P is aware of precise injury and voluntarily assumes risk
(P was reckless).
a) All forms of strict are subsumed in
comparative negligence regime.
i. Conduct of P (whether he assumed risk) is now part of
fault determination process.
ii. AR by P will now be just a partial defense (no longer an
absolute defense).
iii. If strict is subsumed in comparative negligence, loose
form will also be subsumed.
b) See “animal tag” hypo.
c) See Auckenthaler.
2) Loose interpretation of secondary implied AR: P not aware
of precise risk but P negligently assumes the risk.
a) P is aware of a general risk.
b) Example: when P enters into an
employment K, P assumes all risks
that are part of activity that P
entered into.
c) General rules is that all forms of secondary implied AR are
subsumed in comparative negligence; some jurisdictions still say
strict secondary implied AR is a separate defense BUT very rare.
3. Does AR survive transition to comparative negligence?:

a. Express AR survives transition to comparative negligence
and is still a defense; however there are numerous
exceptions.
b. Trend is to abolish AR as a separate defense or to merger it
into comparative negligence analysis.
c. Courts are split as to whether implied AR survives:
d. Some comparative negligence state are more likely to treat
is as a way to reduce damages, instead of barring all
recovery
e. Some comparative negligence states have abolished it.
f. The point of all of this is that some courts using comparative
negligence have dumped assumption of the risk, others
have held on to it. If you have an assumption of the risk
issue, show why the defense is satisfied, and than counter
that by showing why a court may not still apply assumption
of the risk.
E. Damages:
1. Comparison Chart:
Contributory Negligence Comparative negligence

• No determination of fault. • Jury decides the relative fault of each
Relative Fault
of the parties.
Joint and • P can recover fully from one D. • P can recover fully from one D.
several • Arguments for keeping joint and
liability several liability in comparative fault
regime: as b/w innocent, injured P and
Ds who are jointly liable, the risk of
OUTLINE
insolvency of one D should be borne

by D.
• Arguments against extending joint
and several liability to comparative
fault regime: unfair to D (see Disney
case where Disney was found 1%
liable but had to pay full damage
award and then could not get
contribution against other Ds).
Amount of • Pro rata share (but only if sought by • Proportional share as to total fault of
award all D.
responsible
for.
Contribution • D1 can recover against D2 if D1 paid • [?] D1 can recover from D2 if he paid
rights of each more than his pro rata share of the more than his proportional share.
D judgement.
• P promises to release D from all • P promises to release D from all
liability to P arising from the incident, liability to P arising from the incident,
and and
• P promises that ultimate judgement • P promises that ultimate judgement
against non-settling tortfeasors will be against non-settling tortfeasors will be
reduced by the greater of: reduced by the greater of:
- Pro rata share, or - Proportional share, or
- The consideration paid. - The consideration paid.
Griffin
• P knows the value of the settlement • Proportional means proportional as to
Release –
(i.e, if P is asking for $90,000 from 3 the total fault of all D, not as to all
how are
Ds, he knows he is bargaining for parties (P and D).
settling D
$30,000 in the settlement). • Problem: P is settling for an unknown
protected?
quantity – risky b/c he does not know
% of fault of D with whom he is
settling.
• PA law: regardless of deal in release,
non-settling D’s contribution will only
be reduced by the % of fault of the
settling D and not by the actual
consideration paid by the settling D.
Use of partial • Yes • [?] Yes
and full
satisfaction
defenses.
2. Damages Under Contributory Negligence Regime:

a. Individual (not acting in concert) tortfeasors whose conduct
combines to cause a single, indivisible injury to P are jointly
and severally liable to P for the full amount of damages.
b. P can seek full judgment against any D.
1) Rationale: b/w innocent injured P and insolvent D, P should get award.
2) P can only collect the full judgement amount once (partial and full
satisfaction defenses).
c. D can then seek contribution damages against joint
tortfeasors.
1) To sue in contribution D1 must show that d2 was jointly and severally
liable and that D1 paid more than his fair share of liable.
2) D1 can recover for any amount that he paid beyond his pro rata share.
3. Damages under Comparative Negligence Regime:

a. See chart.
b. PA law: regardless of deal made by settling D, non-settling
D’s contribution will only be reduced by the % of fault of the
settling D (not by the actual consideration paid by the
settling D).
1) Rationale: encourage settlement.
2) In some cases, P will get more than the full award.
4. Defenses D can Use Against P Seeking Recovery of Judgment:

a. It is P’s duty to execute the judgement.
b. Partial satisfaction: D2 would argue that P already
received some of the judgement amount from another D
and that he only owed the remaining amount.
c. Full satisfaction: D would argue that P has already
received the full judgment amount and is not allowed to
receive it more than once.
X.RESPONSIBILITY OF MULTIPLE PARTIES, INCLUDING THE P
A. Generally:
1. Toxic tort cases create significant conflicts traditional C/L tort
principles.
a. These cases strain SOL, factual cause requirements.
2. In response, courts try to adapt the C/L negligent requirements (which

developed in accident cases) without totally destroying the C/L
principles.
a. Example of courts making creating adjustments to the C/L
negligence principles to deal with toxic torts cases:
1) PA (in Simmons v. Pacor) creates a 2-part cause of action for asbestos
cases:
a) P must prove physical impairment before he can recover anything;
if he proves this, he can recover:
1) Economic loss.
2) Medical costs.
b) P can recover once he develops cancer for:
1) Fear of cancer damages.
2) Damages from cancer.
B. Joint enterprises
1. Driver’s negligence cannot be imputed to owner-passenger P so as to
limit P’s recovery in an action in negligence; will only limit recovery if
owner-passenger is personally negligent and the proximate cause of
the accident/injury (see Watson v. Regional Transit District).
C. [?] Manufacturer’s Duty to Warn – see duty to warn under products

liability section:
1. Arises once an ORPP manufacturer knew or should have known that
there is a risk.
2. Once evidence is available in scientific community, there is imputed
knowledge.
3. Reasonable manufacturer has a duty to keep current, to know about
research trends.
D. Market Share Liability Theory:

1. General rule for courts using this approach: in group liability case,
where P cannot establish factual cause and cannot find out who cause
OUTLINE
the injury, court will suspend the factual cause requirement if P has a
substantial proportion of the manufacturers in the relevant market
before the court.
a. [?] Assumption: are this assumptions by the court or does
P have to prove any these elements?
1) Assumes that each manufacturer breached his duty – all manufactures
are negligent.
2) Product is generically defective.
3) P is unable to identify specific manufacturer through no fault of the P.
4) No contributory negligence by P.
2. What constitutes substantial proportion of the relevant market?: 60 to

100% of the relevant market is usually considered adequate.
3. Effect of factual cause suspension on determining fault and damages:

a. Each manufacturer’s liability share = manufacturer’s
market share.
1) Problem: if P does not have total market of all D, P will not be able to
recover full damages and P will not be able to go after other Ds later
b/c they will not meet the substantial proportion of the relevant market
requirement; there are two approaches as to what proportion of
the total damages awarded to P each D would have to pay.
a) See Sindell: to ensure P gets full 100% of damages due, D’s liability
share will be his % among the other Ds (at times D will pay more
than his market share).
b) See Brown: P gets less than 100%; P has to shoulder the burden of
those D not in the lawsuit or who are insolvent (each D will be pure
market share).
b. Abolish joint and several tort liability when this
approach is used
c. Each D only liable to P for his share of the damages; P
must collect separately from each D.
4. Courts are balancing interest: in attempting to resolve P’s factual

cause problems, court is balancing interests – take something away
from D (by suspend factual cause requirement) and taken something
away from P (by abolish joint and several liability).
a. P does not have joint and several liability b/c unlike
Summers where court knew that all the potential
wrongdoers were before the court, not all wrongdoers are
necessarily before the court in these types of cases.
b. D does not have but for defense but P must show that
though no fault of the P it is impossible for P to establish
factual cause.
5. [?] Defenses:
1) D’s only defense is to show that he did not manufacture the product in
that market at that time.
2) [?] Can D show contributory negligence?
6. Limited application of this theory to DES cases.

a. Public policy for not applying this theory beyond DES cases –
courts are concerned about what effect (positive and
negative) this theory would have on certain behavior in
society (i.e., will it discourage new drug development – see
Shackil).
7. Other theories: in addition to market share theory, there are several
other theories that to try to hold industries liable for injuries.
a. Modified Alternative Liability Theory (p.446)
b. Concert of Action Theory (p.447).
c. Enterprise of Industry-wide Theory (p.447).
d. Market Share Modified Theory (p.447-48).
e. Risk Contribution Approach (p.448).
XI.PRODUCTS LIABILITY
A. Generally
1. Products liability NOT a separate area of tort law:
a. Products liability simply involves cases where a consumer
(P) sues the manufacturer or seller of a product for a
personal injury caused by a defect in the product.
2. Theories for products liability cases: often P uses all three theories.
a. Negligence.
b. Strict Liability.
c. Warranty (express and implied).
3. Three different types of defects:
a. Manufacturing Flaw.
b. Design Defect.
c. Failure to warn or inadequate warning.
4. Key determination in products liability cases: what does it mean to
exercise reasonable care in manufacturing a product.
5. [?] Even though P may be suing under S/L, court will use a negligence
standard in determining whether the D was strictly liable.
B. Privity Requirement Abolished

1. K of sale defined the scope of duty therefore limiting those who could
be considered foreseeable P: under the privity rule, duty in negligence
only extended to those persons in privity of K with the manufacturer.
2. Exception: courts made an exception for inherently dangerous products
(if you sell inherently dangerous products, you do not get the benefit of
the privity limitation).
3. In MacPherson, NY abolishes privity requirement through some tricky
opinion writing (Cardozo is trying to say autos are like poison, therefore
inherently dangerous – tying to use precedent to establish a new rule).
C. Theories Upon Which P Can Bring Suit in a Products Liability Case:

1. Negligence:
a. Rule: one who negligently manufactures a product is liable
for any personal injuries proximately caused by the
negligence.
1) Go through the C/L elements of negligence: duty, breach, cause,
damages.
b. Even after privity is abolished, breach of duty

problems remain: however, it is still difficult for P to prove
traditional negligence requirements b/c P cannot show
manufacturer breached the duty of reasonable care).
1) D-manufacturer could always use raise the defense that he did what
was customary in the industry and therefore what was
reasonable.
2) Under negligence, there is no duty on manufacturer not to make
defective products.
OUTLINE
c. Types of Damages Recoverable:

1) Property Damages: most courts allow recovery under this theory
when it is only property damage and not personal injuries.
2) Economic Harm: if the plaintiff suffers only economic harm (lost
profits), the courts are split if they will allow recovery from a remote
seller.
3) Bystander: where the plaintiff is a casual bystander (as opposed to
purchaser or a user), he can recover in negligence if he can show that
he was a foreseeable plaintiff.
d. Liability of Other then Manufacturers:
1) Component Part Manufacturer: will be liable if he fails to use
reasonable care, even though he does not sell it directly to the public.
2) Third Person's Failure to Inspect:
a) The mere failure of a 3rd party obliged to inspect will not relieve
the manufacturer of liability.
b) If the 3rd party does find something in his inspection, but fails to
warn, some courts will say that the offense is so gross that it breaks
the chain of causation.
3) Retailers:
a) Not likely to have a successful negligence action against a retailer
because it is not difficult them to meet the standard of due care.
b) With specific knowledge the retailer does not normally have a duty
to inspect.
c) If retailer has reason to know danger than he has a duty to inform.
2. Strict Liability:
a. Rule: D is strictly liable for physical harm to P or his
property caused by a defective condition of a product which
renders it unreasonably dangerous, if D sold the product in
that condition and D is engaged in the business of selling
such products.
1) History: Greenman v. Yuba (1963) (which has its origins are in
Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co. (1944))
introduces a new theory for P to use in pursuing product liability claims
– STRICT LIABILITY.
2) Rationale:
a) Public safety: control of risk, effect behavior, produce safer
products.
b) Economics: deep pocket manufacturers are in best position to bear
the cost of insurance to protect against the risk of injury to
consumers – manufacturers can spread the cost most efficiently.
c) Fairness to consumer: consumer cannot protect against latent
defects.
b. RSTMT (1965) quickly adopts this theory:

1) § 402A – Special Liability of Seller of Product for Physical Harm
to User or Consumer: 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 is property, if:
a) Seller engaged in business of selling such a product, and
b) It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
2) The rule stated above applies although:
a) Seller has exercised all possible care in the preparation and sale of
his product, and
b) Use or consumer has not brought the product from or entered into
any contractual relation with the seller.
3) Requirements:
a) Product was defective.
b) Defect existed at the time it left the D’s control.
c) Defect caused the P's injury.
d) Product was being used in the way it should be used.
4) Caveats:
a) Although RSTMT expresses no opinion as to whether 402A applies
to harm to persons other than users and consumers, scope of
liability now extends to anybody injured when product is used in an
intended foreseeable way (includes bystanders).
b) [?] Although RSTMT expresses no opinion as to whether 402A
applies to the seller of a product expected to process or otherwise
change product before it reaches produces, everyone in the chain
of distribution who sells a defective product is a proper D.
c) Although RSTMT expresses no opinion as to whether 402A applies
to the seller of a component part of a product to be assembled,
scope extends to component part manufacturers.
5) Retailers are liable under this section; will usually be
indemnified by the manufacturer.
a) Example: K-mart will be liable under the exploding dish hypo.
c. Unreasonably Dangerous:
1) RSTMT seems to require that the product be both defective and
unreasonably dangerous BUT a few jurisdictions view the 2
concepts as synonymous.
2) What test: jurisdictions differ as to the test to be used in determining
whether something is an unreasonably dangerous:
a) Consumer Expectation Test: requiring the product to be dangerous
"to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics."
b) Risk Benefit Balancing Test: requires the trier of fact to balance the
safety risks of the product as designed, and the utility and other
benefits of the product as designed, against the safety risks and
benefits of the product if it had been designed as the plaintiff
claims it should have been. The factors most often used in this test
are:
1) the usefulness and desirability of the product as designed;
2) the likelihood and probable seriousness of injury from the
product as designed;
3) the availability of an alternative product or design that would
meet the same need and not be as unsafe;
4) the manufacturer's ability to eliminate the danger without
impairing the product's usefulness or making it too expensive;
5) the user's ability to avoid the danger;
6) the user's anticipated awareness of the danger; and
7) feasibility of the manufacturer's spreading the risk of loss by
pricing or insurance.
d. Unavoidably Unsafe Products – comment k.

1) General rule: under comment k to § 402A, some highly useful
products (e.g., certain drugs and vaccines) may be "unavoidably
unsafe" because of inherent dangerous side effects which "in the
present state of human knowledge" cannot be eliminated. Such
products, "properly prepared, and accompanied by proper directions
and warnings," are not defective or unreasonably dangerous.
OUTLINE
2) History: intended to protect companies produces vaccines from

immunity.
3) Characteristics of an unavoidably unsafe drug:
a) Unique and great benefit.
b) Unavoidable, intrinsic risk that cannot be eliminated.
4) 2 approaches to determining whether a product is unavoidable
unsafe:
a) Majority approach: courts use a case by case analysis to see if drug
satisfies the elements of comment k.
1) Argue that comment k should only apply to certain types of
prescription drugs (not minor ailment ones) b/c in only some
drugs does the utility outweigh the gravity of the risk;
2) See Feldman v. Lederle Labs (NJ) and dissent in Grundberg v.
Upjohn Co. (UT).
b) Minority approach: comment k to RSTMT § 402A applies to all FDA
approved prescription drugs are immune from strict liability (per se
unavoidably unsafe) b/c:
1) It is in the public interest to have available and affordable
prescription medications, and
2) FDA has an extensive regulatory system, and
3) There are other avenues of recovery for injured P.
4) In CA, all prescription drugs fall under comment k.
5) UT does not wholeheartedly adopt comment k but same result.
5) Operates as a defense to design defect cases ONLY.
a) Rebuts the P’s theory that the defect is unreasonably dangerous.
b) Even if product is unavoidably unsafe, that is no defense to
manufacturing flaw and failure to warn cases.
e. P must still show proximate cause; analysis is the same

as with negligence (see baby mink defense).
1) P still must prove factual and proximate cause.
2) P must prove that if the defect was not there than the accident would
not have happened.
f. S/L is limited to physical harm and consequential
damages resulting from such harm.
g. Effect of adoption of S/L on products liability cases:

1) Now manufacturer does have a duty not to make defective
products.
2) D-manufacturer no longer has the defense that he acted
reasonably or that he did what was customary in the industry.
3) Under S/L, P can sue manufacturer and retailer.
h. Res Ipsa Loquitor in S/L Cases:

1) Generally, RIL does not work b/c of theoretical problems.
a) Example: first element in RIL is to show that injury would not have
occurred unless someone was negligent; S/L does not require
negligence.
b) Example: control problems – when does product have to be in D’s
control.
2) In some limited cases, inference may be so compelling that courts will
use an analogous RIL rule in S/L (see Whitted v. GM Corp.).
3. Warranty Theory:
a. Rule: where there is a direct contractual relationship b/w
the injured P and the seller of a product, a breach of K action
is possible if:
1) P’s injury occurred as result of breach of warranty expressly made by
seller (UCC 2-313).
2) P’s injury occurred as result of breach of warranty implied by law
regarding the nature or condition of the product.
a) Implied Warranty of Merchantability (UCC 2-314).
b) Implied Warranty of Fitness for a Particular Purpose (UCC 2-315)
b. Liability for breach of warranty is strict; no negligence or
other fault need be proved.
c. Limitations:
1) Seller must be given prompt notice of the breach,
2) Buyer must have relied upon the warranty, and
3) Seller in certain cases can limit or disclaim these warranties.
a) Disclaimers of warranty: often invalid as unconscionable - this is
especially true where the purported exclusive remedy is the repair
and replace warranty.
d. Privity limitation for implied warranties now abolished (see
Henningson v. Bloomfield Motors).
e. Rationale for imply warranty and extend liability past
the dealer to the final consumer:
1) Fairness to the consumer:
a) They did not do anything wrong.
b) The manufacturer is in the position to make the product safe.
c) Often they do not have the ability to accurately inspect a product
and know that it is unsafe.
2) Equitable Distribution:
a) The manufacturer can spread the cost of insurance better - across
their products.
b) Deep pockets rational.
c) No support in economics for this.
3) Promote Public Safety: put the responsibility on the one who
controls the risk.
4) Note: merchantability - does what an ordinary consumer would expect
it to do.
D. [?] Manufacturing Flaw Defect:

1. Description: a manufacturing defect is one which occurs in a particular
product unit b/c of an error or omission in manufacturing, assembly or
processing.
2. Rule: to recover under a manufacturing flaw case using the consumer
expectations test, P must:
a. P proves that the product failed to perform as safely as
an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.
b. P proves that the product's design proximately caused
injury and the defendant fails to prove, that on balance the
benefits outweigh the risk of danger inherent is such design.
3. Can also use a risk-benefit analysis.
E. Design Defect:
1. Generally:
a. Covers obvious and latent defects.
b. P must show that there is alternative feasible design and
that the alternative design would have prevented or reduced
the harm for which the P seeks to recover.
2. Comparison chart to manufacturing flaw defects:
Manufacturing Flaw Defect Design Defect

OUTLINE
• Defect which occurs in a • Defect inherent in product’s

particular product unit b/c of design and thus are common
Description an error or omission in to every unit of the product
manufacturing, assembly or on the market.
processing.
• Only affects one particular • Defect affects all products on
Economic
product or batch. the market – high economic
burden
burden.
Unreasonably • Consumer expectation test. • Risk-utility test
dangerous
product test
• Defect is comparison to • Difficult to define b/c there is
some normal non-defective no prototype to compare to.
standard product. • Have to look for an
Definition of
economically and technically
defect
feasible alternative design.
• Negligence is intrinsic in the
idea of design defect.
Effectiveness • 402A works well • 402A application has
of RSTMT problems
402A
• Strict liability. • Includes S/L and negligence
Predominant principles (when assessing
theory economic and technical
feasibility.
3. Crashworthiness Doctrine:
a. Theory: product is designed in a way that design will
increase the likelihood of aggravated injury if there is an
accident.
1) The theory is NOT that the design defect caused the injury.
b. Establishes that certain kinds of misuse are so common that
they are foreseeable.
c. Court holds that manufacturers must design products in a
way that anticipates (reasonably takes into account) the
likelihood that the product will be misused.
4. Economically and Technically Feasible Alternative Design:

a. To win a design defect case, P must show that:
1) It is technically feasible to design a safer alternative.
a) Technology is available.
b) Production technology is available.
2) It is economically feasible to design a safer alternative
b. Almost any product can be made safer, but the issue is
where to draw the line between the increased costs of the
product and the additional safety.
c. Focus is on negligence principles (like a Learned Hand
analysis but seems to be forgetting about weighing the
gravity of the harm.
d. Generally, D still has the defense of saying a
reasonable manufacturer would not know and would
not reasonably have known of feasible alternative
design.
1) Imputed knowledge approach (minority approach) – hybrid of S/L
and negligence principles:
a) Manufacturer is imputed to know whatever is known about the
product at the time of distribution (S/L).
b) Given this imputed knowledge, would an ORPP manufacturer have
continued to distribute the product (negligence).
e. Note: see Riley v. Beckton Dickinson (nurse contracts
HIV from needle) is a cases illustrating where economic
feasibility is too prohibitive and technical feasibility is not
great, therefore court finds for D.
f. Note: should court be in a position to make expert business
decisions that are usually in the domain of the engineer.
5. P in design defect cases usually use risk-benefit analysis test.
F. Warning:
1. Generally:
a. [?] In both types of warning cases, P must show that had
he known of the alternative (had he been informed or
adequately warned), he would not have used the
product or bought it.
b. Generous courts: b/c cost is deminimus in warning cases,
courts are fairly generous.
c. Warning cases raise many professional ethics
questions.
d. In warning cases P usually also has an informed consent
case against the doctor (except in PA where P has bad luck
b/c there is no duty to inform patients about prescription
drugs – Turk says this rule is wrong!).
e. Does RSTMT 402A have any effect on warning cases?
f. [?] Comment j: which is only intended to apply to
unavoidably unsafe products and extends it to all products.
2. The Duty to Warn:

a. [?] Standard: manufactures have the duty to warn
foreseeable users of the risks and dangers of foreseeable
uses of physical injuries.
1) Would a reasonable manufacturer have warned of this danger
(negligence).
2) At time of distribution, the manufacturer has a duty to warn consumers
of dangers known or that reasonably should be known about the
product (given the scientific, technological and other information
available at the time of distribution).
b. Scope: liability extends to known and should have known
dangers.
1) Example: see Sindel, where court found the D should have found out
about the harm through a published study and did not warn after that.
2) Most manufacturers do not know right away that their products will be
dangerous in certain circumstances, but as it accumulates knowledge
it has a duty to warn.
c. Learned intermediary doctrine: manufacturer of
prescription drugs only has a duty to warn physician (not
ultimate consumer).
d. Defenses to a duty to warn case:
1) Manufacturer can argue that he did not know of the harm, and
2) That a reasonable manufacturer would not have known.
3) Note: negligence concept and it is based upon fairness to the
manufacturer.
3. Adequacy of Warning:
OUTLINE
a. Generally: To satisfy its duty to warn, a manufacturer must

provide, in language comprehensive to a layman, a warning
conveying a fair indication of the nature, gravity and
likelihood of known or knowable dangers.
1) It must identify the precise danger of which the plaintiff complains. It
cannot be just a general warning.
2) Duty to warn is of material risks, not immaterial ones.
3) Usually an issue for the trier of fact.
b. Substantively inadequate: when it fails to provide the
consumer with information necessary to properly assess the
risk.
c. Procedurally inadequate: involves conspicuousness, size
and location of warnings, need for pictorial and other non-
verbal warnings such as buzzers and bells.
d. Duty and Causal Analysis:
1) User: extends to purchasers, users and others who come into contact
with the product.
2) Use: duty extends beyond intended use, to foreseeable use, and it
includes foreseeable misuses.
G. [?] Is P’s Behavior a Defense to a Products Liability Claim:

1. Under contributory negligence regime:
a. Assumption of risk was an absolute defense to strict
liability.
b. Contributory negligence was NOT a defense to strict liability.
2. Emerging rule: comparative negligence subsumes all defenses so that
assumption of risk is no longer a defense in strict liability cases once
the jurisdiction adopts comparative negligence:
a. Therefore, in either a negligence or strict liability case, P’s
recovery will be reduced by his % of fault (see Daly v. GM
Corp.).
b. Counter argument: in S/L cases, courts are imposing
liability based policy, not on fault, therefore we should not
consider the P’s fault (compare to negligence, where reason
for impose liability is based on fault).
c. This will create a problem in manufacturing defect
cases: courts will be comparing apples to oranges - liability
of D is based on policy and P misused the product (fault).
1) In Johnson v. GM Corp. the court solves the problem: look at 100% of
P’s injury and determine what % of injury was caused by defect and
what % caused by P’s negligence.
3. Where assumption of risk survives: in those jurisdictions that adopted
comparative negligence by statute (where statute says “comparative
negligence”), some courts have held that the statute only applies to
negligence cases, therefore assumption of the risk is still an absolute
defense.
H. [?] Preemption:
1. When Congress intends for a federal law to dictate the boundaries of a
manufacturer’s legal duty , state tort law can set the standard of care
within the exercise of that legal duty.
a. Based on Preemption and Supremacy clauses.
2. Express preemption provisions and implied preemption.
3. If a state regulation directly conflicts with a federal provision, the state
rule may be pre-empted.
PART II. STRICT LIABILITY
A. Generally:
1. There is liability without fault.
2. Do not have to prove negligence or intent.
3. Still have to prove cause.
4. The defenses are still applicable.
5. Note: there are fault concepts which creep into the cause analysis and
the defenses.
B. Abnormally dangerous products:

1. Applies to a very limited group of activities (not common activities that
have social value).
2. Governed By RSTMT § 519 and 520:

a. RSTMT § 519 – General Principles:
1) One who carries on an abnormally dangerous activity is subject to
liability for harm to the person, land or chattels of another resulting
from the activity, although he has exercised the utmost care to prevent
such harm.
2) This strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.
3) S/L starts to sound a lot like negligence under RSTMT 519:
a) P must demonstrate that the injury that occurred is within
foreseeable type of harm that makes the activity abnormally
dangerous.
b. RSTMT § 520:
1) In determining whether an activity is abnormally dangerous, the
following factors are to be considered:
a) Existence of a high degree of risk of some harm to the person, land
or chattels of others;
b) Likelihood that the harm that results from it will be great;
c) Inability to eliminate the risk by the exercise of reasonable care;
d) Extent to which the activity is a matter of common usage;
e) Inappropriateness of the activity to the place where it is carried on;
and
f) Extent to which the its value to the community is outweighed by its
dangerous attributes.
g) Note: these factors are not all that helpful on the close cases -
everything must be weighed against the value of the activity to the
community.
h) Note: RSTMT 520 is flexible doctrine that works by analogy to
activities already denoted abnormally dangerous (no formula for
how to apply 6 factors or how to weigh them).
i) Note: Posner’s view is that in applying the 6 factors what court is
really trying to do is to determine whether negligence provides an
adequate remedy (i.e., could reasonable care prevent the injury).
c. “Common usage”: means commonly used by the general
public (not used commonly by a few members of the public
(see Klein)).
d. P must demonstrate that the injury that occurred is
within foreseeable type of harm that makes the
activity abnormally dangerous (see baby mink case).
3. Types of activities identified as abnormally dangerous:

a. Storage, manufacture and use of explosives:
1) Fireworks is generally not considered to be an abnormally dangerous
OUTLINE
activity; compare to Klein where court found there

b. Fumigation – crop dusting.
c. Large power facilities.
d. Transportation of large quantities of chemicals.
1) Transportation of large quantities of chemicals by trains is NOT an
abnormally dangerous activity.
2) Transportation of large quantities of chemicals by truck on highways is
an abnormally dangerous activity.
e. Storage of large quantities of water.
4. Underlying Policies:
a. If the value to the community do not want to overtax that
activity; if there is no real social value, court is willing to tax
it right out of existence.
1) Those who carry on the activity are the insurers of that activity.
b. These activities are so dangerous that negligence is not a
sufficient protection for society:
1) Due to difficulties of proof.
2) Due to standard of care needed with these activities.
C. Animals:
1. Herded Animals - if they got loose, and caused property damages the
owner was automatically liable.
2. Wild Animal Pets - strict liability will attach if they attack a guest.
3. Domesticated Animals: HYPO: A visits B's home and it bitten by B's
dog:
a. Negligence: B would only be liable if the dog had bitten
before. This is called the "one bite rule".
b. Statutes: many states have imposed strict liability by
statute.
D. Strict Liability With Land:
1. Fletcher v. Rylands:
a. If use land in a non-natural manner, will be strictly liable, or
b. If bring something onto the land which is likely to do
mischief if it escapes, and it does escape, strict liability will
attach.
c. Basis for imposing liability: likely to cause serious harm
even if you are non-negligent. This applies even of the risk
of harm is slight.
2. Turner: Texas court said that the use of the water containers was a
natural use and therefore it is not considered abnormally dangerous.
PART III. DAMAGES
A. Two Major Classes

1. Compensatory damages: goal is make P whole, put P back in position
he would be in but for the conduct of the D.
a. Special damages: out of pocket economic losses.
1) Medical expenses.
2) Lost wages
3)
b. General damages: physical and emotional pain and
suffering.
1) To establish what level of general damages to ask for multiple special
damages 3x or 4x in non-permanent injury cases.
2. Punitive damages: punish the D, deterrence.
B. Distinguish b/w injury types.
1. Totally corrected (non-permanent) injury: only determining costs and
general pain and suffering that occurred during accident and during
rehabilitation period.
2. Permanent injury: ask jury to award damages for the P’s life, involves
life expectancy and earning expectancy analysis yet juries do it every
day.
C. Attorney’s Fees
1. In US, each side pays their own attorney’s fees.
2. In personal injury actions, attorney’s often get a contingency fee (% of
judgement if P prevails).
D. Collateral Source Rule

1. Rule: jury is not allowed to hear evidence of payment to P from a
collateral source (insurance company) and P gets full judgment on P’s
injury regardless of what is paid by insurance company.
2. Purpose: encourage people to buy insurance and subrogation.
E. New Rules for Auto Cases – see PA § 1701: P cannot recover special damages
if P received payment from insurance company – jury cannot hear evidence as to
lost wages or medical expenses.
F. Growing Role of the Legislature.
PART IV. TORT REFORM
A. Growing Role of Legislature in Making and Regulating Tort Law
B. Four Big Tort Reform Movements:

1. Worker’s Compensation (increased P’s rights).
2. Products Liability (increased P’s rights).
3. Rejection of Contributory Negligence and Rise of Comparative
Negligence (increased P’s rights).
4. Tort Reform Movement (increased protection of D):
a. Damage caps for non-economic damages.
b. Eliminate collateral source rule.
c. Regulate attorney’s fees.
d. Change joint and several tort liability.

Torts - Spring 2000 Professor Turkington Outline Textbook: Cases and Materials On The Law of Torts (3 Ed.), Christie, Meeks, Pryor, Sanders

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Torts - Spring 2000 Professor Turkington Outline Textbook: Cases and Materials On The Law of Torts (3 Ed.), Christie, Meeks, Pryor, Sanders

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Torts – Spring 2000

A. Prima Facie Elements (duty-breach-cause-damages):

C. General Analytic Framework (like framework for intentional torts) :

D. Risk Theory (theory underlying negligence):

E. Distinguished from Intentional Torts:

F. Negligence is always tied to litigation – can we get the claim to a jury?

B. Subjective v. Objective Standard:

parents are negligent directly for allowing minor to

2. Mental condition (objective):

3. Physical condition (subjective):

III.CAUSATION (FACTUAL CAUSE)

A. Proximate cause = factual cause + legal cause (rule).

B. Problems with Proving Factual Cause:

2. Independent sufficient factual causes:

3. Independent alternative causes (do not run with Summers holding

5. Note: whenever a court suspends the traditional formal tort requirements

C. Role of expert testimony in establishing factual cause:

A. Generally – evolution of proximate cause analysis:

2. Where there is a reasonably foreseeable risk of injury that risk

knocks other ship over, continue downstream, hit bridge

3. Last clear chance: one who is knowledgeable of a risk and can

4. RSTMT (Second) of Torts § 435(2): actor’s conduct may be held not to

B. Economic Cost/Benefit Analysis:

C. Defining Foreseeable P – two views:

D. At what point is foreseeability measured in proximate cause

E. Application to cases – Intervening Cause Cases:

2. Legal presumptions – process for determining whether an

F. Application to cases – Direct Cause Cases:

G. Application to cases – Miscellaneous Cases:

3) [?] What is the negligent act: to serve alcohol or to serve alcohol to

I. Exam advice and questions:

V.ESTABLISHING A STANDARD OF CARE BY THE LEGISLATURE – VIOLATING

C. Class Hazard Rule:

VI.ROLE OF CUSTOM AND EXPERT TESTIMONY

offensive contact, and that the consent was exceeded.

3. Negligence in the Performance of the Operation:

3) Where P introduced expert who only offered evidence as to a

4. Negligence in Not Obtaining Informed Consent:

5. Expert/Specialist Rule: if the defendant is an expert or

a) This case basically stands alone.

VII.RES IPSA LOQUITOR

B. Requirements for RIL:

2. Instrumentality that caused the injury was in exclusive control of the D:

3. P did not contribute to the injury:

D. RIL Generally Not Applicable in Medical Malpractice Cases:

VIII.SPECIAL DUTY ISSUES

2. RSTMT (Second) of Torts § 314A. Special Relations Giving Rise to Duty

3. RSTMT (Second) of Torts § 314B. Duty to Protect Endangered or Hurt

4. RSTMT (Second) of Torts § 324A.

5. Therapist-Patient special relationship:

6. Damages for failure to act cases:

C. Negligent Infliction of Emotional Distress (NIED):

3. Direct victim cases:

4. Policy Concerns – Liability Limiting Principles:

in everyday negligence auto accident cases when we ask them to

5. "Eggshell Plaintiff" Rule Inapplicable: unless D has actual knowledge of

D. Owners and Occupiers of Land:

upon a limited area of his premises,

to make the condition safe, or to

c. Led to all sorts of rules, sub-rules and distinctions.

2. Exception - Last Clear Chance Rule:

3. Contributory negligence is not avoidable consequences: