Torts Outline

Fall 2016 Torts Outline (McClurg)
Torts Overview
Intent
Intentional Torts (Dignitary Torts)
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
11
Trespass to Land
15
Trespass to Chattels
16
Conversion
17
Defenses to Intentional Torts
18
Consent
18
Medical Consent
19
Self Defense: is a privilege
22
Defense of others
24
Defense of property: reasonable mistake is NOT allowed under common law rule of property.
24
Recovery of Property
24
Necessity
25
Negligence
27
Elements of Negligence
27
Negligence Formula
27
Standard of Care
30
Emergency Doctrine
32
Standard of care for Physical Handicaps
33
Standard of Care for Children
33
Standard of Care for Mental Handicaps
34
Professional Standard of Care (Medical Malpractice)
35
How to Avoid Professional Malpractice
35
Medical Malpractice Standard of Care Rule
35
Establishing the Professional Standard of Care
35
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Informed Consent
38
Elements of an Informed Consent Claim
38
Defenses to Informed Consent
39
Negligence Per Se (Violation of Statute)
39
Requirements of Negligence Per Se
40
Effect of Statute
40
Proof of Negligence
43
Burdens of Proof
43
Plaintiffs Burden in Civil Cases
43
Circumstantial Evidence
43
Direct Evidence
45
Res Ipsa Loquitur
45
Causation
49
Causation In Fact
49
Post hoc ergo propter hoc
50
Proof of Causation
50
Concurrent Causes
51
Problems in Determining What Party Caused the Harm
53
Proximate or Legal Cause
54
Proximate Causation Approaches
54
Unforeseeable Consequences
54
Foreseeability
55
Intervening Causes
57

I.
Torts Overview
A. Definition: Comes from the Latin word tortus twisted and French word tort- injury or wrong.
It is a civil wrong, other than a breach of contract, for which the law provides a remedy.
B. Law of Obligation: to compensate or restore a person to the place (with money or other
compensation) before the tort occurred
1. Hypo: Sheldon and Sheila approach a light at an intersection. Light wasnt working and
both people had green lights. Sheila is hurt and sues Sheldon.
a) Is this a tort?
(1) No, this doesnt work as both people had green lights. Neither person
was at fault.
2. Main purposes: Main would be to deter and forgive.
a) Provide a peaceful means for adjusting the rights of parties who might otherwise
take the law into their own hands.
b) Deter Wrongful Conduct
c) Encourage Socially responsible behavior
d) Restore injured parties to their original condition, insofar as the law can do this,
by compensating them for their injury.
e) To vindicate, clear someone for blame or suspicion, individual rights of redress.
3. Historical Origins
a) Writ of trespass: Broad sense of trespass meaning doing something to hurt or
offend someone.
b) Writ of trespass on the case: Was used when the wrong did not have a law or
had been tried before. This was essentially a new case with no precedent.
4. Approach to Torts
a) Originated with liability based upon actual intent and actual personal culpability
with a strong moral tinge, and slowly formulated external standards that took less
account of personal fault.
b) (More Accepted approach) law began by imposing liability on those who caused
physical harm, and gradually developed toward the acceptance of moral
standards as the basis of liability.
c) There has been no steady progression from liability without fault to liability based
on fault. The difference between no-fault periods and fault-based periods is,
rather, one of degree.
C. Liability based on Fault
1. Fault: One who voluntarily does an act which results in damages to another is
responsible for the damages even if the act is lawful. (Hulle v Orynge)
a) Hulle v. Orynge: lawyer argued erect building and piece falls on neighbors
house then held liable also argued lift stick in self-defense to prevent assault
accidental injury person behind him still at fault. First case and establishes an
idea of fault.
(1) RULE: If a man does a thing, he is bound to do it in such a way as to
cause no harm or injury to others.
2. A person is liable for damages he causes unintentionally by intentional actions.
a) In order to establish fault THE PLAINTIFF must have evidence to support that
either the intention was unlawful or the defendant was at fault. (Brown v Kendall).
b) Plaintiff bears the burden of proof in intentional torts. (Brown v. Kendall)
II.
c) There are two different ways of determining fault: intent and negligent. (Brown v
Kendall)
(1) Brown v Kendall dogs attacking each other and one owner grabs stick
and hits plaintiff in eye accidentally.
D. Fault Continuum
1. Intentional torts: judged by a subjective (internal: of a particular state of mind) standard.
a) Malicious conduct: acting with a specific intent to harm.
b) Desire intent: acting with a desire or purpose that a consequence will follow.
c) Belief intent: acting with a belief that a consequence is substantially certain to
follow. (judged objectively)
2. Negligent Torts: judged by an objective (reasonable person) standard.
a) Recklessness: acting to create an unreasonable high probability of a
consequence. (aggravated negligence)
b) Negligence: acting to create an unreasonable foreseeable risk of a consequence.
(1) Hypo: You are by a lake and shoot a shotgun because you are alone.
Would this be considered a battery?
(a) No, because both desire intent and belief intent is not present.
Intent
A. Two types of intent: dont have to have both
1. Desire Intent: main type, person acts with the desire or purpose to inflict the
consequence of a tort, difficult to prove
2. Belief Intent: substantial certainty of consequence, even if dont desire the result, actor
must subjectively believe that the result is going to follow, the result must be foreseeable
or probable (Garrett v. Dailey)
a) Garrett v. Dailey: Five-year-old boy pulled chair from underneath old lady as she
was sitting down. Boy says he wasnt playing a joke, but just wanted to sit in the
chair.
(1) Court ruled that defendant could believe that the old lady would fall.
Established the standard for belief intent. Does not have to intent to
commit the tort, must establish adequate level for belief intent that the tort
will happen. (objective standard).
(a)
(2) Ouch Rule Children are capable of forming intent to commit the tort of
battery. Children could be held liable for contact that any child would
know to cause someone to say ouch.
(a) Age does not negate liability
(3) Parents are not liable for childs torts
(a) 4 year old who strikes his babysitter in the throat crushing her
larynx is held liable.
(b) 2 year old who bites a baby is too young to to form intent.
B. Good faith intent mistakes do not negate liability
1. Ranson v. Kitner: Defendants were out hunting wolves and shot the plaintiffs dog
believing it was a wolf. Defendants were liable for the killing of the dog even though they
made a good faith mistake in committing the tort.
a) Hypo: Defendant fuel oil distributor had a contract to deliver oil to a residence.
One day, during the delivery, the oil overflowed and damaged surrounding lawn

and shrubberies. The tank overflowed because it already had been filled by
another company, hired by the new owner. Was the oil distributor liable?
(1) Yes, mistakes do not negate liability.
b) Hypo: Defendant cuts and removes timber from plaintiffs land under a
reasonable belief that it was on his own land. Is he liable?
(1) Yes, mistakes do not negate liability.
(2) Arbitration is not consistent with fault rule so may have different result.
2. Reasonable mistake is not a defense to trespass. Intended to set foot on the ground:
this is a chip in the fault principle.
3. When looking at good faith there is a limited number of people who can actually make
mistakes with good faith.
C. Insanity/mental instability does not negate liability
1. McGuire v. Almy: Insane woman attacked her caretaker while having an insane episode.
Insane woman was liable for the battery committed on her caretaker even though she
was insane. (NOT LOOKING AT SUBJECTIVITY IN THIS CASE)
2. Wagner v. State: Mrs. Wagner was in line at K-Mart when a mentally disabled patient
grabbed her and threw her down. Was a tort and state had immunity so case dismissed.
a) Rule - it was enough to establish intent even if the individual committing the tort
fails a subjective test - (they dont intend to inflict a harm or offensive bodily
contact). NOT LOOKING AT SUBJECTIVITY. THIS IS NOT THE NORM.
Reasoning based off of objective as opposed to the subjective.
(1) Sovereign immunity of the state: state and officials are immune to tort
liability in the majority of the states.
3. Exception: several jurisdictions have carved out a narrow exception to the general rule,
holding that an institutionalized mentally disabled patient who cannot control or
appreciate the consequences of his conduct cannot be held liable for injuries caused to
those employed to care for the patient.
D. Transferred Intent: was derived originally from the criminal law and dates back to the time when
tort damages were awarded as a side issue in criminal prosecutions.
1. Objective test: What would have been the result if the action would have gone as
intended?
2. Transferred person intent: same tort transferred from one person to another. Intent is
transferred between potential recipients
a) Hypo: thus the defendant is liable when he shoots to frighten A (assault) and the
bullet unforeseeably hits a stranger B (battery).
3. Transferred tort intent: occurs when a plaintiff intends to commit a tort against one
person and ends up committing a different tort against the same person.
4. Doctrine of transferred intent applies to battery, assault, false imprisonment, trespass to
land, trespass to chattels.
5. Talmage v. Smith
a) Defendant found boys playing on top of sheds on his property. Plaintiff threw a
stick at one boy intending to scare him away. There was another boy on the roof
that was hit in the eye by the stick and lost his eye. This case stands for both
types of transferred intent. The defendant was intending to commit an assault
against one boy and ended up committing a battery against another. The intent
for both the act and the person can transfer. Talmage Wins.
(1) Hypo:
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III.
(a) If he threw the stick trying to the care the boy would he be liable?
(i)
No, because you have a right to defend your property.
There would be no intentious tort to transfer.
Intentional Torts (Dignitary Torts)
A. Battery
1. Elements
a) Intent to cause harmful or offensive contact
b) Acts in a way that will cause harmful or offensive contact
(1) Harmful or offensive contact: (Restatement Second of Torts)
(a) 13: Battery: Harmful Contact
(i)
An actor is subject to liability to another for battery if
(a) He acts intending to cause a harmful or offensive
contact with the person of the other or a third
person, or an imminent apprehension of such a
contact, and
(b) A harmful contact with the person of the other
directly or indirectly results.
(i)
Hypo: One schoolboy, during a class hour,
playfully kicked another on the shin. He
intended no harm, and the touch was so
slight that the plaintiff did not actually feel it.
However the effect was restarting an
infection in the leg of a previous injury.
Plaintiff suffered damages from the jury to
be $2,500. Is this a battery?
(ii)
Yes; Even though the injury could not have
been foreseen.
(b) 18 Battery Offensive Contact
(i)
An actor is subject to liability to another for battery if
(a) He acts intending to cause a harmful or offensive
contact with the person of the other or a third
person, or an imminent apprehension of such a
contact, and
(b) An offensive contact with the person of the other
directly or indirectly results.
(ii)
An act which is not done with the intention stated in
subsection 1a does not make the actor liable to the other
for a mere offensive contact with the others person
although the act involves an unreasonable risk of inflicting
it and, therefore, would be negligent or reckless if the risk
threatened bodily harm.
c) The harmful or offensive contact does occur.
(1) Result Standard: to be an actionable offensive battery the contact has to
be one that would be offensive to a reasonable person of ordinary
sensitivities. (previously have been looking at the intent standard)
(a) Hypo: Plaintiff fell at a skating rink and broke her arm. Over the
protests of plaintiff and her husband, defendants employees, one
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of whom was a prize fight manager who had first aid experience,
proceeded to manipulate the arm in an attempt to set it. Is this
battery?
(i)
Yes. The pain caused by the manager would be harmful or
offensive to a reasonable person of ordinary sensitivities
2. Cases
a) Cole v. Turner
(1) Any touching in anger is a battery. Bumping someone while walking down
a narrow passage is not a battery. Roughing someone up in a narrow
passage is a battery. - The contact must be harmful or offensive.
b) Wallace v. Rosen
(1) Teacher pushed parent down the stairs during fire drill. Crowded world
doctrine. We live in a crowded world and should expect a reasonable
amount of touching and bumping. The court ruled the the teacher
directing the parent down the stairs during the fire drill was a reasonable
amount of contact and did not constitute a battery. Rosen Wins.
(a) Concurring opinion notes that there was testimony that the teacher
had grabbed plaintiffs arm or shoulder to turn her around and
responded to the parent I dont care who you are, move it.
(b) Battery cannot be negligent.
(i)
Hypo: when defendant negligently, or even recklessly,
drives his car into plaintiff and injures him, without
intending to hit him. Is this a battery?
(a) Not a battery
3. Additional Rules
a) When defendant intentionally causes plaintiff to undergo an offensive contact and
the resulting injuries are more extensive than a reasonable person might have
anticipated, the defendant will still be liable for those injuries.
b) Extended Person Rule: F
isher v. Carrousel Motor Hotel, Inc.
(1) Black man was attending a conference at the hotel that had food. An
employee of the hotel snatched the plate from his hand and shouted that
a negro could not be served there. Court found that it was a battery, This
stands for the intimately connected rule. The rule is that a person may
perform a harmful contact to you, or something intimately connected to
you. The line is somewhere between a plate and a car. Fisher Wins.
(a) Hypo:
(i)
What if the plate had been snatched without a racial
epithet? Would this have been a battery?
(a) Yes.
(ii)
What if he only made the racial epithet? Would this have
been a battery?
(a) No.
(iii)
What if the doorman at the hotel shouted a racial epithet
and kicked plaintiffs car when he was about to leave?
Would that be a battery?
(a) No. Car extends too far.
c) Dignitary Tort
7

(1) no physical harm required, but involves the right to protect bodily
autonomy (especially when there is no present awareness
(2) Battery doesnt require present awareness of the tort (but assault does). It
is enough to find out about the tort later
(a) Hypo: One Student is studying and one kissed the other while
sleeping. Was a battery committed?
(i)
Harm is an affront to dignity. Yes, it is still a battery even
though she didn't find out about the action later.
B. Assault
1. Elements
a) Intent to cause imminent apprehension of a harmful or offensive contact
(1) Words alone can never constitute an assault
(2) Words can negate an assault.
b) Volitional act to cause imminent apprehension of a harmful or offensive contact
c) Imminent Apprehension of harmful or offensive contact occurs
(1) Imminent: no significant delay of harmful or offensive contact occurring.
(a) Future threats do not qualify as an assault.
(b) Conditional present threats, when combined w/ threatening
gesture, can constitute an assault.
(c) Plaintiff has to be presently aware of the assault.
(2) Apprehension
(a) Fear IS NOT apprehension.
2. Cases:
a) I de S et ex v. W de S
(1) Defendant wanted some wine from the plaintiffs house. He started
pounding on the door with his hatchet. The plaintiffs wife stuck her head
and almost got hit by the hatchet. I de S wins.
(a) Plaintiff was in imminent apprehension of getting hit. This case is
one of the first instances of the tort of assault.
b) Western Union Telegraph Co. v. Hill
(1) Creepy guy that fixes clocks tried to pet the woman that came to get her
clock fixed. Guy was too short to reach over the counter, but the lady
didnt know that. Hill Wins.
(a) RULE: D
efendant must have apparent ability to commit assault,
but not the actual ability.
(b) RULE: i t does not matter if the harmful or offensive contact could
have occurred, it only matters if the plaintiff was in imminent
apprehension of harmful or offensive contact.
(c) RULE CORRECTION FROM CASE: Not every battery includes an
assault
(i)
someone can hit someone in the back of the head without
them knowing. This lacks apprehension.
(2) Hypo: If the company knew he was committing these actions, would the
company be liable for his actions?
(a) No, generally the company would just be liable for a separate tort
of negligence.
3. Hypos
8

a) At a party, B points a gun to As head. But when A looks B hides the gun. Did an
assault occur?
(1) No. Not aware and therefore not in imminent apprehension.
(2) If B tells A later about pointing a gun to his head did an assault occur?
(a) No, there was no imminent apprehension at the time of the
incident.
b) Blonder Story
(1) Blonder threatens McClurg to beat him up over the phone. Is this an
assault?
(a) No, it is not imminent.
(2) Blonder then proceeds to run over to McClurgs house. Is this an
assault?
(a) No, still not imminent.
(3) Blonder starts knocking on the door. Is this an assault?
(a) No, still not imminent.
(4) Blonder has books in hands and backpack in the other and says, Im
going to punch you. Is this an assault?
(a) No still not an assault.
(5) Blonder puts books down and keeps his hands at his side.
(a) No still not an assault.
(6) If Blonder balls his hands into a fist.
(a) Now it would be considered an assault.
c) 100 lb kid threatened to punch Shaq
(1) Yes, its assault, actual ability to cause harm does not matter, just the
apparent ability to cause imminent apprehension of harmful or offensive
contact.
d) Defendant is a KKK member dressed in robes and carrying a gun. He goes
around in a shrimp boat from dock to dock to frighten Vietnamese fishermen and
their families. Would the family members have an assault case?
(1) Have to be able to prove that there was some harm done in order to
establish an assault.
C. False Imprisonment
1. Elements
a) Intent to unlawfully confine.
b) Volitional act
c) An unlawful confinement must result
d) The victim must be conscious of the confinement at the time
2. Confinement
a) Complete physical barriers
(1) Any area where the freedom of movement is limited in all directions
(a) Bounded by verbal terms
(b) Bounded by physical parameters
(2) Key Issue- area is not bounded if there is a known and reasonable means
of escape
(3) If there is a hidden way out- it as if it doesnt exist
b) Force or threat of force (even an implicit threat)
(1) The amount of force is irrelevant
9

(a) Hypo: weakling tries to detain Shaq
(i)
No false imprisonment if Shaq doesn't submit
(ii)
If Shaq submits, then false imprisonment
c) Asserted legal authority
3. Reasonableness of Escape
a) Plaintiff cannot be expected to put in danger any of the following:
(1) Person
(2) Property
(3) Dignity (if naked, cant be expected to escape)
4. Cases:
a) Big Town Nursing Home, Inc. v. Newman
(1) Plaintiff was an old man that was check into a nursing home by his
nephew. After several days in the nursing home he wanted to leave. The
employees of the nursing home did not let him leave and put him in the
insane ward. The court ruled that the plaintiff had been falsely imprisoned.
Newman wins.
(a) RULE: False imprisonment is the direct restraint of one person of
the physical liberty of another without adequate legal justification
b) Parvi v. City of Kingston
(1) Two men were fighting in an alley. A third man was drunk and trying to
calm them down. The third man told the police that he had nowhere to go
so they took him to an abandoned golf course to sober up. The man
wandered from the golf course to the highway and was hit by a car. The
man remembers nothing from the night. While the man remembers
nothing from the night, he was aware that he was in the officers car that
night. Parvi Wins.
(a) RULE: For false imprisonment, a person must be aware of the
false imprisonment at the time of imprisonment. It does not matter
that the plaintiff did not remember it.
c) Hardy v. Labelles Distributing Co.
(1) Hardy was a temporary employee of the defendant. She was accused of
stealing a watch by another employee. She was asked to come to the
managers office where she was met by policemen. They said she was
accused of stealing a watch. She denied stealing the watch and agreed to
take a polygraph test. Hardy took the test which supported her innocence.
Hardy did not want to leave. She wanted to clear her name. Labelles
wins.
(a) RULE: False imprisonment requires that the plaintiff be detained
against her will. Hardy wanted to stay and never asked to leave.
(b) Hypo: An employee is suspected of stealing property from her
employer and is told a trip to her home is necessary to recover the
property. If the employee feels mentally compelled for fear of
losing her to to go in an automobile with her supervisor to her
home, has she been confined involuntarily?
(i)
Fear of losing ones job is a powerful incentive, but it does
not render behavior involuntary.
d) Enright v. Groves
10

(1) Defendant is a policy officer. There was a dog out without a leash. The
officer sent the dog inside with a boy that was in the yard. The mother
was in a car in the driveway. She refused to tell the officer who she was
or show him her id. The officer arrested her for not cooperating with him.
The court ruled that the officer arrested Enright for not cooperating and
not for violating the dog leash rule. This was ruled as false imprisonment.
Enright Wins.
(a) RULE: False arrest arises when one is taken into custody by a
person who claims but does not have proper legal authority.
(b) If there had been a law regarding this action from the officer it
would have been a complete defense.
(c) Hypo: Plaintiff, alighting from defendants train, fell and broke his
leg. Defendants conductor told plaintiff that the law required him
to remain and fill out a statement about the accident. Plaintiff did
so, and his cab was held for fifteen or twenty minutes, during
which plaintiff was in considerable pain, while the statement was
filled out and signed. Was this false imprisonment?
(i)
Yes it was, doesnt have to be an officer, can be a person
in authority.
5. Hypos:
a) McClurg walks into the room and as he is walking into the classroom locks the
door without notice from the students. Is this false imprisonment?
(1) No, students have to be aware that they were imprisoned.
b) McClurg after locking the door teaches class for 5 minutes then proceeds to go
unlock the door. The students know that they were locked in the room. Is this
false imprisonment?
(1) No, students were not aware of being imprisoned at the time of
imprisonment.
c) McClurg locks the door and a student gets up to visit the restroom. But the door
is locked. Is this false imprisonment?
(1) Yes, for the whole group so long as each individual is aware that they are
being falsely imprisoned
d) McClurg locks one door but a second door to the classroom remains unlocked.
Students know that he has locked the one door.
(1) No, confinement must result. No actual confinement.
e) McClurg locks the door and everyone in the room knows the door is locked.
There is only one known door but a secret hidden door is in the room. Is this
false imprisonment?
(1) Yes, hidden confinement that is unknown is as if it doesnt exist.
f) McClurg locks the door and everyone knows the room is locked. The only way
out is a window on the 4th floor. Is this a case of false imprisonment?
(1) Yes, it is not expected for an individual to climb out the window and hurt
themselves in attempting to escape.
g) Plaintiff has a ticket to enter defendants race track, but defendant refuses to
admit him because the stewards have banned him from the track. Is this false
imprisonment?
(1) No, mere refusal to admit someone is not false imprisonment.
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6. Notes
a) Exclusion that is based on race or religion may be civil rights actions but are not
false imprisonment.
D. Intentional Infliction of Emotional Distress
1. Elements:
a) 1. Act: Extreme and Outrageous Conduct
b) 2. Intent: Intentionally (subj. std) or recklessly (obj. std.) cause...
c) 3. Result: Severe emotional distress (phys injury not req'd)
d) PLAINTIFF MUST PROVE DAMAGES, NO NOMINALS
2. Extreme and Outrageous Conduct
a) Serious threats of physical harm
b) Mere insults not sufficient
(1) Tortman quote: Mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities do not qualify for extreme and outrageous
conduct under IIED.
c) Repetitive is outrageous
d) Abuse of authority against a person in a vulnerable position can convert conduct
to this level
(1) Authority of defendant can be presumed authority
e) Exploiting a persons known sensitivities
3. Outrageous Conduct Causing Severe Emotional Distress (R2T, 46)
a) (1) One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.
b) (2) Where such conduct is directed at a third person, the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress
(1) (a) to a member such persons immediate family who is present at the
time, whether or not such distress results in bodily harm, OR
(2) (b) to any such person who is present at the time, if such distress results
in bodily harm.
4. Cases
a) State Rubbish Collectors Association v. Siliznoff
(1) Siliznoff collected trash from the Acme brewing company. The rubbish
collectors association believed this was in the territory of one of its
members. Siliznoff was not a member of their association. The
association called for Siliznoff to stand before their board. He was forced
to come under threat of bodily harm and harm to his truck. They
threatened to put him out of business by force. Siliznoff became
physically ill over the threats to his life and livelihood. Siliznoff went to the
meeting and was held there until he agreed to sign notes in the morning
promising to join the association and pay the money owed to their
member. Siliznoff did not pay the money. Didnt sue for IIED because it
didnt exist. (DRAMATIC EXTENSION OF CIVIL LAW).
(a) Policy: The laws around assault were enacted to protect the
emotional and mental well-being of the public. The Restatement of
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torts stated that a person could be subject to mental or emotional
distress to the point of becoming physically ill or harmed.
(b) Notes: Section 46 of this restatement was later amended to say
that one who causes severe emotional distress to another is liable
for the emotional distress and any bodily harm that may come as a
result of it. First instance of IIED. Siliznoff wins. (Fear of flooding
litigation)
b) Slocum v. Food Fair Stores of Florida
(1) The plaintiff was shopping in one of the defendants stores. The plaintiff
asked an employee the price of something. The employee told her she
would have to figure out as best as she could and that she smelled bad to
him. She had a heart attack which was a result of her heart condition.
Defendant Wins. Insults are not IIED.
(a) RULE: Insults or profane language will not qualify as extreme or
outrageous conduct.
c) Harris v. Jones
(1) The plaintiff is a 26-year-old employee of GM. He worked for the
defendant for 5 months and for GM for 8 years. The plaintiff had a speech
impediment which was manifested as a stutter. The defendant would
often mimic and make fun of the plaintiffs stutter. This allegedly caused
the plaintiff severe emotional distress. The plaintiff already suffered from
nervousness and anxiety. He was already seeing a doctor for his
condition. The plaintiff saw a doctor while he worked for the defendant
and the doctor prescribed him pills for his nervousness. The plaintiff
asked for a transfer and the defendant mimicked his stutter and called
him a troublemaker that complained too much. The plaintiff has a history
of suspension and struggling in employment. Jones wins. Not all of the
elements of IIED were met.
(2) Four elements of IIED outlined in this case. See Above. There is a rule
given for judging whether conduct is outrageous or extreme
(a) DEFINITION/RULE FOR EXTREME: Liability has been found only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community
(b) FOOTNOTE: Harris may have had some pre-existing susceptibility
to emotional distress does not necessarily preclude liability if it can
be shown that the conduct intensified the pre-existing condition of
psychological stress.
d) Conduct exceeding all bounds is usually tolerated by decent society.
(1) For example it is generally held that the mere solicitation of a woman to
illicit intercourse is not only not an assault but does not give rise to any
other cause of action.
(2) Repetition allows what is not considered outrageous to be outrageous
after continual persistence by offender.
(a) Samms v. Eccles: utah, a married woman was hounded by
continued telephone calls from May to December, some of them
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late at night; and on one occasion defendant came to her home
and made an indecent exposure of his person. Court stated under
usual circumstances solicitation would not be actionable, but the
aggravated circumstances in this case sufficient to make the
defendant liable.
(b) Flamm v. Van Nierop: defendant constantly drove behind plaintiff
at a dangerously close distance, phoned him unncessarily at his
home and business and either hung up or remained on the line in
silence, and dashed at him in public places.
(c) Ford v. Revlon, Inc.: employer liable for intentional infliction of
emotional distress of plaintiff due to co-employees actions in
repeatedly subjecting plaintiff to physical assaults and vulgar
remarks.
(3) Authority figure exercising dominance over subordinate individual.
(Power imbalance)
(a) Defendant, a private detective representing that he was a police
officer, threatened to charge the plaintiff, a resident alien, with
espionage unless she turned over to him certain private letters in
her possession. She suffered severe mental disturbance and was
made seriously ill. The defendant was held liable.
(b) Defendants, school authorities, called a high school girl to the
school office and bullied and badgered her for a considerable
length of time, threatening her with prison and with public disgrace
for herself and her family, unless she confessed to immoral
conduct with various men. They succeeded in extorting from her a
confession of misconduct, of which she was innocent. She
suffered severe mental disturbance and resulting illness.
Defendants were held liable.
5. Extreme and Outrageous conduct themes:
a) Serious threats of physical harm (Siliznoff).
b) Mere insults NOT sufficient to be extreme and outrageous.
c) Repetitive could elevate act, not considered extreme level of being Extreme and
Offensive can be raised to be extreme.
d) Abuse of authority against person in subordinate or vulnerable position to level of
being Extreme and Outrageous.
6. Notes:
a) Not just about the facts but you have to prove the facts.
(1) Prove with:
(a) Expert witness
(b) Plaintiff testimony
(i)
Consider persons attractiveness, race, likeability all
influence the results.
(c) Family members or observers who witnessed declines
(2) Intangible injury so it is hard to prove.
(3) Physical manifestations are not required but help bolster case.
7. Hypos
14

a) Joker calls mother and says, your daughter is in a terrible accident, she is not
going to live, and you need to get to this particular spot immediately. Would jury
give her damages?
(1) Yes they would. Would look at conduct without actually going by law
because it is a jury.
b) If A kills B in front of C. B is husband and C is the wife. C might have a claim
against A for IIED. For intentionally or recklessly causing harm to C.
(1) If C wasnt present but comes up to B in a pool of blood could she make a
claim?
(a) No. Wasnt present at time according to pg 16 restatement
second of torts.
(i)
There is a line to limit excessive litigation but also adds
predictability and consistency.
c) Must have sufficient evidence to even go to the jury to qualify.
E. Trespass to Land
1. Elements
a) Volitional Act
b) Intent to enter property in possession of another
c) Result in entry of the property
(1) Entry must be done by a tangible mass
2. Policy: protects right to exclusive possession of land. Extended liability covers damages
resulting from trespass
3. Cases
a) Dougherty v. Stepp
(1) The defendant brought a survey crew onto the land of the plaintiff
claiming the land was his. He did not damage any property or cut any
trees or bushes. Dougherty Wins.
(a) RULE: Every unauthorized and therefore unlawful entry into the
land of another is a trespass. Trespass does not require damage
to be done to the property, it only require unlawful entry.
b) Herrin v. Sutherland
(1) Defendant was out hunting ducks and other migratory game birds. He
fired at birds that were flying over the plaintiffs land. The shots disturbed
the plaintiffs peace and quiet. Herrin wins
(a) RULE: Land in its legal significance has an indefinite extent,
upwards as well as downwards. Whoever owns the land
possesses all the space upwards to an indefinite extent; such is
the maxim of the law.
(2) Notes:
(a) During a dispute between neighbors over a backyard fence, one of
them extends her arm over the fence, without touching it. Is this
considered a trespass?
(i)
Yes
(b) Air travel is a trespass only if it enters into immediate reaches of
the air space next to the land, and interferes substantially with
the others use and enjoyment of the land. R2T section 159
15

(c) The interest in the possession of land also extends below the
surface, and may present similar problems and similar limitations.
(i)
Edwards v. Stims: plaintiff discovered that the cave that
defendant had developed, advertised, and turned into a
tourist attraction ran a considerable distance under
plaintiffs land. Plaintiff sought to compel a survey of the
cave, an injunction to stop the trespasses of the tourists,
and an accounting for a portion of defendants profits. The
owner of the land is entitled to the land above and below
that line all the way to the center of the earth. Dissent
said it shouldnt extend this far.
(ii)
Sewer line at depth of 150 ft not trespass because beyond
where owner could reasonably use land.
c) Rogers v. Board of Road Commissioners for Kent County
(1) The plaintiff and her dead husband owned a farm. There was a road at
the back of the farm. During the winter the defendant would put up a snow
fence at the back of the plaintiffs property with the plaintiffs permission.
The stipulation was that the defendant would remove all of the fence and
steel anchors once it was no longer necessary for the fence to be up. The
fence was put up in a place which was a meadow where the grass would
grow tall. The defendant left a steel anchor in the ground. The plaintiffs
husband was out mowing the field using a mowing machine and a tractor.
The man hit the anchor and was thrown from the tractor onto the wheels
of the machine and the ground. This resulted in his death. Rogers wins
(a) RULE: The Restatement of Torts 160: A trespass, actionable
under the rule stated in 158, may be committed by the continued
presence on the land of a structure, chattel, or other thing which
the actor or his predecessor in legal interest therein has placed
thereon
(i)
With the consent of the person then in possession of the
land, if the actor fails to remove it after the consent has
been effectively terminated, or
(ii)
Pursuant to a privilege conferred on the actor irrespective
of the possessors consent, if the actor fails to remove it
after the privilege has been terminated, by the
accomplishment of its purpose or otherwise.
(b) Trespass can occur if persisting person or object stays after
permission is terminated. Even if originally having permission to
be there before. Extended liability for the death. (trespass
extends liability).
(c) Plaintiffs, husband and wife, arrived home to find a parked car
blocking their driveway. Defendants, neighbors of the plaintiffs,
were loading the trunk with tools that they had just used to dig a
trench across plaintiffs driveway. Defendants and plaintiffs
argued about the trench. Plaintiff went inside. Came back out
three minutes later and found husband dead from a heart attack.
Can the trespasser be held liable?
16

(i)
Yes, damages caused by a trespasser need not be

foreseeable to be compensable. (compensation can be
obtained).
F. Trespass to Chattels
1. Elements
a) 1. Act: volitional act (decision was made)
b) 2. Intent: interfere w/ chattel in the possession of another
c) 3. Result: chattel is impaired to its condition, quality, or value O
R possessor is
deprived of the use of the chattel for a substantial time O
R bodily harm caused to
the owner.
2. Cases
a) Glidden v. Szybiak
(1) Four-year-old girl left her home to go buy some candy from the store. She
found a dog on the porch of the store and mounted it and pulled up on its
ears. The dog bit her on the nose. Her injuries required treatment from
two doctors and are no longer noticeable except up close. Glidden wins
because defendant could not prove the elements of trespass to chattels.
(a) RULE: R2T 218 One who without consensual or other privilege to
do so, uses or otherwise intentionally intermeddles with a chattel
which is in possession of another is liable for a trespass to such a
person if:
(i)
The chattel is impaired as to its condition, quality, or value,
or
(ii)
The possessor is deprived of the use of the chattel for a
substantial time, or
(iii)
Bodily harm is thereby caused to the possessor or harm is
caused to some person or thing in which the possessor
has a legally protected interest.
(2) Note: Unlike trespass to land, trespass to chattels does not entitle one to
nominal damages. Some sort of damage must result from the
interference because sufficient legal protection of the inviolability of
possession of a chattel is found in the privilege to use reasonable force to
maintain possession.
(3) Note: One who non-consensually uses or interferes with a chattel of
another is guilty of trespass if the chattel is damaged, the possessor is
deprived of use for a substantial time, or bodily harm is caused by the
interference.
G. Conversion
1. Elements
a) Act: volitional act (decision was made)
b) Intent: to exercise dominion or control over the chattel of another
c) Result: interference results so seriously with the right of another to control it that
the actor may justly be required to pay the other the full value of the chattel.
2. Cases
a) Pearson v. Dodd
(1) The plaintiff is a US Senator. Several times in the summer of 1965, two
former employees of the plaintiff at times with assistance from members
17

of the plaintiffs staff, went into the plaintiffs office and took documents
from his office. They made copies of the documents and then put them
back. The documents were then given to the defendants. The defendant
then published articles with information from these articles. Defendants
win because the documents were always available for the plaintiff to use
and the value of them was not decreased if their value is determined by
useability. The plaintiff was not deprived of his opportunity to use them.
The information contained on the documents was not proprietary secrets
nor literary property or scientific invention.
(a) RULE: Conversion is an intentional exercise of dominion or control
over a chattel which is so seriously interferes with the right of
another to control it that the actor may justly be required to pay the
other the full value of the chattel. Restatement Second of Torts.
(b) Restatement would argue this courts decision was wrong. They
were stolen and therefore should have been ruled a conversion.
(i)
Two main issues
(a) Conversion of papers
(b) Conversion of contents- court rules that the content
in order to be converted, the documents would
have to have property like value. This case did not
meet this.
b) Hypo: Is an Internet domain name a form of intangible property that can be
converted?
(1) According to California law, found the plaintiffs complaint stated a cause
of action for conversion of the domain name sex.com.
3. Conversion Multi-factor Test
a) Conduct
(1) extent and duration of the exercise of dominion or control
(2) the actor's intent to assert a right in fact inconsistent with the other's right
of control
(3) the actor's good faith
b) Consequence
(1) the extent and duration of the resulting interference with the other's right
of control
(2) the harm done to the chattel
(3) the inconvenience and expense caused to the other
c) If either set of factors is satisfied, conversion occurs.
4. Additional Rules
a) Conversion causes a forced sale of the chattel
b) If someone tries to steal chattel of another, that's conversion
c) Intangible Property can be converted
SUPPLEMENTAL RULES FOR INTENTIONAL TORTS:
Respondeat Superior: A legal doctrine, most commonly used in tort, that holds an employer or
principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope
of the employment or agency.
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IV.
Defenses to Intentional Torts

A. Consent
1. Rules
a) Would a reasonable person believe it was consent.
b) Consent given under duress is invalid
c) Consent given while intoxicated or mentally ill isn't valid.
d) May be implied or given by silence.
e) If consent is given to the volitional act, consent is given to the result, no matter
how crazy.
f) If a person acts pursuant to consent, no tortious intent can be found. Consent
negates tortious intent.
g) Consent is only valid if the actions taken fall with the scope of the actual consent
given.
h) Consent based upon fraud is invalid. Omission if fraud.
i) Action taken must be within the scope of the consent
2. Cases
a) OBrien v. Cunard S.S. Co.
(1) Immigrant woman was given a vaccination by the ships doctor. She got in
line for vaccinations and held her arm out for the shot even though she
said she already had the shot. The injection site became infected and she
sued them for battery. The court ruled that she consented to the contact.
Defendant wins
(a) RULE: If the plaintiffs behavior was such as to indicate consent
on her part, he was justified in his act, whatever her unexpressed
feelings may have been. In determining whether she consented,
he could be guided only by her overt acts and the manifestations
of her feelings.
(2) Evaluating consent is an objective standard.
(3) Hypo: Suppose that in the course of an argument defendant announces
that he is going to punch plaintiff in the nose. Plaintiff stands his ground
but says and does nothing, and defendant punches him. Is there
consent?
(a) No. Pure silence CANNOT be consent for this class.
(i)
Silence can be a factor.
b) Hackbart v. Cincinnati Bengals, Inc.
(1) Dale Hackbart, a defensive back for the Denver Broncos, was playing
against the Cincinnati Bengals. The offensive back for the Bengals,
Charles Booby Clark, struck the plaintiff in the back of his head causing
him to fall to the ground. Clark admits that his action was out of frustration
and he intended to make the contact. The hit took place after the play had
stopped and the ball changed hands. Both players got up and went to
their sidelines. No foul was called on the play by the referees. The action
was not part of the game. There was possibly something done wrong.
The plaintiff deserved to have his case heard to decide if his rights had
been violated. Hackbart wins
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(a) RULE: Contact that was a part of the game would have been
consented to, however, this was a foul outside of the structure of
play.
(b) Intent was easy to prove as it was after the play.
3. CONSENT ONLY HYPOS:
a) A woman consents to sex with a man who says that he cannot get her pregnant.
He knows that isnt true. She gets pregnant and has complications which leave
her sterile. The man is liable.
4. Medical Consent
a) Elements - Medical care providers may act in the absence of express consent if:
(1) the patient is unable to give consent (unconscious, intoxicated, mentally
ill, incompetent);
(2) there is a risk of serious bodily harm if treatment is delayed;
(3) a reasonable person would consent to treatment under the
circumstances; A
ND
(4) the physician has no reason to believe this patient would refuse treatment
under the circumstances.
b) Clarifications
(1) Even if the treatment is to save the life of the patient, the doctor must get
consent if there is time to do so. If there is no time then even if someone
who can give consent is on site, then they do not need to consent.
(2) Not giving consent can prevent medical treatment. Example is
construction worker saw 666 on his hand so he cut it off. The man was
taken with his hand to a hospital where a hand surgeon was prepared to
attach the hand. The man refused treatment saying it was against his
religion. Doctor agreed to not attach the hand and was not held liable.
(3) Consent can specify what can be done by a doctor.
(a) Plaintiff may request that her own physician be present.
(b) Plaintiff may limit the scope of the surgery to an incision and
exploration instead even if the surgeon finds a tumor in the
abdomen.
(c) Plaintiff can limit who can see her in the operating room. If a
plaintiff asks that no male see her naked during the procedure,
then that must be respected.
(d) Plaintiffs can limit the consent to certain drugs.
(e) Patient can withdraw consent if stopping the procedure is feasible.
(f) Patient can limit consent to only certain doctors that may perform
the procedure.
(g) If any of these are violated then it is a battery.
(4) In the case of a minor child, it does not matter if the child consents, it is
the consent of the parent that matters
c) Cases
(1) Mohr v. Williams
(a) The plaintiff went into the defendants office to have her ears
examined. The defendant found a problem with the plaintiffs right
ear and scheduled a surgery. After the patient was under
anesthetic, the defendant decided that the plaintiff did not need
20

the surgery on the right ear, but did have an issue with her left ear
that needed surgery. The defendant then performed the surgery. It
was successful. The court rules that she did not consent, but there
may be argument as to whether or not the defendant committed a
battery. They also say that the damages must be assessed
differently. Scope of Consent.
(i)
RULE: Ordinarily the plaintiff must be consulted and his
consent given before a surgeon operate on him.
(ii)
POLICY/RULE: Surgeons may operate without consent if it
is a life threatening situation especially if they find the
person unconscious. This includes finding life-threatening
conditions while performing a different surgery.
(iii)
Note: An operation that is performed without the consent of
the patient is wrongful unless the circumstances were such
as to justify its performance without it. If the operation is
wrongful it is unlawful. Emphasis made that the operation
was wrong surgically. The operation was performed
correctly in this case.
(a) Case is still sound law.
(b) Specific to condition before consent:
(i)
Case: Cohen v. Smith: violation of plaintiffs right to bodily
integrity by unconsented to touching is the essence of
battery. Plaintiff won.
(ii)
Case: Duncan v. Scottsdale Med. Imaging Ltd.: rejecting
argument that the plaintiff consented to the administration
of pain medication and therefore the nature of the
procedure was the same no matter which drug was used.
Plaintiff won.
(c) Case regarding minor child, consent of the parent is necessary for
any medical procedure.
(i)
Situations such as tonsillectomy or a skingraft.
(ii)
A minor of 17 or 18 has been held capable of legally
consenting to at least minor procedures (smallpox
vaccination), but not to major ones (nose job).
(d) Hypo: If the plaintiff had remained conscious, had he insisted on
prohibiting the operation, saying that he would rather die than lose
his foot. Has he given consent?
(i)
No, adults have the right to refuse treatment.
(e) Hypo: Construction worker, believing that he saw 666, the sign of
the devil on his hand cut it off with a power saw. His coworkers
rushed him and his hand to the hospital. Surgeon waited to attach
hand. What should the surgeon do?
(i)
Nothing, he is not given consent. Adults have the right to
refuse treatment.
(2) De May v. Roberts
(a) The plaintiff was pregnant in her bed and was with child. She
began the pains of childbirth and they sent for the doctor, De May.
21

It was a stormy night and the doctor was ill from being overworked
so the defendant brought a young single friend with him. This was
Scattergood. They arrived at the plaintiffs home and her husband
answered the door and let them in. They went up to the room
where the plaintiff was lying in bed. Mr. Scattergoods position as
a layman was not told to the plaintiff and she assumed him to be a
physician as well. De May instructed Scattergood to hold the
plaintiffs hand during a moment of pain and Scattergood did so.
The defendants feel that they acted in a proper way. The fact that
the plaintiff consented to Scattergood assuming he was a doctor
does not preclude her from an action once she became aware that
he was not. This was a very private moment and the plaintiff was
entitled to privacy and to have whoever she wanted in the room at
the time. She is allowed to recover for the shame which may have
resulted upon discovering that the defendant was not a doctor and
had been in her room of lying. Plaintiff wins
(i)
RULE: Consent based upon fraud or omission is invalid.
The omission of De May to disclose that Scattergood was
not a doctor negated the consent.
(b) Hypo: A consents to sex with B. B has a venereal disease. B does
not tell A, but knows about the disease. Has B received consent
from A?
(i)
No. In order for consent to be valid it needs to be
informed.
(c) If B does not know, then will he be responsible for a battery?.
(i)
No, if B doesnt know about his own disease he can not be
held responsible for what he doesnt know.
(3) Neal v. Neal: Plaintiffs battery claim should have gone to the jury on the
issue of consent even though defendant husband proved that she also
had consented to sexual intercourse after she learned of the affair.
B. Self Defense: is a privilege
1. Privilege: admit guilt to a tort but defense to do action that would have been a tort and
makes the defendant not liable. Defendant has to prove all aspects of the privilege.
2. Rules
a) Self defense can be used when you have a reasonable belief that you're in
danger and force is necessary.
(1) Reasonability is judged by the facts.
(2) Also allows for leeway for reasonable mistakes.
b) Amount of force must be reasonable and proportional
(1) Deadly force (force likely to cause death or serious bodily injury) can only
be used if the threat could cause death or serious bodily injury.
(2) Hypo: Walking at night in a dangerous part of town. Comes up behind
and grabs shoulders. Turns around and chops friend in neck. Found out
it was the best friend. Friend sues.
(a) Would need to point out all the facts.
(i)
Late at night
(ii)
Grabbed from behind
22

(iii)
Dangerous part of town
(iv)
Alone
(b) Reasonable person would assume in danger
(c) Proportionality rule of REASONABLE BELIEF. But you can
threaten more force than what could be used.
(d) Deadly force used- force likely to cause death or serious bodily
injury
(i)
Not reasonable
(ii)
Deadly force is just that you can be seriously harmed. Not
implausible
(iii)
You can use deadly force when you REASONABLY
BELIEVE you are THREATENED WITH DEADLY FORCE.
c) SOME JURISDICTIONS: Duty to retreat only if you know if you can retreat safely
(1) These laws are being abolished by stand your ground laws.
3. Transferred Intent/defense principle
a) Hypo: If A points gun at B, and B, in self defense, points gun at A and shoots C,
then transferred defense
4. Summary
a) Existence of a privilege - Anyone is privileged to use reasonable force to defend
himself against a threatened battery on the part of another.
b) Retaliation - The privilege of self-defense does not cover retaliation. Once the
threat has ceased then the privilege is gone as well.
(1) Hypo: if you get hit in the head by a bat and person runs off. Can you
pick up the bat and run after the guy and hit him?
(a) No this is retaliation and cant use it as a defense.
c) Reasonable Belief - The privilege exists only when the defendant reasonably
believes that the force he uses is necessary to protect himself against the
battery, even if there was no actual risk. A reasonable mistake on the part of the
actor can protect him.
(1) The plaintiff and defendant were on bad terms. They met in the street and
had an argument. The plaintiff had a reputation for shooting people and
reached into his coat. The defendant knocked him out with a cane. The
court ruled that the jury should have been instructed the the defendant
may have had a privilege because he reasonably believed that the
plaintiff had a gun.
(2) Defendant through a drunk man out of a dance who had not paid his
admission fee. Defendant was then informed that the drunk was outside
getting some bricks. Defendant went outside looking for the drunk guy.
Plaintiff came running up the steps and the defendant knocked him out
thinking it was the drunk guy attacking him. Defendant was not held liable
d) Provocation - Insults or verbal threats do not give the defendant a privilege to
self-defense. They can be used to prevent punitive damages from being put on
the defendant.
e) Amount of force - The privilege is limited to the use of force that is or reasonably
appears necessary for protection against a threatened battery. Differences in
age, size and relative strength are proper considerations.
(1) Hypos
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(a) 56, 135 middle aged man is permitted to ward off a 66, 230
young athlete with a shot aimed near his foot.
(b) Small ten year old justified throwing a broom at a much larger 10
year old
f) Retreat Before Use of Deadly Force: Jurisdictional disagreement. Whether or not
a defendant must retreat if he can do so without increasing his danger rather than
stand his ground and use deadly force
(1) R2T 65 - retreat not required within ones home.
(a) Also, defendant may use deadly force as a self-defense if there is
even the slightest reasonable doubt that retreat can be safely
made
(2) Retreat rule being abolished by Stand Your Ground Legislation
g) Injury to a third party: The privilege of self-defense allows leeway for mistakes.
(1) EXAMPLE: Defendant, while defending himself against A, unintentionally
harms B instead.
(a) Defendant is not liable, absent some negligence
(i)
When determining whether there is negligence, take into
account the following factors:
(a) The Emergency
(b) The necessity of the defense against A
C. Defense of others
1. Same principles as self-defense
2. Exception: No leeway for mistake, even reasonable mistakes.
a) Alter ego rule - minority rule: individual held liable if they jump in, to assist
mugger.
D. Defense of property: reasonable mistake is NOT allowed under common law rule of
property.
1. Rules
a) Applies only to current possessor
b) A party cannot gain privilege to use deadly force for defense of property by giving
notice. This is because the value of human life is higher than property rights
c) Booby traps are illegal because they are indiscriminable
2. Cases
a) Katko v. Briney
(1) The defendant inherited the old house from his wifes grandparents.
There was a series of intrusions and thefts. Defendant boarded up the
windows and placed no trespassing signs around the property. In 1967,
the defendant set a shotgun trap in a bedroom in the house. The
defendant placed his 20-gauge shotgun against the bed with wire
connected to the trigger and the doorknob. The gun was originally pointed
at an intruders stomach, but was moved to fire at his legs. The shotgun
was admittedly placed there out of anger. The gun could not be seen from
the outside and there was no notice posted about it. Plaintiff entered the
home through a porch window. The plaintiff began to open the door to the
north bedroom and the gun went off blowing away the plaintiffs right leg.
The plaintiff was assisted in getting to medical care by his accomplice.
24

The plaintiff spent 40 days in the hospital. Plaintiff ended up with a
permanent deformity and shortening of the leg. Katko wins.
(a) RULE: R2T 85 - The value of human life and limb, not only to the
individual concerned but also to society, so outweighs the interest
of a possessor of land in excluding from it those whom he is not
willing to admit thereto that a possessor of land has, as is stated in
Section 79 no privilege to use force intended or likely to cause
death or serious harm against another whom the possessor sees
about to enter his premises or meddle with his chattel.
(b) POLICY: People are more important than property. We should
value life more than wealth. Deadly force can be used only to
protect your life.
E. Recovery of Property
1. Overview
a) Regaining lost possession of personal property through use of force.
2. RULES:
a) Fresh pursuit. Any lapse requires individual to resort to legal process.
b) Leeway for mistakes not allowed through common law.
3. Cases
a) Bonkowski v. Arlans Department Store
(1) Plaintiff and her husband left the defendants store. Earl Reinhart, a
private police officer on duty in the defendants store, called her over. He
informed her that a customer in the store informed him that the plaintiff
had stolen 3 pieces of costume jewelry. Plaintiff assured him she had
stolen nothing. Reinhardt requested to see the contents of her purse. She
emptied the purse into her husbands hands and produced purchase slips
for everything she had. Reinhardt was satisfied that she had not stolen
anything and went back into the store. Defendant wins
(a) RULE: A store owner can reasonably detain a person that they
reasonably believe has unlawfully taken chattel.
(i)
POLICY: Protects shop owners. They now are not faced
with the dilemma of allowing people to steal from them or
be sued for false arrest.
4. Shopkeepers Privilege: aka Merchants Privilege
a) Rules
(1) Reasonable belief
(2) Reasonable investigation
(3) ***Allows room for reasonable mistakes***
5. Fresh Pursuit
a) Limited to prompt discovery of dispossession, and prompt and persistent efforts
to recover the chattel. Any undue lapse of time during which the pursuit has not
been commenced, or has come to a halt, will mean that the owner is no longer
privileged to fight himself back into possession, but must resort to law
(1) R2T 103
(a) A resort to any force at all will not be justified until a d
emand has
been made for the return of the property; but this is not required
25

when it reasonably appears that demand would be useless or
dangerous.
F. Necessity
1. Rules
a) Privilege that allows a defendant to commit what would otherwise be a tort
(almost always a property-based tort) where he acts under imminent
circumstance to protect life or property from some independent cause (not his
fault)
b) There must be reasonable appearance of necessity.
c) There is no right to compensation for destruction of property that comes out of
public necessity.
d) Private necessity=strict liability. Must pay for harm caused, but no tort.
2. Cases
a) Surocco v. Geary
(1) There was a fire in San Francisco. The defendant was the mayor of the
town. He ordered that the plaintiffs home, which was already burned, be
torn down to prevent the fire from spreading to more homes in the area.
The plaintiff argues that if the defendant had not torn down his home, then
he could have rescued more of his belongings from the fire. Defendant
wins. He was privileged to blow up the home to try to save the town.
(a) RULE: Under the common law, a party who destroys the property
of another on the basis of a good-faith, public necessity will not be
held liable for the damages. (mistakes are allowable)
(i)
POLICY: At times of necessity, the individual rights of
property give way to the higher laws of impending
necessity. Private rights of individual yield to the
considerations of general convenience, and the interests of
society. The necessity must be clearly shown.
(b) Hypo: Even if the champion of the public is not liable, should not
the city or other community, whose interests he protects, be
required to make compensation to the plaintiff?
b) Vincent v. Lake Erie Transportation Co.
(1) The defendants boat was moored at the plaintiffs dock to unload goods.
A large storm came into the harbor and it became difficult and potentially
dangerous for the defendants boat to leave the harbor. The storm raged
and the defendant could not hail a tug out of the harbor. The defendant
replaced lines as often as they slacked or began to break. Often with a
larger line. The rocking of the boat damaged the plaintiffs dock. The
defendant damaged the plaintiffs dock to prevent damage to themselves.
Douchey move. Plaintiff wins.
(a) RULE: A party who damages the property of another while acting
out of private necessity must compensate the property owner for
the resulting damage.
(i)
DETAILS: Tort negated, but compensation required
3. Public Necessity Notes
a) Some jurisdictions have provided for compensation for damages caused to
private property caused by actions taken out of public necessity.
26
V.
b) Constitutional provisions against taking private property for public use without
due compensation do not apply to action under the police power to protect the
public against the spread of contagious diseases or devastating fires and floods
or other exigencies
(1) The Government must show that the danger to the public was imminent
and the taking was a necessity, not just a convenience.
4. Private Necessity Notes
a) Hypo: An extortioner arrives at the office of a business tycoon ad threatens to
drop a package of explosives if not paid $1M. The business tycoon threatens to
placate him, but when the negotiations fail, the extortioner drops the package.
(1) If the tycoon leaps behind a bystander and is protected from the blast, is
he liable?
(a) No, able to save self out of private necessity.
(2) If he pulls the bystander in front of himself, is he liable?
(a) Yes, never privileged to take a life.
b) Generally, taking a life out of necessity is not acceptable when invoking necessity
as a privilege
(1) Example: Three shipwrecked individuals kill the fourth to eat him in order
to survive.
Negligence
A. Overview
1. Most cases will be with plaintiffs conduct being measured against the standard of the
reasonable person because the defendant has pled the affirmative defense of
contributory negligence: the defendant is claiming the plaintiffs conduct was negligent
and that the plaintiffs negligent conduct also contributed to the cause of plaintiffs
injuries.
2. Reasonable Risk vs. Unreasonable Risk
a) Probability that the harm will occur
b) Gravity/severity of the harm
(1) If severity of the harm is high, probability of the harm can be low
(2) If probability of the harm is high, the severity of the harm can be low.
c) Burden of avoiding the risk
(1) Factors to weigh when assessing burden
(a) Cost and effort of the defendant to protect society
(b) Impingement on socially useful conduct
B. Elements of Negligence
1. Duty
2. Breach of Duty
3. Causation
4. Injury
C. Negligence Formula
1. Determining Negligence
a) Probability that the risk would actually result in harm
b) Gravity/severity of the harm
c) Burden of eliminating the risk
(1) Burden comes in two forms
(a) Monetary & Effort Costs
27

(b) Burden on society if only way to eliminate the risk would be to
curtail its social utility
2. Judge Learned Hand Formula - ALWAYS APPLY UNLESS THERE IS SOMETHING
ELSE IS GIVEN TO GO OFF OF OR APPLY TO ANOTHER ALREADY ESTABLISHED
RULE.
a) B<PL
(1) B=Burden
(2) P=Probability
(3) L=Injury
b) If B<PL, then liability for negligence occurs
c) Risk/utility analysis or Economic deterrence model of tort law
(1) Goal is to make actions/products safer, but not at efforts unduly
reasonable
(2) Deter actors from creating risks that fail cost/benefit test while permitting
them to create cost-justified risks
3. Cases
a) (Lubitz v. Wells) - The defendant left a golf club out in his backyard for a long
time. Sometime later, the 11-year old son of the plaintiff was playing in the back
yard with a girl neighbor, Judith Lubitz. The defendants son picked up the club
and swung it at a rock. He accidentally struck the girl in the jaw and chin with the
golf club. Defendant Wins.
(1) Rule: Not meant to teach rules, rather to show what is or isnt negligent.
(2) Also, difference between intrinsically and non-intrinsically items. I e.
Shotgun vs. a golf club.
(3) Hypo- Defendant parks his car on the edge of a city street without a curb,
in front of a house where a mother and a 13-month old toddler are sitting
on a front porch, about 16 feet away. Defendant goes across the street to
visit a friend there. He comes back in 5 minutes, gets in the car and
drives off. There is a bump that he thought was a paving stone, but that
turned out to be the toddler who had crawled under the car. Was he
negligent?
(a) No, this would be higher standard of care than what would be
reasonable to the REASONABLE person.
(i)
P = rare event
(ii)
L = gravity is very high t is the life of the toddler
(iii)
C= not negligent
(iv)
Reasonable person is usually higher standard than what
the average person would do. But some things just
wouldnt be expected of a reasonable third party.
(4) Remember to take time with burden on exam. In the Lubitz case for
example put: Burden would be of picking it up and storing the club
somewhere. There is no social utility to leaving the golf club. Social
utility for the dad would say it is easier to get the club. EXCEPT golf club
is meant to be swung.
(5) Probability: It is going to be really likely that the club would be swing by a
kid but not super likely a kid would be hit. But it would be reasonable a
kid was struck.
28

(6) Hypo- If this case happened at a birthday party would it change anything?
(a) Yes, this would change the probability a kid would be hit by a club.
Clearly this situation would be negligent.
(7) If kids trespass on property of a single individuals home that has no kids
does this change anything?
(a) Probability is clearly decreased. Possible to conclude there was
no negligence.
b) (Blyth v. Birmingham Waterworks Co.) - Defendants installed water mains in the
street with fire plugs at various points. The pipes worked great for 25 years. Then
one winter, the plug across from the plaintiffs house sprung a leak because of a
frost. The leak allowed water to enter the plaintiffs house and caused damage.
Defendant Wins.
(1) Rule: Negligence is the omission to do something which a reasonable
man, guided upon those considerations which normally regulate the
conduct of human affairs, would or would not do.
(2) Hypo- Is a contractor building a skyscraper in Chicago required to take
precautions against an earthquake?
(a) No, it is rare to have earthquakes in Chicago.
(3) Is a contractor building a skyscraper in San Francisco required to take
precautions against an earthquake?
(a) Yes, it is known San Francisco experiences more earthquakes
than normal.
(4) Hypo- To refill the gasoline tank on a tractor, a farm worker was removing
the bunghole cap from a drum used to distribute gasoline when a spark
caused by the damaged threads (from repeated hammering during its
lifetime) caused flames to burst from it. In the negligence case witnesses
claimed that no such thing had ever happened before and consequently
the owner should not be liable for failing to anticipate an unknown danger.
Was the owner liable?
(a) Jury verdict ruled in favor of plaintiff. The defendants knew or
SHOULD HAVE KNOWN of the condition of the bunghole cap and
that such condition gave rise to a risk of harm even if they were
not aware of incidents where the exact risk had manifested itself.
(b) Held liable because gravity and severity of the facts.
c) (Pipher v. Parsell) - Pipher, Parsell, and Beisel were all riding together in
Parsells truck. Parsell was driving. They were driving 55 mph down the highway.
Beisel reached over and pulled the wheel causing the truck to run onto the
shoulder of the road. Everyone in the car noticed this was dangerous. Beisel
pulled on the wheel again. This time the truck was forced off the road and into a
ditch. Pipher was injured. Plaintiff wins.Parsell recognized that the actions of
Beisel were dangerous and did nothing to protect himself or the other passengers
in the car.
(1) Rule: A driver owes a duty of care to his or her passengers. Foreseeable
conduct of a passenger that could be dangerous is a liability to the driver.
(2) Facts altered slightly.
(a) What if Pipher, Beisel, and Parsell were sitting in front of a tv.
Beisel reaches over the couch and it teeters. Beisel reaches
29

again and the couch tips over and pipher gets injured. What is the
result?
(i)
Nothing happens. The gravity of the harm is not as big as
a car going 55 mph on the road.
(3) Hypo- Is it unreasonable conduct to send someone a text message if you
know they are driving and will view the text while driving and they ran into
someone on a motorcycle?
(a) Court concluded yes, however not all courts will agree on this
case.
d) (Chicago, B. & Q.R. Co. v. Krayenbuhl) - Defendant owned and operated railroad
equipment. Defendant had guidelines requiring that dangerous railroad
equipment remain locked when not in use, but these guidelines were frequently
ignored. The equipment in question was a turntable. When the Plaintiff, a
four-year-old girl, came upon such equipment owned by the Defendant, it was
unlocked and the Plaintiff was injured while playing on it. Her foot was severed.
Trial resulted in a verdict for the Plaintiff, and the Defendant appealed. Case was
reversed because of improper jury instructions, but defendant was probably
liable.
(1) Rule: With respect to dangerous instrumentalities, the character, location,
and utility of the instrumentality as well as the ease of making it safer
must be taken into account in determining what degree of precaution is
necessary so as not to be negligent. Basically, the level of dangerous
decides the level of care that should be taken to prevent injury.
e) (United States v. Carroll Towing Co.) - The Anna C was owned by Connors Co.
The barge was loaded with a cargo of flour for the United States. The charter
required that the company provide a bargee between the hours of 8 and 4. The
defendant was the owner of a tug which negligently shifted the Anna Cs mooring
lines. She broke free from her pier and crashed into a tanker. The propeller of the
tanker pierced the barge and it sunk. No one was on the barge at the time. The
bargee had not been on the boat for 21 hours. Connors Co. was found partly
responsible for the losses.
(1) Rule: Learned Hand Negligence Formula - Whether B (burden) is less
than P (probability) multiplied by L (injury).
(2) Note: In Conway v. OBrien Judge Hand stated in part, the degree of
care demanded of a person by an occasion is the resultant of three
factors: the likelihood that his conduct will injure others, taken with the
seriousness of the injury if it happens, and balanced against the interest
which he must sacrifice to avoid the risk. All these are practically not
susceptible of any quantitative estimate, and the second two are generally
not so, even theoretically.
f) (Restatement Third of Torts: Liability for Physical and Emotional Harm (2010)) Basic Test: A person acts negligently if the person does not exercise reasonable
care under all the circumstances. Primary factors to consider in ascertaining
whether the persons conduct lacks reasonable care are the foreseeable
likelihood that the persons conduct will result in harm, the foreseeable severity of
any harm that may ensue, and the burden of precautions to eliminate or reduce
risk of harm.
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D. Standard of Care
1. Reasonable Person Standard
a) Negligence is judged by an objective reasonable person standard
(1) How a reasonable person would act if they exercised an ordinary level of
care
b) Standard of care imposes minimum levels of intelligence
(1) Protects the rest of society
c) Reasonable standard of care is a community standard
(1) Rural vs. Urban
(2) Weather patterns
d) Liability for negligence exists if a reasonable person would have known of the
danger
e) Before a jury can know what a reasonable standard of care is, they must look at
the evidence
(1) The industry where the incident occurs cannot set the standard of care,
because the industry can disregard safety for the purpose of
incentives/money
(a) EXCEPTION: Medical industry can set the standard of care
because the health care standard is a custom standard
f) Custom evidence is never binding on a jury
(1) Some customs are so unreasonable that they will not be admitted in court
g) Custom standard of care vs. Judge Hands formula
(1) Apply custom first, then Judge Hands formula
(a) Judge Hands formula is always a good fall back
h) Cases:
(1) Vaughan v. Menlove - The defendant built a big hay stack on his land
near the plaintiffs land. The defendant was warned several times that the
hay would likely catch fire and that the fire would catch the plaintiffs
cottages on fire. The defendant said that he would risk it. The hay did
catch on fire and burned down his barn and stables as well as the
plaintiffs cottages. At the first trial, the jury was instructed to use an
objective standard. The trial court did not agree with this and granted a
new trial. The rule of an objective standard was upheld. Defendant
wanted a subjective standard of negligence. Court ruled the standard was
objective.
(a) Rule: Objective not subjective standard.
(i)
Hypo: McClurgs neighbor is a dumb guy that is very neat
and attentive. He put all his oily rags and newspapers right
next to his hot water heater. It catches fire and burns
McClurgs house down. When confronted the neighbor
said that he could not have seen that happening. He didnt
know and did the best he could in the circumstances. Is he
liable?
(ii)
Yes held to an objective standard of care.
(b) If he couldnt have done anything differently would he still have
been at fault?
(i)
Yes, still held to that objective standard of care.
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(c) Is it fair if the individual was so dumb that there was no way he
could have met the standard of keeping the oily rags away from
the other instruments that would have started a fire?
(i)
Yes, because it would be unfair to McClurg who lost his
property because of the neighbors actions.
(2) Delair v. McAdoo - The plaintiff was driving down the highway. The
defendant was driving in the same direction. The defendant decided to
pass the plaintiff and as he passed, his left rear tire blew out and he
crashed into the plaintiffs car. The plaintiff alleged that the defendant was
driving with inferior tires.
(a) Rule: A driver is responsible for viewing the parts in his car that
could reasonably malfunction during use.
(b) Notes: under the law of negligence, a person cant claim they
didnt know as the standard looks to a third person to see if the
third person would have known or SHOULD HAVE KNOWN of the
danger.
(i)
Negligence law can require someone to investigate.
(c) Hypo- Seraiah Vinson is the most reasonable person in the class
(i)
Do you always follow the speed limit? No
(ii)
Do you always check underneath your car before getting in
the vehicle? No
(iii)
Do you ever text while driving? Yes
(3) Trimarco v. Klein - The plaintiff was renting an apartment from the
defendant. The plaintiff was in the shower and was attempting to get out.
As he was attempting to leave the shower, the glass door shattered and
he received several severe injuries. The incident happened in 1976. Since
the 1950s putting tempered glass in bathrooms was the acceptable safety
standard. The glass door was not tempered.
(a) Rule: When custom and practice have removed certain dangers,
the custom may be used as evidence that one has failed to act as
is required under the circumstances. Industry Standard is used as
evidence. Custom Evidence. The customs of the industry. This
allows the jurors to know what the common standard of care is in
the industry. Industry cannot set the standard because industry is
incentivized by profits.
(b) Custom evidence: evidence of what others are doing. One way to
prove negligent behavior. This goes to the feasibility which relates
to Judge Hands Formula. When the burden is too great to be
feasible.
(i)
Why is custom evidence important?
(a) In order to breach the standard of care first need to
decide what the standard of care is. Then need to
decide if that standard is met.
(c) Note: What if the custom of the industry is a careless one? Judge
Hand has stated, courts say what is required; there are
precautions so imperative that even their universal disregard will
not excuse their omission.
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(d) Are there customs that are so clearly unreasonable that they are
not even to be admitted as evidence of due care?
(i)
Yes, while it is a custom of the industry it is so obviously
harmful that it would not matter if it was brought in as
evidence.
2. Emergency Doctrine
a) A person may not be required to exercise as much care when acting during
emergency circumstances as they would if they had time to pause and deliberate
b) Under the Emergency Doctrine, the same standard of care of a reasonable
person exists.
(1) Amount of care can go down in emergencies
(2) Key question: What is reasonable under the circumstances?
c) Hypo: Speed limit is posted and defendant is driving and keeping eyes on the
road and not exceeding the speed limit. Kid runs out from a car and in front of
driver. The driver slams on the brakes immediately.
(1) Probability of harm is higher and so the amount of care is higher than
what would be in an emergency. Circumstances change the amount of
care needed.
(a) Hypo: driver of a fuel tank needs to be more careful than
someone driving a bunch of water through Memphis.
d) Cases
(1) Cordas v. Peerless Transportation Co. - A man was robbed by two men in
an alleyway. One of the men had a gun. The man ran who was robbed
chased the men who decided to split up. The victim chased the man with
the gun. The man with the gun jumped into a taxi and told him to drive
after pointing a gun at the driver. The driver began to drive, but heard the
victim and others shouting for the thief to stop. The driver of the cab
slammed on the brakes and put on the emergency brake. He jumped from
the cab leaving the robber in the back. The robber bailed from the cab as
well. The cab went up on the curb and injured a mother and her two
children. The family sued the cab company for negligence. Defendant
Wins.
(a) Rule: Negligence is the failure to exercise care and caution which
a reasonable and prudent person ordinarily would exercise under
like conditions or circumstances. EMERGENCY DOCTRINE
(b) To qualify as a sudden emergency, the event must be unforeseen,
sudden, and unexpected.
(i)
Ex: blinding effect of setting suns rays common and
expected, no sudden emergency instruction however with
darting children may be able to use the sudden emergency
doctrine.
(a) Cant create your own emergency. Such as a
passenger opening an umbrella in the backseat of
a moving vehicle.
(ii)
Circumstances with higher danger may pose a higher or
even a less amount of care depending on the activity.
33

(a) Motorist required to take into account the likelihood
that child on sidewalk may suddenly dart into street.
(iii)
The present case is different as it was decided by the
judge. If tried by the jury then a reasonable person in an
emergency is always instructed to view the reasonable
person in the circumstances.
3. Standard of care for Physical Handicaps
a) Physically handicapped individuals must act with the standard of care that a
reasonable person with the same physical handicap would act
b) Cases
(1) Roberts v. State of Louisiana - Burson is a blind man that operates the
concession stand at a post office. Burson is a young fit man. He was
walking to the bathroom without his cane and bumped into the plaintiff
and knocked him down. The plaintiff is an old frail man. He fell to the
ground and injured his hip. The defendant feels he should have been
using his cane in the building. Most people, with the exception of the
plaintiffs expert witness, disagree with the plaintiff.
(a) Rule: A blind man cannot be held to the same standard as a
normal person. The reasonable standard has to be made to
account for his disability. It has to be the reasonable actions that a
reasonable person who is blind would do. DISABILITY
ALLOWANCE
c) Hypo: Should a blind person be driving?
(1) No, they should be held to the standard of care reasonable for a blind
person. Blind people shouldnt be driving.
4. Standard of Care for Children
a) Takes into account age, intelligence, maturity, training, and experience
b) When a child engages in an inherently dangerous activity, the child is held to an
adult standard of care
c) Cases
(1) Robinson v. Lindsay - The plaintiff was riding on an inner tube which was
being pulled by a snowmobile driven by Billy Anderson a defendant. The
other defendant is the owner of the snowmobile. The plaintiffs thumb was
severed by coming into contact with the tow rope. Billy was 13 at the time.
The plaintiff was 11. The plaintiffs thumb was reattached but it is no
longer functional.
(a) Rule: The standard of care for negligence is the standard of care
of a reasonable third person. Children operating big powerful
machines should be held to the same standard as adults.
d) Hypo: a 4 year old running down an elderly woman while on a bicycle. Can the
child be sued?
(1) Yes, however the child wouldnt be able to be sued under the
restatement.
5. Standard of Care for Mental Handicaps
a) Insanity does not negate negligence liability. Individuals are held to the same
standard of a reasonable person
(1) EXCEPTION: Sudden mental illness without forewarning
34

(a) Very few jurisdictions recognize this exception
b) Cases
(1) Breunig v. American Family Ins. Co. - Veith, an insured of Defendant,
was driving her car when it struck a car driven by Plaintiff. Veiths car
veered across the center of the road and into Plaintiffs lane. Defendant
claimed Veith was not negligent because just prior to the collision she
suddenly and without warning was seized with a mental delusion which
rendered her unable to operate the car with her conscious mind. Veith
told her psychiatrist that she was driving when she believed that God was
taking a hold of the steering wheel and was directing her car. She saw the
truck coming and stepped on the gas in order to become airborne
because she knew she could fly because she thought she could fly like
Batman. The jury returned a verdict for Plaintiff because they found that
Veith had knowledge and forewarning of her mental delusions. More
specifically, the court, despite the testimony of the psychiatrist, found that
Veith had knowledge of her condition due to her past conduct. Therefore,
the question was properly left for the jury. Defendant, insurance company,
appealed.
(a) Rule: Not all types of insanity are a defense to a charge of
negligence. * The general policy for holding an insane person
liable for his torts is stated as follows:
(i)
i. When one of two innocent persons must suffer a loss it
should be borne by the one who occasioned it;
(ii)
ii. To induce those interested in the estate of the insane
person to restrain and control him; and,
(iii)
iii. To stop false claims of insanity to avoid liability
(iv)
* However, not all types of insanity impair the responsibility
for a negligent tort. The effect of the mental illness or
mental disorder must be such as to affect the persons
ability to understand and appreciate the duty, which rests
upon him to drive his car with ordinary care. In addition,
there must be an absence of notice or forewarning to the
insane person that he may suddenly be unable to drive his
car.
(v)
* All we hold is that a sudden mental incapacity equivalent
in its effect to such physical causes as a sudden heart
attack, epileptic seizure, stroke, or fainting should be
treated alike and not under the general rule of insanity.
(vi)
* In this case, the jury could infer that Veith had knowledge
of her condition and the likelihood of her condition, just as
one who has knowledge of a heart condition knows the
possibility of an attack.
(2) Hypo: Suppose you have an elderly patient that has Alzheimers and
dementia. What you know about mental illness what would you argue?
(a) Would most likely argue it is a physical impairment that has mental
consequences and therefore should be treated under rules of
physical disabilities.
(i)
So far there hasnt been a case.
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6. Professional Standard of Care (Medical Malpractice)
a) Overview
(1) Professionals are held to reasonable and customary standards of other
professionals in the same field
b) How to Avoid Professional Malpractice
(1) Posses degree of knowledge and skill customarily found in the profession
(2) Exercise the knowledge and skill customarily found in the profession
c) Medical Malpractice Standard of Care Rule
(1) A physician is required to possess and exercise the degree of knowledge
and skill customarily exercised by members of her profession in the same
area of practice [in the same community]
(a) Community rule depends on jurisdiction
(i)
Community standard is usually universal but can differ
between communities. Reasonable person standard is
part of the community standard.
(ii)
Example: It is a matter of common knowledge and
common experience that there is no telling when or under
what circumstances a mule will or will not kick. The only
way to escape danger from the feet of a mule is not to go
within the radius of its heels.
(2) The Medical profession gets to offer/choose its own (customary) standard
of care
d) Establishing the Professional Standard of Care
(1) Expert testimony is required to establish standard of care
(a) Questions for Expert Witness
(i)
What is the customary standard of care for this medical
condition at this time [in this community]?
(ii)
Did [defendant] breach the standard of care?
(b) Expert Witness Communities/Jurisdiction Rules
(i)
Locality Rule
(a) Two states - Idaho & New York have strict locality
rules
(i)
If you are a doctor in NYC, only NYC
doctors can establish the standard of care
as expert witnesses
(ii)
Statewide Experts
(iii)
Same or similar community
(a) TN is this, but with regional limitations
(iv)
National Standard of care
(2) Plaintiff must establish the standard of care AND the breach of the
standard of care
e) Cases
(1) (Heath v. Swift Wings, Inc.) - This suit is the result of an airplane crash
that charges the pilot with negligence. The pilot and his passengers all
died as a result of the crash. According to the widow of the passenger,
the pilot spent a long time loading and reloading the small aircraft prior to
takeoff. There was evidence that the plane was not properly balanced. At
36

trial, an expert testified that in his opinion the pilot should have used flaps
to aid in the takeoff and should have made a controlled landing shortly
after takeoff. In the experts opinion, had the pilot taken these measures,
the crash would have been avoided. The jury found there was no pilot
error after receiving a jury instruction containing a definition of negligence
that focused on the defendants own experience and training. The pilot
was an inexperienced pilot. The suit is the estates of the son and wife
against the estate of the father and swift wings, the manufacturer of the
aircraft. There must be a new trial because the jury was given incorrect
instructions establishing a subjective standard of professional care.
(a) Rule: A professional standard of care is not a subjective standard,
it is an objective standard predicated on the rules and guidelines
of the profession.
(2) (Boyce v. Brown) - September of 1927, the plaintiffs engaged the services
of the defendant. The defendant is a surgeon in Phoenix. The plaintiff had
a fractured ankle. The operation was to make an incision in the ankle,
bring the bone fragments together, and fix them in place using a metal
screw. The defendant attended the plaintiff for several weeks after the
surgery to ensure that the bones had met. There is no contention that the
defendant acted appropriately up to this point. Seven years later, in
November 1934, the plaintiff came to the surgeon again complaining that
her ankle was giving her considerable pain. The doctor wrapped her ankle
in a bandage and filed an arch insert he had made for her seven years
prior. A week later the defendant removed the bandage. The plaintiffs
ankle did not improve, but continued to grow more painful. In 1936 the
plaintiff went again to visit the defendant who examined the ankle. The
plaintiff then went to see another doctor, Dr. Kent in Mesa. Dr. Kent
examined the ankle and operated to remove the screw. The plaintiffs foot
then healed without issue.
(a) Rule: Medical malpractice can only be shown where, by expert
testimony, it is established that the doctor acted outside of the
community norms in their treatment of the patient. A numbered list
of malpractice rules appears in this case.
(i)
One licensed to practice medicine is presumed to possess
the degree of skill and learning which is possessed by the
average member of the medical profession in good
standing in the community in which he practices, and to
apply that skill and learning with ordinary and reasonable
care to cases which come to him for treatment. If he does
not possess the necessary skill or learning, or if he does
not apply it, then he is guilty of malpractice.
(ii)
Before a physician or surgeon can be held liable as for
malpractice, he must have done something in his treatment
of his patient which the recognized standard of good
medical practice in the community in which he is practicing
forbids in such cases or he must have neglected to do
something which such standard requires.
37

(iii)
In order to sustain a verdict for the plaintiffs in an action for

malpractice, the standard of medical practice in the
community must be shown by affirmative evidence and
unless there is evidence of such a standard, a jury may not
be permitted to speculate as to what the required standard
is, or whether the defendant has departed therefrom
(iv)
Negligence on the part of a physician or surgeon in the
treatment of a case is never presumed but must be
affirmatively proven, and no presumption of negligence nor
want of skill arises from the mere fact that a treatment was
unsuccessful, failed to bring the best results, or that the
patient died.
(v)
The accepted rule is that negligence on the part of a
physician or surgeon, by reason of his departure from the
proper standard of practice, must be established by expert
medical testimony, unless the negligence is so grossly
apparent that a layman would have no difficulty
recognizing it.
(vi)
The testimony of other physicians that they would have
followed a different course of treatment than that followed
by the defendant is not sufficient to establish malpractice
unless it also appears that the course of treatment followed
deviated from one of the methods of treatment approved
by the standard in that community.
(b) How could the question been worded differently to get the case to
trial?
(i)
Two questions that would establish what we need to get to
trial.
(a) Dr. Kent what is the standard of customary care or
treatment for this medical condition during 1934 in
this community?
(b) In your expert opinion, did Mr. Boyce violate this
standard of care?
(3) Morrison v. MacNamara - The Plaintiff patient was given test for a urinary
tract infection. The test was administered while the Plaintiff was standing.
The Plaintiff had an adverse reaction to the test and fell, hitting his head.
The Patient suffered permanent loss of his senses of smell and taste as a
result of his fall. At trial, the Plaintiff provided expert testimony from a
doctor practicing in Michigan. The doctor stated that the test is always
performed while the patient is sitting or prone. The trial court refused to
allow the testimony and held that the expert testimony for medical
malpractice cases must come from a doctor who practices in the
community where the malpractice is alleged, in this case Washington
D.C.
(a) Rule: A national standard of care is a more modern method for
measuring whether a doctor has committed negligence. The
locality rule developed to protect rural doctors who lacked means
38

of transportation and communication by which they could acquire
the same set of skills as urban doctors. But the policy behind the
locality rule does not hold true of doctors in the District of
Columbia and the disparity between doctors in urban and rural
areas has mostly been eliminated. Furthermore, due to the
uniformity of the proficiency certifications that are required by
national boards, a national standard is more practical.
E. Informed Consent
1. Overview
a) Physician can be held liable for failure to disclose feasible alternatives and any
material risks of undergoing surgery
b) Self-determination/bodily autonomy is the philosophy undermining this doctrine
(1) Individuals can choose what happens to their body.
2. Elements of an Informed Consent Claim
a) Duty to Disclose
(1) What risks should be disclosed? What legal standard should we apply?
(a) Professional Standard of Care (majority rule)
(b) Patient Standard of care
(i)
Objective approach: Reasonable patient standard (Second
to majority)
(a) What would a reasonable patient want to know?
(ii)
Subjective standard: Particular patient standard (small
minority)
(a) What would this particular patient want to know?
b) Breach of that duty
c) Casual Connection between failure to disclose and the injury
(1) Plaintiff has to show that doctor knew of the risk and patient would have
refused treatment if patient was informed of the risk
(a) Objective approach
(i)
Would a reasonable patient not have elected to undergo
treatment if disclosure was made?
(b) Subjective approach
(i)
Would the plaintiff not have elected to undergo treatment if
disclosure was made?
d) Manifestation of the injury
(1) Injury actually has to occur
3. Defenses to Informed Consent
a) There is no need to disclose risks that ought to be known by everyone
b) There is no need to disclose risks that are already known to the patient
c) Therapeutic privilege
(1) If disclosure would alarm, emotionally upset, and be detrimental to the
patients care, then the doctor does not have to disclose
d) There is no need to disclose during an emergency
4. Cases
a) Scott v. Bradford - The plaintiffs doctor informed her that she had several tumors
on her uterus. He referred her to the defendant. Defendant admitted the plaintiff
to a hospital where she signed several basic consent forms before the defendant
39

performed a hysterectomy. The plaintiff ended up with a leak of urine from her
bladder into her vagina. She visited a urologist and after three surgeries she was
fixed. She is suing the hysterectomy doctor for medical malpractice because she
was not informed of the risks of her surgery and would have refused it if she had
known she could have gotten a bladder into the vagina leak. Defendant Wins.
(1) Rule: The doctrine of informed consent arises out of the premise that
doctors cannot substitute their own judgment for that of the patient. For
consent to medical treatment to be effective, it must stem from adequate
information about the risks from the treatment as well as any collateral
risks. Informed consent is as essential to the physicians skill as
performing the treatment. If no consent is obtained then treatment would
be a battery. If consent, but uninformed in obtained then it would be
negligence on the part of the doctor for failing to perform the obligation of
informing the patient.
F. Negligence Per Se (Violation of Statute)
1. Violation of Statute - Three Approaches
a) Negligence per se (majority rule)
(1) statute sets fixed standard of care.
(a) Rest of negligence: factfinder sets standard of care without
existence of statute
(b) Negligence per se applies to statutes, administrative regulations,
ordinances, etc. Some states give less weight to administrative
regulations and ordinances.
(2) Must show that there was a causal connection between violation of
statute and cause of action.
(3) Statute does not generally create cause of action. Cause of action was a
tort cause of action and statute applies to cause of action.
(a) Jury instruction: Ladies and gentleman, there was a statute at
the time of the cause of action. If you find that defendant that
violated the statute, you must find the defendant negligent per se.
b) Rebuttable presumption
(1) it would be more dangerous to follow statute. Reasonable to violate
statute for personal safety.
c) Mere evidence of negligence
2. Requirements of Negligence Per Se
a) Plaintiff must be within the class of persons intended to be protected by the
statute. If plaintiff is not within the class of persons, the plaintiff would not be able
to invoke the doctrine of negligence per se
b) Plaintiff must suffer the kind of harm the statute was intended to protect against
c) There must be a causal connection between the violation of the
statute/regulation/ordinance and the injury
3. Effect of Statute
a) R2T 288A: Excuses remove the effect of the statute. Negligence can still be
found, but not negligence per se
(1) An excused violation of a legislative enactment or an administrative
regulation is not negligence.
40

(2) Unless the enactment or regulation is construed not to permit such
excuse, its violation is excused when
(a) the violation is reasonable because of the actor's incapacity;
(i)
HYPO: A child, too young to know or appreciate the
statute, crosses a street in the middle of the block.
(b) he neither knows nor should know of the occasion for compliance;
(i)
HYPO: A statute provides that no vehicle shall be driven
on the highway at night without a tail light. Without any
fault or knowledge of defendant, his tail light goes out while
he is driving at night, and as a result plaintiff is injured in a
collision with him
(c) he is unable after reasonable diligence or care to comply;
(i)
HYPO: driving on the other side of the yellow line on a
narrow road that has cars parked on the right side of the
road, thus forcing a driver to cross the yellow line for the
purpose of safety.
(d) he is confronted by an emergency not due to his own misconduct;
(i)
Defendant drives on the left side of the road to avoid hitting
a child who has darted out from the right.
(e) compliance would involve a greater risk of harm to the actor or to
others.
(i)
EXAMPLE: Zeni case
b) Caution is needed when framing standards of behavior that amount to rules of
law.
(1) Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace of normal.
4. Cases
a) (Osborne v. McMasters) - A clerk working in the Defendants drug store sold an
unlabeled bottle of poison to the Plaintiff, Osbornes wife. Not knowing that the
drug was poisonous, the Plaintiffs wife took the drug and died. By statute the
clerk was required to label the drug as poison and by failing to do so, he broke
the law. Plaintiff Wins.
(1) Rule - If a person neglects to perform a duty imposed by either statute or
common law and that law is designed for the protection of others, then the
evidence of the act or omission constitutes negligence per se.
(2) Notes: A statute that provides for a criminal proceeding only does not
create civil liability; if there is no provision for a remedy by civil action to
persons injured by a breach of the statute it is because the Legislature did
not contemplate one.
(a) The significance of the statute in a civil suit for negligence lies in
its formulation of a standard of conduct that the court adopts in the
determination of such liability. The decision as to what the civil
standard should be still rests with the court.
(3) Why give any effect at all in a civil action for negligence to a statute that
merely specifies a crime and provides for a criminal penalty. What about
the following arguments?
41

(a) The reasonable person will always obey the criminal law. Is this
true? What about a statute such as the legendary one providing
that when two railroad trains approach a crossing each shall stop
and neither shall move forward until the other has passed by?
(i)
Not always true, see example of train stopping in above
question
(b) The legislature intended, or is presumed to have intended, a civil
remedy for the violation. What is the probability as to the state of
mind of the legislature: (1) it did intend to provide a civil remedy,
but did not say so; (2) it intended not to provide one and therefore
omitted it; it never thought about it all?
(i)
The concept is not always true
(c) Allowing a jury to find that behavior is reasonable when the
legislature has condemned the behavior as unlawful creates a
dissonance and denies institutional comity between judiciary and
legislature.
(i)
This approach allows for flexibility for civil liability and
reasonable person standards.
b) (Stachniewicz v. Mar-Cam Corp.) - The Plaintiff suffered severe head injuries
when he was injured during a barroom brawl. The assailants had been at the bar
drinking for over two hours when the fight erupted. A state statute forbids people
from giving alcoholic beverages to anyone visibly drunk. A state licensing
regulation forbids licensed bar owners from permitting disorderly conduct or
visibly intoxicated persons upon the licensed premises. The trial court held that
the Defendants violations of both the statute and the regulation did not constitute
negligence per se. Defendant violated regulation, but not the statute.
(1) Rule - Negligence per se results when a statute or regulation has been
violated and that violation results in injury to a member of the class that
the legislation was meant to protect and the harm is of the kind that the
legislation was intended to prevent.
(2) More - * The violation of the statute was not negligence per se.
(3) * The violation of the regulation is negligence per se.
(4) * The statute makes it illegal to give an alcoholic beverage to someone
already intoxicated. It is impossible to determine whether the injury
sustained was the result of the drink given after intoxication occurred, or if
the injuries would have occurred without that drink.
(5) * The regulation, on the other hand, is drafted to prevent injuries and
abuses associated with the types of disturbances connected with bars
and intoxication. Because the Plaintiff was within the class of persons the
regulation sought to protect and because the injuries he sustained were of
the type of harm the regulation sought to avoid, the violation of the
regulation can be used as evidence of negligence per se.
(6) R2T 288
(a) The court will not adopt as the standard of conduct of a
reasonable man the requirements of a legislative enactment or an
administrative regulation whose purpose is found to be exclusively
42

(i)
To protect the interests of the state or any subdivision of it

as such, or
(ii)
To secure to individuals the enjoyment of rights or
privileges to which they are entitled only as members of
the public, or
(iii)
To impose upon the actor the performance of a service
which the state or any subdivision of it undertakes to give
the public, or
(iv)
To protect a class of persons other than the one whose
interests are invaded, or
(v)
To protect another interest than the one invaded, or
(vi)
To protect against other harm than that which has resulted,
or
(vii)
To protect against any other hazards than that from which
the harm has resulted
c) (Zeni v. Anderson) - The Plaintiff was hit by the Defendants car while walking to
work one winter morning. The Plaintiff, instead of using the sidewalk, was walking
along a well-used pedestrian snow path with her back to oncoming traffic. The
Defendant, having defrosted her windows and scraped them that morning, was
traveling within the speed limit down the busy street when she hit the Plaintiff with
her car. There was testimony at trial that the Defendants windows were clouded
over and that the snow path that the Plaintiff used was safer than the sidewalk on
cold icy days. By using the snow path instead of the sidewalk, Plaintiff was in
violation of a state statute, which required the use of sidewalks where provided
and where they are not, pedestrians must walk on the side of the road facing
oncoming traffic. Plaintiff Wins.
(1) Rule: The violation of a statute creates a rebuttable presumption of
negligence, which can be overcome by providing an adequate excuse as
to why the statue was ignored.
(2) More: In a civil action for damages, violation of a statute creates a
rebuttable presumption of negligence. Violation of a statute creates a
rebuttable presumption of negligence, which can be overcome by
showing that there was an adequate excuse or reason for such action
under the circumstances of the case. The court declines to attach
contributory liability to the Plaintiff because it was shown at trial that using
the sidewalk would put the Plaintiff in danger of falling.
G. Proof of Negligence
1. Burdens of Proof
a) Substantial Evidence - lowest standard
b) Preponderance of the evidence
(1) Greater weight of the evidence (even if only by 1%)
(2) Evidence shows existence of the facts is more likely than not
(3) This is the burden of proof required in the overwhelming majority of torts,
property, and contracts cases
c) Clear & convincing evidence
(1) Required for defamation/punitive damages
d) Beyond a reasonable doubt - criminal standard, highest standard
43

2. Plaintiffs Burden in Civil Cases
a) Burden of production/burden of going forward with the evidence
(1) To meet the burden of production, the plaintiff must produce sufficient
evidence to convince the judge, viewing the evidence in the light most
favorable to the plaintiff that reasonable jurors could find that the plaintiff
could prove the case by preponderance of the evidence
b) Burden of persuasion
3. Circumstantial Evidence
a) Generally
(1) Requires factfinder to draw inferences
b) Defendants Duty regarding dangerous conditions
(1) To be prove liability, plaintiff must prove that defendant had notice of the
dangerous conditions
(a) Actual notice (defendant actually knew of the hazard) O
R
(b) Constructive notice (defendant should have known of the hazard)
(2) Extreme burden shift (minority rule)
(a) HYPO: If plaintiff shows that there was a foreign substance on
floor and that substance caused the fall, burden shifts to
defendant to show that employees neither caused substance to be
on floor nor had sufficient time to have discovered and removed it.
c) Cases
(1) (Goddard v. Boston & Maine R.R. Co.) - Plaintiff Goddard brought suit
against Defendant Boston & Maine Railroad Co. after slipping and falling
on a banana peel lying on one of Defendant's railroad platforms. Plaintiff
fell a cars length away from the train while many passengers were on the
platform. Plaintiff appealed a directed verdict in favor of Defendant.
(a) Rule: The banana peel that caused Plaintiffs fall may have been
dropped within a minute by any one of the persons who left the
train. The opinion of Chief Justice Holmes states it is
unnecessary to go further to decide the case. This is an early
case that relates to the burden of proof in negligence cases. While
Plaintiff could only provide the existence of the peel as evidence,
Holmes makes a logical leap, dismissing the possibility that the
peel was not dropped by a fellow passenger, but may have been
sitting on the platform for some time prior to the trains arrival, and
employees of the platform failed to notice it or pick it up.
(2) (Anjou v. Boston Elevated Railway Co.) - The Plaintiff, a passenger on the
defendants railway, injured herself when she slipped and fell on a banana
peel. The Plaintiff had been following behind one of the railroads
uniformed workers when she slipped. The banana peel was described as
black, dry and gritty and appeared as if it had been trampled on.
(a) Rule: Circumstantial evidence can be used to establish proof of
negligence.
(b) More: The Defendant was negligent in not removing the banana
peel. Because the appearance of the banana peel suggested that
it had been on the ground for some time, it could be inferred that
the peal had been seen and could have been removed by one of
44

the employees of the railway. This fact distinguishes this case
from Goddard, as there is evidence upon which to base a
conclusion that the peal was not dropped a moment before the
Plaintiffs fall by another passenger. Here, the railway employees
had time to pick up the hazard and they did not.
(3) (Joye v. Great Atlantic and Pacific Tea Company) - Plaintiff was at
defendants store. The slipped on a banana. There was no evidence that
the defendant was aware of the banana or put the banana on the floor.
There was no evidence as to how long the banana was on the floor, but it
could not have been longer than 30 minutes.
(a) Rule: If there is no evidence to establish that the defendant had
notice of the hazard, then the plaintiff cannot prove negligence.
(b) More - The circumstantial evidence is insufficient to determine
whether the Defendant had notice of the banana peel on the floor.
(4) (Jasko v. F.W. Woolworth Co.) - The Plaintiff was injured when she
slipped and fell on a slice of pizza in the Defendants store. The pizza was
sold over the counter to patrons shopping in the store. The area around
the pizza counter was tiled.
(a) Rule - When the defendant engages in a business that is prone to
hazardous mishaps, then the nature of the business serves to put
the business on notice of possible injuries.
(b) More - Notice of a dangerous condition need not be shown in
cases where the business itself creates the hazard.The stores
method for selling slices of pizza created a foreseeable risk of
danger. The slices were sold on wax paper to standing patrons
and therefore it was foreseeable that food would drop on the floor.
It was also foreseeable that if there were food on the floor it would
be hazardous. No further evidence is needed to show notice to the
store owner because the risk that someone might slip is a
recognized danger under these circumstances.
(5) (H.E. Butt Grocery Company v. Resendez) - While shopping at Defendant
H.E. Butt Grocery Company, Plaintiff Resendez slipped and fell near a
grape display put out for customer sampling. The sampling bowl of grapes
was on a table, sitting on ice, recessed five inches below the tables
surface. The table had a three-inch railing around its edges, and the
entire floor of the produce section was a non-skid surface and the store
put floor mats and warning cones around the display. Plaintiff sued for
negligence and the trial court and court of appeals of Texas found in favor
of Plaintiff. Defendant Wins.
(a) Rule: A plaintiff in a slip and fall case must prove that the condition
of the premises posed an unreasonable risk of harm, and the facts
and circumstances will determine whether such risk is
unreasonable.
(b) More: Mere display, without more evidence, cannot be considered
a condition on the premises that poses an unreasonable risk of
harm. For a plaintiff to recover in negligence for a slip and fall, she
has the burden to prove that the store had (1) actual or
45

constructive knowledge of a condition on the premises, (2) the
condition posed an unreasonable risk of harm, (3) the store did not
exercise reasonable care to reduce or eliminate the risk, and (4)
the stores failure to use such care proximately caused her
injuries. Plaintiff here could not provide evidence that the grape
display posed an unreasonable risk to customers of falling on
grapes.
(6) Note: Keep in Mind: Problems involved in proving facts in tort cases, as
any trial lawyer will affirm, are often more challenging than developing the
relevant rules of law. Courses in evidence, trial practice, and clinics will
further develop these skills.
4. Direct Evidence
a) Evidence that proves the fact without needing to draw inferences
5. Res Ipsa Loquitur
a) Overview
(1) Meaning: The thing speaks for itself
(2) The happening of some events gives rise to an inference by a more likely
than not standard that negligence did occur
(3) What is the most likely explanation?
(a) The mere occurrence of the accident is circumstantial evidence of
negligence
(4) Expert witnesses can be used to show res ipsa loquitur
b) Factors/Elements
(1) Event is one that ordinarily does not occur absent negligence
(2) Control Element
(a) Instrumentality that caused the injury was under the control of the
defendant
(i)
EXAM TIP: use R2T 328D(1)(b)
(a) Other responsible causes, including the conduct of
the plaintiff and third persons, are sufficiently
eliminated by the evidence
(b) Must consider whether the defendant had control when negligence
occurred
c) Different jurisdictional approaches
(1) Permits permissible influence of negligence by jury (MAJORITY RULE)
(2) Permits rebuttable presumption
(a) Negligent unless proven otherwise
(3) Shifts burden of persuasion (small minority)
(a) Defendant must prove by preponderance of the evidence that he
or she was not negligent
d) R2T 328D
(1) It may be inferred that harm suffered by the plaintiff is caused by
negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the
absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and
third persons, are sufficiently eliminated by the evidence; and
46

(c) the indicated negligence is within the scope of the defendant's
duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may
reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be
drawn in any case where different conclusions may reasonably be
reached.
6. Cases
a) (Byrne v. Boadle) - Byrne (Plaintiff) testified that he was walking along Scotland
Road when he evidently lost consciousness. Witnesses testified that a barrel of
flour fell on him. Neither Plaintiff nor any of the witnesses testified as to anything
done by Boadle (Defendant) that could have led to the barrel falling. Defendants
shop was adjacent to the road on which Plaintiff was walking, and the barrel
appeared to have fallen, or was dropped from the shop.
(1) Rule: A plaintiff must persuade a jury that more likely than not the
harm-causing event does not occur in the absence of negligence. The
plaintiff does not have to eliminate all other possible causes for the harm,
nor does the fact that the defendant raises possible non-negligent causes
for the harm defeat plaintiffs effort to invoke res ipsa loquitur (Latin for
the thing speaks for itself). The key is that a reasonable jury must be able
to find that the likely cause was negligence.
(2) More: The court allowed the case to proceed because of the nature of the
harm-causing event and Defendants relationship to it, i.e., as it was
Defendants responsibility to control the contents of his warehouse, the
accident itself is evidence of negligence.A plaintiff seeking to rely on res
ipsa loquitur must connect the defendant to the harm. Initially, courts
interpreted the control element narrowly, requiring the plaintiff to show
that the defendant likely had exclusive control over the harm-causing
instrumentality. This element has been liberalized and it is now enough
for a plaintiff to get the issue to a jury on res ipsa loquitur if he can provide
evidence showing that the defendant probably was the responsible party
even if the defendant did not have exclusive control. Further, most
jurisdictions no longer require the plaintiff to prove that he did not
contribute to his harm.
b) (Larson v. St. Francis Hotel) - The Plaintiff was walking along the sidewalk
outside of the Defendants hotel on V-Day when she was struck and knocked
unconscious by an armchair. It is assumed that the armchair came from one of
the hotel room windows.
(1) Rule - Res Ipsa Loquitur does not apply unless the object that caused the
accident is under the exclusive control of the defendant and under
ordinary circumstances using ordinary care, the accident would not have
happened.
(2) More - Res Ipsa Loquitur does not apply. For the doctrine to apply,
California law requires that: (i) there was an accident; (ii) the object that
caused the accident was under the exclusive control and management of
the defendant and (iii) had the defendant been using ordinary care, in the
course of ordinary events, the accident would not have happened.
47

(3) * The doctrine can have no application when there is evidence of divided
responsibility and the accident can have several causes, some of which
the Defendant is not responsible for. In the case of hotel rooms and their
furnishings, the hotel itself has no control over the furniture, the guests
do. Furthermore, this is a case where despite the Defendant using
ordinary care in the ordinary course of events, the accident would still
have occurred
(4) Notes - Older cases required that a defendant have exclusive control of
the object that caused the injury so a plaintiff that sat in a chair in the
defendants shop that collapsed was in control of the chair so the plaintiff
was not liable. This is no longer the standard.
c) (Sullivan v. Crabtree) - Mr. and Mrs. Sullivan, the Plaintiffs (Plaintiffs), adult son
was killed when the truck he was a passenger in went off a steep embankment
and crushed him. The Defendant, Crabtree (Defendant), was driving the truck at
the time and testified that there could have been several reasons that the truck
went off the road and down the embankment, including brake malfunction. The
day was clear and sunny, but there was loose gravel and broken pavement on
the road.
(1) Rule - The doctrine of Res Ipsa Loquitur creates a burden on the
defendant to show a reasonable explanation for the injury. The strength of
that burden depends on the facts of each case and the strength of the
inference created.
(2) More - Res Ipsa Loquitur does apply to this case.
(a) * It is for the trier of fact to determine the strength of the inference
of Defendants negligence.The doctrine of Res Ipsa Loquitur does
not generally apply to motor vehicle accidents, but in cases such
as this, where the cause of the accident is within the drivers
control and the accident is not one that would normally occur
without negligence, the doctrine may be applied.
(b) * The determination of what procedural effect the application of the
doctrine of Res Ipsa Loquitur has is done on a case-by-case
basis. A defense to the doctrine requires that reasonable evidence
be shown that the accident was not caused by the defendants
negligence. The weight of this burden on the defendant depends
on the strength of the inference that the circumstances
d) Notes
(1) Res Ipsa Loquitur - the thing speaks for itself.
(2) The phrase is not thought of highly in the legal community and is believed
to only be a principle because it is in Latin
(3) First statement of rule was by Justice Erle in 1865. There must be
reasonable evidence of negligence; but where the thing is shown to be
under the management of the defendant or his servants, and the accident
is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in
the absence of explanation by the defendants, that the accident arose
from want of care.
(4) The purpose of res ipsa loquitur is to smoke out the true facts from the
defendant. In situations where res ipsa loquitur can be applied, the
48

defendant often has all the information to be able to say what happened
so by placing liability on them, they will be forced to accept liability or
present the facts to defend themselves.
(5) Should Res Ipsa Loquitur be allowed in the following cases?
(a) Automatic doors closing on a person - No. There is no evidence
that such malfunction does not ordinarily happen in the absence of
negligence.
(b) When a person falls on a work of art the person who fell was
negligent. - Yes.
(c) When a heavy tool at a store falls off a shelf onto a shoppers foot.
- No.
(d) When an automobile leaves the highway and overturns and
crashes into a stationary object the driver is at fault. - Yes.
(e) When a fertilizer plant explodes the person in control of the plant
was negligent. - Yes.
(f) When an escalator comes to a sudden stop, the company
responsible for its manufacture and maintenance is at fault. - No.
There is no evidence that such malfunction does not ordinarily
happen in the absence of negligence.
(g) When cattle escape onto highway rancher is at fault. - yes, but
there is a jurisdictional split.
(h) When an experienced skier falls on his first run down the mountain
then the equipment was negligently maintained. - No.
(6) What cases could the trial court find that there was negligence without the
help of an expert witness?
(a) Patient experiences complications 3 months after surgery. A
second operation is performed and they find a sponge inside of
her. - Yes res ipsa loquitur. Who else would have put that sponge
in her.
(b) Plaintiff is left unconscious in her room for an hour after the
surgery and wakes up with a second degree burn in the shape of
a hot water bottle. - Yes
(c) Dentist operates on wrong side of patients mouth because the
x-ray was mislabeled. - Yes.
(d) After surgery for a tumor of the spinal cord, the plaintiff begins
hemorrhaging so the defendant reopens the incisions and packs it
full of cellulosic material. The plaintiff wakes up paralyzed. - No.
(e) A few days after abdominal surgery to enhance the plaintiffs
chances to become pregnant, she loses function in her left leg. No.
(f) Shortly after undergoing a bilateral mastectomy, the plaintiff
experiences numbness in her right arm. She is then diagnosed
with ulnar neuropathy, degenerative nerve damage affecting her
right hand. - No.
(7) Most jurisdictions allow the plaintiff to use an expert witness to prove res
ipsa loquitur in cases where the subject matter is so specific that the
49

layman would not be able to determine if it was likely for the incident to
occur without negligence.
(8) Res Ipsa Loquitur applies where a person leaves a parked car on the side
of the road and it rolls down the hill. Even though it was not in exclusive
control, it was negligent. An escalator stopping where the buttons are
exposed to the public cannot be determined to be res ipsa loquitur. There
was no exclusive control.
VI.
Causation
A. Causation Overview
1. Causation is not the cause of the injury, but a
cause of the injury
2. Both Causation in Fact and proximate causation are required to prove negligence
B. Causation In Fact
1. Sine Qua Non
a) Meaning
(1) Without which not
b) But for principle
(1) But for the defendants negligence, the injury would not have occurred.
(2) Causation in Fact Exists (WORDING)
(a) But for the defendants negligence in [FACTS], injury would not
have occurred
(3) Causation in Fact does not exist (WORDING)
(a) It cannot be said that but for the defendants negligence in
[FACTS], injury would not have occurred
c) Hypothetical alternative
(1) Jury inquires what would have happened if defendant was not negligent
d) Cases
(1) (Perkins v. Texas and New Orleans R.R. Co.) - The Plaintiffs husband
was killed in a collision between the car he was a passenger in and a
freight train operated by the Defendant, New Orleans Railroad Co. At the
intersection of the road and rail crossing where the accident occurred, a
large warehouse obstructed the view of both the cars driver and the
trains engineer and brakeman. The trains engineer and brakeman were
aware of the obstruction and while approaching the intersection rang the
trains bell and whistle and put its headlights on. The intersection also had
warning signals to warn drivers of approaching trains. These signals were
operating at the time of the accident. Of the three railway employees in
the forward engine of the train only two, the brakeman and a fireman saw
the car emerge from the intersection. The third, the engineer did not see
the car due to the obstructed view, but applied the emergency brakes
when his companions alerted him to the presence of the car. At the time
of the accident the train was between 30 to 60 feet from the car. Both
parties have conceded that the driver of the car, who was also killed, was
negligent in driving upon the train track with the signal lights on. The
parties have also conceded that the train was traveling at 37 miles per
hour when the self-imposed speed limit for the intersection was 25 miles
per hour.
50

(a) Rule - The defendants negligence must be a substantial factor in
the cause of the harm for liability to attach.
(b) More - The trains speed was not a substantial factor in the cause
of the accident. By traveling twelve miles over the self-imposed
speed limit, the engineer was negligent. The engineer testified that
even at a rate of 25 mph, the train could not have avoided the car.
Based on this testimony, the court finds that the speed of the train
was not a substantial factor in the crash. Because the accident
would have occurred even if the train had been traveling within the
speed limit, the negligence of the trains operator is not a
substantial factor in the collision.
e) Notes
(1) Driver is driving 30 mph in a 25 mph zone in a thunderstorm. Her speed
causes her car to be passing under a tree just as it is struck by lightning
and falls onto the car injuring the passenger. Does passenger have a
negligence cause of action? No. Not within the scope of liability.
(2) Truck driver negligently failed to signal for a left turn. Plaintiff crashed into
the truck. Can defendant win the case by establishing that the plaintiff
was not looking and would not have seen the signal if he had used it?
Yes.
(3) The mate of defendants boat falls overboard and disappears
immediately. The lifeboat is not appropriately stored. Is this negligence?
No. Fails the But For test.
2. Post hoc ergo propter hoc
a) Meaning
(1) After this therefore because of this
b) Logical fallacy
(1) Not valid in legal reasoning
(2) Just because one event follows the other, it does not mean that one event
causes the other.
3. Proof of Causation
a) Cases
(1) (Reynolds v. Texas Pac. Ry. Co) - The Plaintiff was injured when she fell
down an unlit stairway while exiting Defendants train at night. Because
the train was running late, the passengers were told to hurry and exit the
train. In doing so the Plaintiff lost her footing and fell. The plaintiff was a
fat lady.
(a) Rule - If the defendants negligence is of a character naturally
leading to the character of the injury, then causation is
established.
(b) More - The Defendants negligence was a cause of the Plaintiffs
injury.While it is possible that the Plaintiff might have fallen had
she exited the train during the daylight, the possibility is not
sufficient to divest the Defendant of liability for its negligence. The
Defendants negligence was of a character naturally leading to the
character of the Plaintiffs injury and therefore causation is
established.
51

(2) (Kramer Service v. Wilkins) - The Plaintiff was injured while staying in the
Defendants hotel as a guest. The injury occurred when the Plaintiff
opened a door and a piece of glass fell from a broken transform. The
condition of the transform had existed long enough to assume the
Defendant had notice of it. The accident resulted in a cut on the Plaintiffs
forehead that did not heal and eventually became cancerous. At trial, two
medical experts testified. One said there was only a one in one hundred
chance that the Plaintiffs original injury would result in cancer and the
other said it was impossible.
(a) Rule - The Plaintiff was injured while staying in the Defendants
hotel as a guest. The injury occurred when the Plaintiff opened a
door and a piece of glass fell from a broken transform. The
Defendant had notice of it. The accident resulted in a cut on the
Plaintiffs forehead that did not heal and eventually became
cancerous. At trial, two medical experts testified. One said there
was only a one in one hundred chance that the Plaintiffs original
injury would result in cancer and the other said it was impossible.
(b) More - The Plaintiff was injured while staying in the Defendants
hotel as a guest. The injury occurred when the Plaintiff opened a
door and a piece of glass fell from a broken transform. The
Defendant had notice of it. The accident resulted in a cut on the
Plaintiffs forehead that did not heal and eventually became
cancerous. At trial, two medical experts testified. One said there
was only a one in one hundred chance that the Plaintiffs original
injury would result in cancer and the other said it was impossible.
b) Notes
(1) Would an adequate number of campus police have prevented trespassing
boys from shooting a student in the eye with an air rifle? Maybe, but
would it be reasonable to post security all over the school searching
people? NO.
4. Concurrent Causes
a) Combined Cause
(1) Joint and several liability
(a) When there are multiple tortfeasors who contributed to an injury.
(i)
Tortfeasors are jointly liable for damages of the injury
(ii)
Also independently liable
(iii)
Plaintiff can only recover what a jury allows between the
multiple defendants
(a) Plaintiffs generally recover from the deeper pockets
(b) Hypo: $1M in damages awarded to plaintiff
(i)
D1 fault: 70%
(ii)
D2 fault: 30%
(a) Plaintiff can recover from both or one
(i)
If Plaintiff recovers from D2, D2 can sue D1
for contribution
52

(iii)
Modern approach: apportionment by percentage of fault
b) Concurrent Cause
(1) Overview
(a) Either cause would have alone caused the entire injury
(b) Either cause by itself would have been sufficient to cause the
entire injury
(2) Alternative liability
(a) All possibly responsible parties must be named in a suit for the
plaintiff to recover
(i)
Hypo: If A sues B and C for damages caused by a fire, but
D was the tortfeasor, A cannot recover because D was not
named in the suit
(3) Cases
(a) Combined (Hill v. Edmonds) - The Plaintiff was injured when the
car the Plaintiff was riding in hit a tractor truck left parked in the
road without its lights on. The driver of the car testified that she
saw the tractor ahead of her before the collision and so may have
been negligent in causing the accident. At trial the court dismissed
the complaint against the owner of the tractor due to the testimony
of the cars driver.
(i)
Rule: When two separate acts of negligence produce a
single harm, each tortfeasor is wholly responsible for the
harm even though his act alone may not have caused it.
(ii)
More - Multiple tortfeasors are each responsible for the
entire injury and the complaint against the tractors owner
must be reinstated.The accident would not have happened
had the tractors owner not left the tractor in the road
without its lights on. Because the harm could not have
resulted without the negligence of both the driver of the car
and the tractors owner, they both may be responsible for
the injury.
(b) Anderson v. Minneapolis, St. P & S. St. M. Ry. Co. - A forest fire
resulted from the negligence of the Defendant. The fire combined
with another of unknown origin and together the fires caused
damage to the Plaintiffs property. A forest fire resulted in the
destruction of the Plaintiff, Andersons (Plaintiff), property. The fire
had two origins, one cause was due to the negligence of the
Defendant, Minneapolis, St. P. & S. St. M.R.R. Co. (Defendant),
the other cause was unknown. The fire caused by the defendant
started in a swamp and moved onto the plaintiffs land. The other
fire was a wildfire sweeping through the land.
(i)
Rule - When the injury is caused by multiple acts of
negligence, but only one tortfeasor is known, that party is
still liable for the injury.
(ii)
More - The Defendant is still liable for its negligence even
though the fire it caused combined with another to result in
damage to the Plaintiffs property. The jury instructions
53

directed the jury to determine that if they found the fire set
by the Defendants train to be materially or substantially
responsible for the Plaintiffs damage, either alone, or in
connection with the other fire, then the defendant is liable.
The Defendants argued, based on [Cook v. Minneapolis,
St. P. & S.S.M. Ry. Co., 74 N.W. 561], the jury should have
been instructed that if they found the unknown fire was of
more superior force, then the Defendant would not be
liable since the fire it was responsible for would not have
caused the damage to Plaintiffs property, but for the
negligence of someone else. The court rejected this
argument reasoning that the Cook case makes sense if
you have two fires from known origins because the result is
joint and several liability. However, Cook does not work in
cases where the other fire is from an unknown source
because it leaves the Plaintiff with no possible recovery.
5. Problems in Determining What Party Caused the Harm
a) Cases
(1) (Summers v. Tice) - Plaintiff and Defendants went on a hunting trip.
Plaintiff provided each Defendant with directions on how to safely fire their
weapons. While attempting to shoot their target, both Defendants fired in
Plaintiffs direction. Plaintiff suffered injuries to his right eye and face.
Plaintiff sued both Defendants in a negligence action. The trial court
entered a judgment in Plaintiffs favor. On appeal, the court affirmed,
because it determined that Defendants failed to meet their burden of
proving who was responsible for Plaintiffs injury, therefore, because each
acted negligently, each was responsible to Plaintiff for damages from the
injuries he sustained. The court reasoned further that it was Defendants
burden to offer proof as to the apportionment of damages. Because they
failed to meet that burden, it was in the discretion of the trier of fact to
apportion the damages.
(a) Rule - If Defendants are independent tortfeasors, and thus each
liable for the damage caused by him alone, but it is impossible to
prove whose conduct actually caused the harm, many jurisdictions
presume that each Defendant was the actual cause of the
Plaintiffs injury. The wronged party should not be deprived of his
right to redress.
(b) The judgment of the lower court was affirmed because Defendants
failed to meet their burden of proving who was responsible for
Plaintiffs injury; therefore, because each acted negligently, each
was responsible to Plaintiff for damages from the injuries Plaintiff
sustained.When we consider the relative position of the parties
and the results that would flow if plaintiff was required to pin the
injury on one of the defendants only, a requirement that the
burden of proof on that subject be shifted to defendants becomes
manifest. They are both wrongdoers negligent toward the plaintiff.
They brought about a situation where the negligence of one of
54

them injured the plaintiff; hence it should rest with them each one
to absolve oneself, if he can. Defendants have placed the injured
party in the unfair position of pointing to which defendant caused
the harm. If one can escape the other may also and plaintiff is
remediless. Ordinarily defendants are in a far better position to
offer evidence to determine which one caused the injury. Here, the
defendants failed to meet their burden of proving which party was
responsible for plaintiffs eye injury. Thus, the court reasoned that
since they failed to meet that burden, the case should be left to the
trier of fact to apportion damages. Since each Defendant acted
negligently, each was responsible to Plaintiff for damages from the
injuries Plaintiff sustained. The appellate court correctly affirmed
the lower courts ruling.
C. Proximate or Legal Cause
1. Overview of Proximate Cause
a) Tool that courts use to impose limitations on liability for negligent acts
b) Can & should assume that defendants conduct was a
cause in fact of the injury
c) Proximate cause issues deal with whether and how far we want to extend liability
for negligent acts
d) Restatement Point of View
(1) R2T: Legal Cause
(2) R3T: scope of liability
e) It doesnt matter if consequences were unforeseeable, so long as they were
directly caused by the actions
2. Proximate Causation Approaches
a) Direct Cause of the injury
(1) Direct: the events follow in an unbroken and natural sequence under
conditions and forces already existing or in operation at the time
b) Scope of the [foreseeable] risk
(1) Essential question to ask
(a) What is the risk that made the conduct negligent in the first place?
(b) What is the greatest foreseeable risk of that conduct?
3. Unforeseeable Consequences
a) A defendant is only liable for the consequences flowing from his negligent act
that are foreseeable to a reasonable person at the time of the negligent act
b) An actor is negligent and therefore liable for damages only as to the
consequences of his conduct that were reasonably foreseeable
c) Cases
(1) (In re Polemis v. Furness Withy) - The owners of a vessel chartered its
use to the Appellants for the purposes of carrying, among other things,
petrol to Casablanca. While unloading the cargo in Casablanca, a
wooden plank fell into the hold containing the petrol and caused an
explosion. The fire completely destroyed the vessel. The owners,
charging the chatterers with negligence, claimed the value of the vessel
from the charterers. The charterers responded that the fire was a remote
consequence of their actions, so they are not responsible. The case was
referred to arbitration and the arbitrators found that the fire was caused
55

when the wooden plank hit metal and caused a spark. The arbitrators
agreed with the charterers that the spark was an unforeseen
consequence of the original negligence and therefore the destruction of
the vessel was a remote consequence. The only damage the charterers
should be liable for is the approximate damage done to the vessel by the
falling wooden plank, not the damage done by the fire. The owners
sought review.
(a) Rule - The exact way in which damage or injury results need not
be foreseen for liability.
(b) More - The fire was a foreseeable consequence of the negligence.
The finding that the spark was too remote to confer liability on the
charterers was based on the contention of the charterers that the
fire was an unforeseen consequence of the falling wooden plank.
The actual anticipations of the negligent party are irrelevant when
considering whether the resulting damage is remote. In this case,
the fire was a direct result of the negligent act and therefore the
charterers are liable for the fire. That damage that might result
when a wooden plank falls while discharging cargo is a
foreseeable consequence of the negligence, whatever that
damage might be.
(i)
R3T 33
(a) Actor who intentionally or recklessly causes harm is
subject to liability for a broader range of harms than
the harms for which that actor would be liable if
only acting negligently
4. Foreseeability
a) Wagon Mound
(1) Foreseeable Consequences
(a) Scope of the risk
(i)
Proximate Cause
b) Palsgraf
(1) Foreseeable plaintiffs
(a) Zone of the foreseeable risk
(i)
Duty
(a) Question of whether a duty is owed only comes up
in two situations
(i)
Cases with bizarre facts
(ii)
Cases with novel policy issues
c) Cases
(1) Overseas Tankship (U.K.) Ltd. V. Morts Docks & Engineering Co., Ltd.
Wagon Mound No. 1 - The Plaintiff, Morts Dock & Engineering Co., Ltd.
(Plaintiff), operated a dock in the Port of Sydney. The Defendants were
the owners of the vessel Wagon Mound (Defendants). Wagon Mound was
moored 600 feet from the Plaintiffs wharf when, due the Defendants
negligence, she discharged furnace oil into the bay causing minor injury
to the Plaintiffs property. However, the oil was ignited when molten metal
dropped from the wharf and came into contact with cotton waste floating
56

on the waters surface. The fire seriously damaged the wharf and two
ships docked there.
(a) Rule - The natural consequences rule is overruled and reasonable
foreseeability test is adopted.
(b) More - The injury to Plaintiffs property, though a direct result of
the defendants negligence, was an unforeseeable consequence
and liability does not attach. The natural consequences rule leads
to instances where a negligent party is liable for both the direct
trivial foreseeable damage and all unforeseeable and grave
consequences too. This takes the law beyond the principle that a
man should be liable for the probable consequences of his
actions. The prior rule has led to much confusion and inconsistent
results in the law. In some cases, the negligent actor is held
responsible for results that might be natural or probable and are
therefore deemed to be foreseeable to the reasonable man, when
they are in fact not foreseeable. The Defendant is liable for the fire
if the injury by fire is a foreseeable consequence of their
negligence.
(2) Overseas Tankship (U.K.) Ltd. V. Miller Steamship Co. Wagon Mound
No. 2 - The defendants are the owners of the vessel Wagon Mound,
which was moored 600 feet from a wharf. The plaintiffs are owners of
ships docked at the wharf. Due to the defendants negligence, furnace oil
was discharged into the bay causing minor injury to the plaintiffs ships.
However, the oil was then ignited when molten metal dropped from the
wharf and came into contact with cotton waste floating on the waters
surface. The fire that resulted seriously damaged the wharf and two of the
plaintiffs ships.
(a) Rule - If a party did nothing to prevent the injury, he is liable for the
foreseeable consequences of his actions, even if the
consequences are remote.
(b) More - If a reasonable man can foresee and prevent the risk, then
he is liable for the foreseeable damages. Based on the trial courts
findings, it is true that the Wagon Mounds operators would have
foreseen that oil spilling into the harbor had a possibility of causing
a fire, but would have only a very low probability. A fire could only
result under exceptional circumstances. However, because the
risk of fire was foreseeable, the defendants bore a duty to prevent
the risk, even if the risk was a remote possibility.
(3) Palsgraf v. Long Island R.R. Co. - The Plaintiff was standing on a railroad
platform purchasing a ticket, when a train stopped and two men ran
forward to catch it. One of the men nearly fell, and two railroad employees
attempted to help him. In the process, a package containing fireworks fell
and the contents exploded. As a result of the explosion some scales at
the other end of the platform fell and struck the Plaintiff. Plaintiff sued and
a jury found in her favor. The Appellate Division affirmed this decision, but
the Court of Appeals of New York reversed.
57

(a) Rule - To recover for negligence, the plaintiff must establish each
of the following elements: duty, standard of care, breach of duty,
cause-in-fact, proximate cause (scope of liability) and damages.
(b) More - The court reversed the appellate court judgment and
dismissed the complaint. Plaintiff must show that some wrong was
done to herself, i.e., that there was a violation of her own rights,
not merely a wrong done to someone else. In this case, there was
nothing to indicate that the package contained fireworks, and if
dropped, would cause an explosion. The guards, who were
assisting the passenger on the train, were negligent in doing so,
and caused the package to be dislodged, which fell causing an
explosion. The explosion caused some scales at the other end of
the platform to fall, striking Plaintiff. The guards were not negligent
in relation to the Plaintiff, who was standing far away when the
package was dropped. If the court had decided that Defendant
was negligent in respect to the Plaintiff, then the majority
concludes that a defendant would be liable for any and all
consequences of its negligence, however novel or extraordinary.
5. Intervening Causes
a) Overview
(1) A force that comes into play after the original negligent actor has acted
(2) R3T 34
(a) When a force of nature or an independent act is also a factual
cause of harm, an actors liability is limited to those harms that
result from the risks that made the actors conduct tortious.
b) Diagramming
(1) [Original Negligent Actor] [Intervening Cause] [Result/Harm]
(a) Question posed: Does the intervening cause relieve the original
negligent actor of liability?
(i)
If yes, its called a superseding cause
(b) It is not necessary that the precise manner in which the harm was
caused be foreseeable
(i)
Just a general nature of the manner of the harm be
foreseeable
c) Types of Intervening Causes
(1) Acts of third persons (negligent or not)
(a) Hypo: Flaming rat case. Defendant is required to provide a safe
place to work. Plaintiff (defendants employee) is cleaning a coin
operated vending machine with gasoline in a small room in which
there was a lighted gas heater with an open flame. While plaintiff
was working, a rat escaped from the vending machine and ran to
take refuge under the heater, where its fur, impregnated with
gasoline fumes, caught fire from the flame. The rat returned in
haste and flames to its original hideout and exploded the gasoline
vapor inside the vending machine, injuring the plaintiff. Is
defendant liable?
58

(i)
Answer: yes. The intervening act of a flaming act does not

negate liability. It came as a result of the defendants
negligence in leaving gasoline in the same small room
where there was an open flame.
(b) Hypo: Radio station with an extensive teenage audience held a
contest that rewarded the first contestant to locate the disc jockey.
Two minors driving in separate cause attempted to follow the DJ
to his next stop. In the course of the pursuit, at speeds of 80MPH,
one of the minors negligently forced a car off the highway, killing
the driver. The radio station was sued for wrongful death. Result?
(i)
Answer: radio station is liable because it was reasonably
foreseeable that teenage drivers would race to follow the
DJ.
(2) Acts of God (forces of nature)
(a) Hypo: Gasoline spilled & lightning strikes it
(b) Hypo: McClurg borrows a car and keeps it overnight past
permitted time accidentally. Lightning strikes it overnight. Is
McClurg liable?
(i)
No. Its not reasonably foreseeable that a car would be
struck by lightning overnight as a result of keeping a car
past the permitted time.
(3) Criminal (intentional) acts of third persons
(a) Intervening acts that are unforeseeable, unusual, or highly
culpable may be outside the scope of the risk
(b) Intervening Criminal Acts are treated differently
(i)
Courts are more willing to consider them as superseding
causes
(c) When liability is imposed on an original negligent actor in an
intervening criminal act case?
(i)
When the risk that made the conduct negligent in the first
place was the risk of a criminal act
(d) It is probably impossible to state any comprehensive rule as to
when a defendant will be liable for the intervening criminal act of a
third person
(i)
R3T 34 & R2T 448-449
(a) Intervening acts that are unforeseeable, unusual, or
highly culpable may be outside the scope of the risk
(i)
Hypo: Defendant, who has leased floor
space in plaintiffs jewelry store, goes to the
store on a holiday and leaves the key in the
front door. Store was broken into. Is
defendant liable?
(ii)
Answer: Yes, the robbery came as a result
of the risk of the defendant
(iii)
Hypo: Security agency hires a security
guard with a criminal record for an
apartment complex. The guard used his
59
(iv)
(v)
(vi)
passkey to gain access to plaintiffs

apartment, where he assaulted her. Is the
security agency liable?
Answer: Yes. The intervening criminal act
was a foreseeable risk that the security
agency took, which was therefore
negligence
Hypo: While driving in a remote area,
drivers Firestone tires failed, rendering her
car inoperable. Driver was stranded, raped,
and murdered. Her parents sue Firestone
for wrongful death, alleging that defendants
should have foreseen that a defective tire
could expose drivers to criminal behavior. Is
Firestone liable?
Answer: No. The general awareness that
there are bad people in society who do bad
things is insufficient to establish
foreseeability.
d) Cases
(1) (Derdiarian v. Felix Contracting Corp.) - Dickens was driving eastbound
on the thoroughfare where Plaintiff was working on an excavation. The
driver suffered an epileptic seizure and lost consciousness, striking
Plaintiff. The driver was undergoing treatment at the time, but had failed
to take his medication that particular day. The automobile crashed
through a single wooden horse-type barricade, and struck an employee of
a subcontractor, who was propelled into the air. Upon landing, the
employee was splattered by boiling liquid enamel from a kettle. Plaintiff
and his wife sued the employer, Felix Contracting Corporation (Felix),
Dickens, and the contractor for negligence, (Defendants) claiming that the
employer failed to maintain a safe work site. Plaintiffs maintained that the
barrier should have covered the entire width of the excavation site, and
there should have been two flagmen present, as opposed to one. Felix
contended that Plaintiff was injured solely as a result of Dickens
negligence, because there was no causal link between Felixs breach of
duty and Dickens negligence.
(a) Rule - Foreseeability is the reasonable anticipation of the possible
results of an action. Proximate cause is determined by whether an
intervening act is a foreseeable consequence of the defendants
negligence. If it is not foreseeable, then it is a superseding act
which would sever the causal connection.
(b) More - On appeal, defendant employer argued that there was no
causal link between the employer's breach of duty and plaintiff's
injuries. The Court of Appeals of New York held that Plaintiffs
injuries were a foreseeable result of the risk created by the
employer. When the acts of a third person intervene between the
defendants conduct and the plaintiffs injury, the causal
60

connection is not automatically interrupted. Instead, it depends
upon whether the intervening act was a foreseeable consequence
of defendants negligence. If the intervening event is
unforeseeable, then it may be a superseding cause, which would
interrupt the causal connection between defendants negligence
and plaintiffs injuries. Whether an intervening act is foreseeable or
not is a question for the trier of fact. For a plaintiff to carry the
burden of proving a prima facie case of negligence, he must
generally show that the defendants negligence was a substantial
cause of the events that produced the injury. Plaintiff need not
demonstrate that the precise manner in which the accident
happened or that the extent of injuries was foreseeable.
Essentially, the foreseeable harm test requires (1) a reasonably
foreseeable result or type of harm, and (2) no superseding
intervening force. Further, an intervening act may not serve as a
superseding cause, and relieve an actor of responsibility, when
the risk of the intervening act occurring is the very same risk that
renders the actor negligent.
(2) Watson v. Kentucky & Indiana Bridge & RR Co. - The Defendant
railroads tank car filled with gasoline derailed and spilled its contents into
the street where the Plaintiff was a bystander. A third party struck a match
igniting the gasoline vapor and causing the explosion, which injured the
Plaintiff. There was conflicting testimony at trial over whether the third
party started the fire while lighting a cigar, or whether he dropped the
match with the intention of igniting the gas.
(a) Rule - If an intervening act is merely unforeseeable it does not
sever the liability of the primary negligent party. However, if the
intervening act is so unexpected or extraordinary that the primary
tortfeasor could not and ought not to have anticipated it, then
liability is severed.
(b) More - A foreseeable intervening act severs liability only if it is so
unexpected or extraordinary that the defendant could not and
ought not to have anticipated it.
(i)
* If the third party inadvertently lit the match, then the
negligence of the Defendant is a proximate cause of the
Plaintiffs injury because it is reasonably foreseeable that
someone might light a cigar on the street. In this instance
the explosion could not have occurred without the gasoline
first having been spilled.
(ii)
* If the act of the third party was intentional and done with
the purpose of lighting the gasoline, then the Defendant is
not liable because the Defendant could not have foreseen
that someone would maliciously light a match with the
purpose of causing an explosion. Because such an act is
not reasonably foreseeable, the Defendant had no way to
guard against it.
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Fall 2016 Torts Outline (McClurg)

Intentional Torts (Dignitary Torts)

Intentional Infliction of Emotional Distress

Defenses to Intentional Torts

Self Defense: is a privilege

Standard of care for Physical Handicaps

Standard of Care for Children

Standard of Care for Mental Handicaps

Professional Standard of Care (Medical Malpractice)

How to Avoid Professional Malpractice

Medical Malpractice Standard of Care Rule

Establishing the Professional Standard of Care

Fall 2016 Torts Outline (McClurg)

Elements of an Informed Consent Claim

Defenses to Informed Consent

Negligence Per Se (Violation of Statute)

Requirements of Negligence Per Se

Plaintiffs Burden in Civil Cases

Res Ipsa Loquitur

Post hoc ergo propter hoc

Problems in Determining What Party Caused the Harm

Proximate or Legal Cause

Proximate Causation Approaches

Fall 2016 Torts Outline (McClurg)

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Yes, damages caused by a trespasser need not be

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Defenses to Intentional Torts

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Fall 2016 Torts Outline (McClurg)

Fall 2016 Torts Outline (McClurg)

Fall 2016 Torts Outline (McClurg)

Fall 2016 Torts Outline (McClurg)

Fall 2016 Torts Outline (McClurg)

In order to sustain a verdict for the plaintiffs in an action for

Fall 2016 Torts Outline (McClurg)

Fall 2016 Torts Outline (McClurg)