2644 Bickel Torts Spring 2014

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PROFESSOR ROBERT BICKEL

TORTS
SPRING 2014
I. FUNDAMENTAL CONCEPTS
A. FUNCTIONS AND PURPOSES
1. Doctrine, Policy, Purposes

a. LEGAL POSITIVIST: the law is only the rules that have been
expressly enacted into law by a govt entity
b. LEGAL REALISM: law is more than what is written must use
logic policy is not included in legal doctrine
2. Policy Objectives
***3 interrelated strands of common law adjudication and change
a. Doctrine: formal, conventional expression of law through
rules and standards
i. Restatements black letter, precedent
b. Moral Argument/Justification: moral argument supporting a
decision why one rule is preferred to another
c. Social Vision: perceptions of courts about accidents, about the
socioeconomic context for the resolution of accident claims,
and about the character and capacities of the victims and
defendants before them
i. Empirical statements, observations about social actors,
evaluative characterizations of social life, and
understandings of older/prevailing ideologies
3. Optimal Deterrence, Risk and Insurance

a. Torts is designed to deter wrongful/harmful conduct
b. Give advantage to those who take risks without injuring others
c. Need calculable liability
d. Want optimal deterrence not deterrence at large
i. Dont deter anything that might lead to harm
ii. Deter behavior that has disproportionate risk
iii. Some risks are worth taking
iv. Can be general or specific
4. General Deterrence: deterring all individuals, businesses, govt and

organizations from committing a torts
a. Cant do this perfectly just want to do it strong as possible
b. Cant be deterred by something one is unaware
1
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i. Dont know the torts or the rules

ii. Need h igh profile cases to inform public
1. No guarantee of it or its accuracy
iii. In order to deter tortious conduct, NEED tortious
conduct to publicize
c. Dont want over-deterrence people refrain from acceptable
conduct bec they think theyll be tortuously liable
d. Most torts are committed negligently people arent acting
intentionally
5. Specific Deterrence: deterring an individual tortfeasor from
committing the same tort
a. Tortfeasor knows the law bec hes been found liable
b. Issue is whether sanction is effective to deter in the future
c. 2 groups of tortfeasors that are inevitably repeat players
i. Large corporations
ii. Liability insurers
1. Acknowledge theyll be engaging in risky
behavior so have conditions the insured must
adhere to
6. Economic Efficiency: Evaluating Risk

a. Conduct is worthwhile if money to be made > potential costs;
unacceptable if potential costs < potential profit
i. Moral objection to ^^^: optimal shouldnt just be a
financial calculus
1. ^ Countered with: there must monetary value to
determine damages
ii. Impossible to predict certainly the likelihood that harm
will occur or its severity
iii. Risk of harm is subjective
7. Distributive Justice (aka loss distribution)

a. Transfer cost of harm or loss to those who can afford it best
i. Person/business with best liability insurance
1. Then insurance company pays and raises
premiums to cover costs
b. Results in everyone paying a little of the cost instead of one
person bearing all
8. Boundary Maintenance
a. The law should differentiate clearly between right and wrong
and set boundaries for socially acceptable conduct
i. Still need tortious conduct for lines to be drawn
2
9. Denunciation or Stigmatization: society may blame, denounce, or

stigmatize the tortfeasor
a. Limitations:
i. Relies on publicity
ii. Cant stigmatize someone when its not understood
what that person has done wrong
10. Appeasement of Vengeance

a. Provides a day in court to victims to provide vengeance
b. Avoids taking law into their own hands
11. Retribution: tortfeasors be punished according to their degree of

wrongdoing
a. Problematic w/negligence
b. Doesnt make sense to punish accident person didnt choose
to have an accident doesnt have the mens rea
c. Plaintiffs are typically only awarded compensatory damages
for harm suffered
i. Level of harm sustained isnt proportionate to degree of
defendants misconduct that caused harm
12. Compensation
a. Cannot recover if cannot prove by preponderance of evidence
that D caused injury and did so in a manner that fulfills
requirements of a specific tort
b. Difficult for the following Ps to recover even though harmed
i. Unable to prove who caused harm
ii. Unable to prove that the person who caused harm was
at fault in doing so
iii. Unable to prove that the person who caused harm, even
though at fault, owed them a duty to avoid doing so
iv. The person who caused the harm is legally immune
from being sued for doing so, irrespective of the nature
of his conduct
v. Person who caused harm may have no money or
liability insurance
c. Lump payments for compensation may undermine adequate
compensation bec the injury may be healed by the time award
is made or cannot be estimated bec the injury is
continuing/worsening
13. Corrective Justice

a. Restore moral equilibrium
i. Tortfeasor pays appropriate compensation to victim
ii. Make victim whole after his injury
3
b. Little to no relation to actual tort law

i. Hardly ever the case the tortfeasor meets the cost of any
compensation
ii. Restoring equilibrium suggests there was equilibrium
beforehand and that it can actually be restored
c. Civil recourse recovery: the fact that D wronged P is important
bec it recognizes Ps right of action against D
14.Redress of Social Grievances

a. Provides means for holding powerful people accountable for
their wrongdoing
b. Powerful tool for social change not often used
15. JAire Corp. v. Gregory

a. Facts:
i. Restaurant owner sued for loss profits when Ds
negligent slow repair work caused lost profit
b. Holding:
i. P can recover loss of expected profit from D when
special relationships exists
ii. Factors to consider for special relationship:
1. Extent to which transactions was intended to
affect P
2. Foreseeability of harm to P
3. Moral blame attached to Ds conduct
4. Degree of certainty that P suffered injury
5. Closeness of connection between Ds conduct
and injury suffered
6. Policy of preventing future harm
iii. 3 part foreseeability test:
1. Instances where the risk of harm is foreseeable
and closely connected to Ds conduct
2. Where damages arent wholly speculative
3. Injury is not part of Ps ordinary business risk
16.Scibelli v. Pennsylvania RR Co.

a. Facts:
i. Ps child was hurt while playing on Ds railroad yard
b. Rule:
i. Playground doctrine: where an owner permits kids to
use premises as playground, he has duty to care to keep
premises safe
c. Holding:
4
i. Playground doctrine triggers where the owner has

affirmatively acquiesced to the lands use as a
playground
ii. Tacit assent is not sufficient unless assent is so blatant
B. VICARIOUS LIABILITY
1. What is Vicarious Liability?

a. Created to address when someone at work (who likely doesnt
have the means to pay) carelessly injures another employee
b. Makes one person legally responsible for a tort committed by
another
c. VL forms a bridge to the D organization with sufficient wealth or
liability insurance to meet claim for damages
d. Not a defense to individual whose actions caused injuries
i. Victim can bring claim against both primary tortfeasor and
the one VL
e. EX: employer liable for employees tort, owner liable for
someone driving his cars actions
f. Must rely on liability insurance made accessible through VL
since first party insurance is only limitedly available
2. Joint and Several Liability

a. Several means each party can be sued individually for total
damages sought by victim
b. Joint means either D can legitimately be pursued for 100% of the
total damages victim cant recover > 100%
i. Each joint tortfeasor owns 100% of the injury
c. Doctrine that helps ensure victims are able to pursue
appropriate remedy
3. Employers and Employees

a. Most important circumstance where VL applies when
employer is responsible for tort by an employee acting in course
of employment
b. Respondeat superior: let the master answer -boils to 2 questions
i. Was the direct tortfeasor an employee of the employer

whom victim is seeking to hold VL?
1. Employee v. Independent Contractor

A. Control test: looks at amount of control
employer has over worker
B. Label test: looks at regular pay schedule or
being paid for one specific job
5
C. Integration test: looks at amount of

integration into employers business how
does the relationship look to 3rd
parties
2. Medical Practitioners
A. Typically any surgeon who is an independent
contractor to a hospital is treated as that in
court so a patient who suffers from his
negligence will be unable to make claim
against hospital thru VL
B. Other courts may deem surgeon agent of
hospital
C. US doesnt not employ non-delegable duty of
reasonable care to patients
D. Roessler v. Novak
i. Facts:
a. P (patient) brought suit against
D (doctor) for negligent
misinterpretation of scans
b. P claimed hospital was VL
ii. Rule:
a. A principal may be VL for
agents actions, if the actions
are in a scope of the agency
iii. Holding:
a. A hospital may be VL for an
independent contractor if he
acts in apparent authority of
hospital
3. Negligent Hiring & Supervision

A. Employer can be directly liable for injury by
independent contractors tort when there is
negligent hiring/supervision
i. Choice of contractor was
unreasonable/inadequate supervision
ii. Can t outsource work and expect to
automatically be free of liability
a. Duty changes from ensuring
job is performed reasonably to
duty ensuring contractor has
been chosen reasonably
ii. If so, was the employee acting in the course of his

employment?
6
1. Not as clear today as many employees have greater

opportunity to choose how to carry out tasks
2. Scope of acting in course of employment is broad
3. Taber v. Maine
a. Facts:
i. D (sailor) drank and drove off base
while on active duty and injured P
(another sailor)
ii. P brought claim under FTCA said govt
was VL for Ds act
b. Rule:
i. FTCA allows claims againt negligent
acts or omissions of employees in the
services of those acting in line of duty
or scope of employment
c. Holding:
i. Govt was VL for D bec a drunken
sailor who causes harm is reasonably
foreseeable and not unfair to put cost
on govt
ii. Govt cant disclaim responsibility for
accidents which may be fairly said to
be characteristics of its activities
4. Lister v. Hesley Hall Ltd.

a. Facts:
i. Boys were molested by warden of
boarding house
b. Rule:
i. Employer doesnt have to authorize
the wrongful act or mode
c. Holding:
i. Wardens torts were closely
connected to his employment so it is
fair to hold employer VL
II. NEGLIGENCE- treat Ds state of mind as irrelevant absence of conscious

thought lack of attention established negligence
A. DUTY OF CARE
1. Personal Autonomy
a. Torts emerged to protect from harm by actions of others
b. Law presumes parties knew of risks they could of reasonably
foreseen
7
2. Foreseeability: whether a reasonably prudent person wouldve

anticipated that the injury would result from the non (performance)
a. Intent in negligent torts is if harm is reasonably foreseeable
b. If a particular event couldve been reasonably foreseen, the D
would be in a position to consider it and decided whether to
proceed or modify behavior power to avoid evil
c. Using foreseeability achieves 4 functions:
i. Prevented parties from abandoning an obligation by
asserting he hasnt considered that matter
ii. The law could avoid suggestion of that subjective bias
since the risks were objectively apparent
iii. Encouraged Ds to consider consequences of their
conduct and plan/modify accordingly
iv. Never needed to choose what to enforce since it already
demanded everyone act reasonably
d. It must be foreseeable that:
i. The Ds conduct would cause harm
ii. The victim would be injured
iii. The harm would be of the form that actually occurred
e. If Ds conduct couldnt be foreseen to cause harm or victim
or nature of injury were unforeseeable, then victim cannot
succeed in negligence!
3. Elements of a Prima Facie Case *** SEE FLOWCHART

a. Duty of care: to show victim was foreseeable
b. Breach of duty: to show it was foreseeable ds conduct would
cause harm
c. Causation of victims injury by Ds conduct: bec otherwise
there would be no reason to sue this D
d. Harm sustained by the victim: must be foreseeable
provides measure of compensation
- Proof of prima facie case doesnt make D liable can still offer
affirmative defense
- Each elements must be individually foreseeable
- Elements are inter-dependent
4. Duty of Care
a. Foundation on which negligence is built
i. Always a question of law
ii. Court decides if duty exists and lays down standard of
care which Ds conduct is measured
1. Jury decides if standard was attained
b. Makes prior determination of whether D owed duty
i. Does the relation between parties warrant an obligation
of care for the benefit of the other?
8
ii. DOES NOT expose a person to potential liability

iii. DOES n ot spell out what the nature of that persons
obligation must be
c. Enables some people to escape liability for negligence bec they
owed no duty
i. Dont want indeterminate liability
d. Standard of care deals with issue of nature of that duty
owed
i. Only comes into play after its established there is a duty
5. Ultramares Corp. v. Touche

a. Facts:
i. D accountant made balance sheet of company and sent
certified copies to companies upholding validity of
statement even though company lied on balance sheet
b. Rule:
i. When a D is employed under a k to review and make
statements about worth of a business, hes not liable for
negligent misrepresentations made to any plaintiff
besides parties in the k
c. Holding:
i. D had duty to inspect reports he certified so he owed
duty to inspect the reports and owed duty to P and
could be liable for fraud
ii. A 3rd
party not in privity may not sue an accountant for
damages sustained for damages sustained by negligent
reporting but may bring suit for damages if there is
fraudulent reporting
6. Palsgraf v. Long Island Railroad Co.

a. Facts:
i. Woman standing on RR platform was hit with explosion
from mans fireworks package that fell when guard
helped him onto the train
b. Rule:
i. A duty that is owed must be determined from the risk
that can be reasonably foreseeable under the
circumstances
ii. A D owes a duty of care only to those who are in the
reasonably foreseeable zone of danger
c. Holding:
i. Guard was wrongful in relation to man with package
but not woman on platform far away
ii. Guard couldnt foresee injury to P so didnt breach any
duty to her
9
7. No Duty Rules
a. Sometimes theres no duty even before facts are considered
b. Most effective way courts can control incidence of liability bec
no duty rules keep issues from juries
8. McCain v. Florida Power
a. Facts:
i. P was using trencher in a yard that was marked safe by
D when he hit a electrical cable
b. Rule:
i. Where a Ds conduct makes a foreseeable zone of
risk, there is a duty placed upon the D to lessen the
risk or see that precautions are taken to protect
others from the harm the risk poses.
1. As risk grows, duty grows
ii. When there is a breach of this duty, and injury is
proximately caused by it, D is liable for negligence
1. Use substantial factor test: whether contribution
of partys act was relatively compared with other
but-for causes in producing harm suffered by P
c. Holding:
i. Ps injuries were proximately caused by a breach of
duty imposed by law
9. Zone of Danger
a. The way courts apply foreseeability to duty of care is 2 steps
i. Must identify an area of zone of danger or risk that was
at risk bec of the direct tortfeasor
ii. Anyone in that zone was owed a duty of care
b. Facts relevant to establish if duty was owed:
i. Nature of Ds conduct - the risk it creates defines zone
ii. Where P was when injured bec must know if he was in
the zone
c. Zone of danger only appropriate in some cases
10. Macpherson v. Buick

a. Facts:
i. D manufactured cars and bought wheels from another
company then he sold car to P
ii. P was in car when it collapses due to defective wheels
b. Rule:
i. If a manufacturer is supplying a good which a danger
can be foreseen if construction is defective, then there is
a cause for negligence
1. Nature of product must be likely to place
life/limb in danger if negligently made
10
2. Must be knowledge that in the usual course of

events, danger will be shared by other people
than just the buyer
c. Holding:
i. It couldve been reasonably foreseen by D that P would
be injured by a defect in the wheels therefore a duty
was owed
11. Mussivand v. David

a. Facts:
i. Ps wife had affair w/ D who infected her with an STD
ii. Ps wife infected P
b. Rule:
i. Person w/STD or reasonably knows they have one has a
duty to abstain from sex or warn partners
ii. A person is liable for transmission of STD to third party
if third party is the spouse of the paramour.
iii. Duty to spouse is extinguished once paramour knows
about the STD
c. Holding:
i. D shouldve foreseen that the wife wouldve gotten the
STD and given it to P
12. Differing Conceptions of Duty

a. Must use different tests for duty of care for different
circumstances according to differing policy concerns
b. Not clear which tests are to be used in which circumstances
i. Tests for economic loss and emotional loss are more
rigorous than for physical harm
c. Deciding whether there is a duty takes into account factors
***SEE MAP
13. Aikens v. Debow

a. Facts:
i. Business owners sued D for economic loss bec bridge
closed bec of Ds truck
b. Rule:
i. Cannot recover for pure economic loss from an
interruption in commerce caused by someones
negligence without contract or special relationship
14. Curd v. Mosaic Fertilizer

a. Facts:
i. P had economic/reputation loss bec they couldnt fish
where the D spilled pollutants
11
b. Holding:
i. D had duty to everyone in zone of risk
ii. P had special interest within that zone not shared w/
the general community
iii. So D was obligated to exercise prudent foresight and
take sufficient precautions to protect Ps special interest
B. EMOTIONAL DISTRESS
1. Impact Rule
a. Claims regarding emo distress skepticisms
i. Difficult to identify objectively when someone suffers
emo distress
ii. Even if it can be established, unclear how it can be
measured objectively to know what damages are
appropriate
iii. Opens door to fraudulent claims
b. SO emo distress claims can only be brought as form of pain and
suffering consequent on personal injury
c. Impact rule: additional requirement to recover for emo
distress must show clear connection between Ds behavior
and victims injury
2. Willis v. Gami Golden Glades PROFESSOR ROBERT BICKEL

TORTS
SPRING 2014
III. FUNDAMENTAL CONCEPTS
C. FUNCTIONS AND PURPOSES
17. Doctrine, Policy, Purposes

a. LEGAL POSITIVIST: the law is only the rules that have been
expressly enacted into law by a govt entity
b. LEGAL REALISM: law is more than what is written must use
logic policy is not included in legal doctrine
18. Policy Objectives

***3 interrelated strands of common law adjudication and change
a. Doctrine: formal, conventional expression of law through
rules and standards
i. Restatements black letter, precedent
12
b. Moral Argument/Justification: moral argument supporting a

decision why one rule is preferred to another
c. Social Vision: perceptions of courts about accidents, about the
socioeconomic context for the resolution of accident claims,
and about the character and capacities of the victims and
defendants before them
i. Empirical statements, observations about social actors,
evaluative characterizations of social life, and
understandings of older/prevailing ideologies
19. Optimal Deterrence, Risk and Insurance

a. Torts is designed to deter wrongful/harmful conduct
b. Give advantage to those who take risks without injuring others
c. Need calculable liability
d. Want optimal deterrence not deterrence at large
i. Dont deter anything that might lead to harm
ii. Deter behavior that has disproportionate risk
iii. Some risks are worth taking
iv. Can be general or specific
20.General Deterrence: deterring all individuals, businesses, govt and

organizations from committing a torts
a. Cant do this perfectly just want to do it strong as possible
b. Cant be deterred by something one is unaware
i. Dont know the torts or the rules
ii. Need high profile cases to inform public
1. No guarantee of it or its accuracy
iii. In order to deter tortious conduct, NEED tortious
conduct to publicize
c. Dont want over-deterrence people refrain from acceptable
conduct bec they think theyll be tortuously liable
d. Most torts are committed negligently people arent acting
intentionally
21. Specific Deterrence: deterring an individual tortfeasor from
committing the same tort
a. Tortfeasor knows the law bec hes been found liable
b. Issue is whether sanction is effective to deter in the future
c. 2 groups of tortfeasors that are inevitably repeat players
i. Large corporations
ii. Liability insurers
1. Acknowledge theyll be engaging in risky
behavior so have conditions the insured must
adhere to
22. Economic Efficiency: Evaluating Risk
13
a. Conduct is worthwhile if money to be made > potential costs;

unacceptable if potential costs < potential profit
i. Moral objection to ^^^: optimal shouldnt just be a
financial calculus
1. ^ Countered with: there must monetary value to
determine damages
ii. Impossible to predict certainly the likelihood that harm
will occur or its severity
iii. Risk of harm is subjective
23. Distributive Justice (aka loss distribution)

a. Transfer cost of harm or loss to those who can afford it best
i. Person/business with best liability insurance
1. Then insurance company pays and raises
premiums to cover costs
b. Results in everyone paying a little of the cost instead of one
person bearing all
24.Boundary Maintenance
a. The law should differentiate clearly between right and wrong
and set boundaries for socially acceptable conduct
i. Still need tortious conduct for lines to be drawn
25. Denunciation or Stigmatization: society may blame, denounce, or

stigmatize the tortfeasor
a. Limitations:
i. Relies on publicity
ii. Cant stigmatize someone when its not understood
what that person has done wrong
26. Appeasement of Vengeance

a. Provides a day in court to victims to provide vengeance
b. Avoids taking law into their own hands
27. Retribution: tortfeasors be punished according to their degree of

wrongdoing
a. Problematic w/negligence
b. Doesnt make sense to punish accident person didnt choose
to have an accident doesnt have the mens rea
c. Plaintiffs are typically only awarded compensatory damages
for harm suffered
i. Level of harm sustained isnt proportionate to degree of
defendants misconduct that caused harm
28. Compensation
14
a. Cannot recover if cannot prove by preponderance of evidence

that D caused injury and did so in a manner that fulfills
requirements of a specific tort
b. Difficult for the following Ps to recover even though harmed
i. Unable to prove who caused harm
ii. Unable to prove that the person who caused harm was
at fault in doing so
iii. Unable to prove that the person who caused harm, even
though at fault, owed them a duty to avoid doing so
iv. The person who caused the harm is legally immune
from being sued for doing so, irrespective of the nature
of his conduct
v. Person who caused harm may have no money or
liability insurance
c. Lump payments for compensation may undermine adequate
compensation bec the injury may be healed by the time award
is made or cannot be estimated bec the injury is
continuing/worsening
29. Corrective Justice

a. Restore moral equilibrium
i. Tortfeasor pays appropriate compensation to victim
ii. Make victim whole after his injury
b. Little to no relation to actual tort law
i. Hardly ever the case the tortfeasor meets the cost of any
compensation
ii. Restoring equilibrium suggests there was equilibrium
beforehand and that it can actually be restored
c. Civil recourse recovery: the fact that D wronged P is important
bec it recognizes Ps right of action against D
30.Redress of Social Grievances

a. Provides means for holding powerful people accountable for
their wrongdoing
b. Powerful tool for social change not often used
31. JAire Corp. v. Gregory

a. Facts:
i. Restaurant owner sued for loss profits when Ds
negligent slow repair work caused lost profit
b. Holding:
i. P can recover loss of expected profit from D when
special relationships exists
ii. Factors to consider for special relationship:
15
1. Extent to which transactions was intended to

affect P
2. Foreseeability of harm to P
3. Moral blame attached to Ds conduct
4. Degree of certainty that P suffered injury
5. Closeness of connection between Ds conduct
and injury suffered
6. Policy of preventing future harm
iii. 3 part foreseeability test:
1. Instances where the risk of harm is foreseeable
and closely connected to Ds conduct
2. Where damages arent wholly speculative
3. Injury is not part of Ps ordinary business risk
32.Scibelli v. Pennsylvania RR Co.

a. Facts:
i. Ps child was hurt while playing on Ds railroad yard
b. Rule:
i. Playground doctrine: where an owner permits kids to
use premises as playground, he has duty to care to keep
premises safe
c. Holding:
i. Playground doctrine triggers where the owner has
affirmatively acquiesced to the lands use as a
playground
ii. Tacit assent is not sufficient unless assent is so blatant
D. VICARIOUS LIABILITY
4. What is Vicarious Liability?

a. Created to address when someone at work (who likely doesnt
have the means to pay) carelessly injures another employee
b. Makes one person legally responsible for a tort committed by
another
c. VL forms a bridge to the D organization with sufficient wealth or
liability insurance to meet claim for damages
d. Not a defense to individual whose actions caused injuries
ii. Victim can bring claim against both primary tortfeasor and
the one VL
e. EX: employer liable for employees tort, owner liable for
someone driving his cars actions
f. Must rely on liability insurance made accessible through VL
since first party insurance is only limitedly available
16
a. Several means each party can be sued individually for total

b. Joint means either D can legitimately be pursued for 100% of the
total damages victim cant recover > 100%
ii. Each joint tortfeasor owns 100% of the injury
c. Doctrine that helps ensure victims are able to pursue
appropriate remedy
6. Employers and Employees

a. Most important circumstance where VL applies when
employer is responsible for tort by an employee acting in course
of employment
b. Respondeat superior: let the master answer -boils to 2 questions
iii. Was the direct tortfeasor an employee of the employer

whom victim is seeking to hold VL?
1. Employee v. Independent Contractor

D. Control test: looks at amount of control
employer has over worker
E. Label test: looks at regular pay schedule or
being paid for one specific job
F. Integration test: looks at amount of
integration into employers business how
does the relationship look to 3rd
parties
2. Medical Practitioners
E. Typically any surgeon who is an independent
contractor to a hospital is treated as that in
court so a patient who suffers from his
negligence will be unable to make claim
against hospital thru VL
F. Other courts may deem surgeon agent of
hospital
G. US doesnt not employ non-delegable duty of
reasonable care to patients
H. Roessler v. Novak
iv. Facts:
a. P (patient) brought suit against
D (doctor) for negligent
misinterpretation of scans
b. P claimed hospital was VL
v. Rule:
17
a. A principal may be VL for

agents actions, if the actions
are in a scope of the agency
vi. Holding:
a. A hospital may be VL for an
independent contractor if he
acts in apparent authority of
hospital
3. Negligent Hiring & Supervision

B. Employer can be directly liable for injury by
independent contractors tort when there is
negligent hiring/supervision
iii. Choice of contractor was
unreasonable/inadequate supervision
iv. Can t outsource work and expect to
automatically be free of liability
a. Duty changes from ensuring
job is performed reasonably to
duty ensuring contractor has
been chosen reasonably
iv. If so, was the employee acting in the course of his

employment?
5. Not as clear today as many employees have greater
opportunity to choose how to carry out tasks
6. Scope of acting in course of employment is broad
7. Taber v. Maine
a. Facts:
i. D (sailor) drank and drove off base
while on active duty and injured P
(another sailor)
ii. P brought claim under FTCA said govt
was VL for Ds act
b. Rule:
i. FTCA allows claims againt negligent
acts or omissions of employees in the
services of those acting in line of duty
or scope of employment
c. Holding:
i. Govt was VL for D bec a drunken
sailor who causes harm is reasonably
foreseeable and not unfair to put cost
on govt
18
ii. Govt cant disclaim responsibility for

accidents which may be fairly said to
be characteristics of its activities
8. Lister v. Hesley Hall Ltd.

a. Facts:
i. Boys were molested by warden of
boarding house
b. Rule:
i. Employer doesnt have to authorize
the wrongful act or mode
c. Holding:
i. Wardens torts were closely
connected to his employment so it is
fair to hold employer VL
IV. NEGLIGENCE- treat Ds state of mind as irrelevant absence of conscious

thought lack of attention established negligence
C. DUTY OF CARE
15. Personal Autonomy

a. Torts emerged to protect from harm by actions of others
b. Law presumes parties knew of risks they could of reasonably
foreseen
16. Foreseeability: whether a reasonably prudent person wouldve
anticipated that the injury would result from the non (performance)
a. Intent in negligent torts is if harm is reasonably foreseeable
b. If a particular event couldve been reasonably foreseen, the D
would be in a position to consider it and decided whether to
proceed or modify behavior power to avoid evil
c. Using foreseeability achieves 4 functions:
i. Prevented parties from abandoning an obligation by
asserting he hasnt considered that matter
ii. The law could avoid suggestion of that subjective bias
since the risks were objectively apparent
iii. Encouraged Ds to consider consequences of their
conduct and plan/modify accordingly
iv. Never needed to choose what to enforce since it already
demanded everyone act reasonably
d. It must be foreseeable that:
i. The Ds conduct would cause harm
ii. The victim would be injured
iii. The harm would be of the form that actually occurred
19
e. If Ds conduct couldnt be foreseen to cause harm or victim

or nature of injury were unforeseeable, then victim cannot
succeed in negligence!
17. Elements of a Prima Facie Case *** SEE FLOWCHART

a. Duty of care: to show victim was foreseeable
b. Breach of duty: to show it was foreseeable ds conduct would
cause harm
c. Causation of victims injury by Ds conduct: bec otherwise
there would be no reason to sue this D
d. Harm sustained by the victim: must be foreseeable
provides measure of compensation
- Proof of prima facie case doesnt make D liable can still offer
affirmative defense
- Each elements must be individually foreseeable
- Elements are inter-dependent
18. Duty of Care

a. Foundation on which negligence is built
i. Always a question of law
ii. Court decides if duty exists and lays down standard of
care which Ds conduct is measured
1. Jury decides if standard was attained
b. Makes prior determination of whether D owed duty
i. Does the relation between parties warrant an obligation
of care for the benefit of the other?
ii. DOES NOT expose a person to potential liability
iii. DOES not spell out what the nature of that persons
obligation must be
c. Enables some people to escape liability for negligence bec they
owed no duty
i. Dont want indeterminate liability
d. Standard of care deals with issue of nature of that duty owed
i. Only comes into play after its established there is a duty
19.Ultramares Corp. v. Touche

a. Facts:
i. D accountant made balance sheet of company and sent
certified copies to companies upholding validity of
statement even though company lied on balance sheet
b. Rule:
i. When a D is employed under a k to review and make
statements about worth of a business, hes not liable for
negligent misrepresentations made to any plaintiff
besides parties in the k
20
c. Holding:
i. D had duty to inspect reports he certified so he owed
duty to inspect the reports and owed duty to P and
could be liable for fraud
ii. A 3rd
party not in privity may not sue an accountant for
damages sustained for damages sustained by negligent
reporting but may bring suit for damages if there is
fraudulent reporting
20.Palsgraf v. Long Island Railroad Co.

a. Facts:
i. Woman standing on RR platform was hit with explosion
from mans fireworks package that fell when guard
helped him onto the train
b. Rule:
i. A duty that is owed must be determined from the risk
that can be reasonably foreseeable under the
circumstances
ii. A D owes a duty of care only to those who are in the
reasonably foreseeable zone of danger
c. Holding:
i. Guard was wrongful in relation to man with package
but not woman on platform far away
ii. Guard couldnt foresee injury to P so didnt breach any
duty to her
21.No Duty Rules
a. Sometimes theres no duty even before facts are considered
b. Most effective way courts can control incidence of liability bec
no duty rules keep issues from juries
22. McCain v. Florida Power
a. Facts:
i. P was using trencher in a yard that was marked safe by
D when he hit a electrical cable
b. Rule:
i. Where a Ds conduct makes a foreseeable zone of
risk, there is a duty placed upon the D to lessen the
risk or see that precautions are taken to protect
others from the harm the risk poses.
1. As risk grows, duty grows
ii. When there is a breach of this duty, and injury is
proximately caused by it, D is liable for negligence
1. Use substantial factor test: whether contribution
of partys act was relatively compared with other
but-for causes in producing harm suffered by P
c. Holding:
21
i. Ps injuries were proximately caused by a breach of

duty imposed by law
23. Zone of Danger
a. The way courts apply foreseeability to duty of care is 2 steps
i. Must identify an area of zone of danger or risk that was
at risk bec of the direct tortfeasor
ii. Anyone in that zone was owed a duty of care
b. Facts relevant to establish if duty was owed:
i. Nature of Ds conduct - the risk it creates defines zone
ii. Where P was when injured bec must know if he was in
the zone
c. Zone of danger only appropriate in some cases
24. Macpherson v. Buick

a. Facts:
i. D manufactured cars and bought wheels from another
company then he sold car to P
ii. P was in car when it collapses due to defective wheels
b. Rule:
i. If a manufacturer is supplying a good which a danger
can be foreseen if construction is defective, then there is
a cause for negligence
1. Nature of product must be likely to place
life/limb in danger if negligently made
2. Must be knowledge that in the usual course of
events, danger will be shared by other people
than just the buyer
c. Holding:
i. It couldve been reasonably foreseen by D that P would
be injured by a defect in the wheels therefore a duty
was owed
25. Mussivand v. David

a. Facts:
i. Ps wife had affair w/ D who infected her with an STD
ii. Ps wife infected P
b. Rule:
i. Person w/STD or reasonably knows they have one has a
duty to abstain from sex or warn partners
ii. A person is liable for transmission of STD to third party
if third party is the spouse of the paramour.
iii. Duty to spouse is extinguished once paramour knows
about the STD
c. Holding:
22
i. D shouldve foreseen that the wife wouldve gotten the

STD and given it to P
26. Differing Conceptions of Duty

a. Must use different tests for duty of care for different
circumstances according to differing policy concerns
b. Not clear which tests are to be used in which circumstances
i. Tests for economic loss and emotional loss are more
rigorous than for physical harm
c. Deciding whether there is a duty takes into account factors
***SEE MAP
27. Aikens v. Debow

a. Facts:
i. Business owners sued D for economic loss bec bridge
closed bec of Ds truck
b. Rule:
i. Cannot recover for pure economic loss from an
interruption in commerce caused by someones
negligence without contract or special relationship
28. Curd v. Mosaic Fertilizer

a. Facts:
i. P had economic/reputation loss bec they couldnt fish
where the D spilled pollutants
b. Holding:
i. D had duty to everyone in zone of risk
ii. P had special interest within that zone not shared w/
the general community
iii. So D was obligated to exercise prudent foresight and
take sufficient precautions to protect Ps special interest
D. EMOTIONAL DISTRESS
3. Impact Rule
a. Claims regarding emo distress skepticisms
i. Difficult to identify objectively when someone suffers
emo distress
ii. Even if it can be established, unclear how it can be
measured objectively to know what damages are
appropriate
iii. Opens door to fraudulent claims
b. SO emo distress claims can only be brought as form of pain and
suffering consequent on personal injury
23
c. Impact rule: additional requirement to recover for emo

distress must show clear connection between Ds behavior
and victims injury
4. Willis v. Gami Golden Glades

a. Facts:
i. P went to D hotel and there was no parking
ii. P was directed to park off site and assured of its safety
then she was held at gun point and robbed
b. Rule:
i. When P is touched in any way they can claim for emo
injury as result of Ds negligence and dont need to
apply impact rule
ii. Can recover for distress for fear of own physical safety
c. Holding:
i. P could recover for psychological trauma bec the robber
touched P
5. Ochoa v. Superior Court

a. Facts
i. Ps son died in juvi bec authorities refused to move him
to her doctor and denied his worsening condition
b. Rule
i. When P observes Ds negligent conduct and the injury
to the victim has a contemporaneous awareness that Ds
conduct caused injury then there is a cause of action
ii. Can recover for witnessing something happening to
someone else
c. Holding
i. Mother can recover for emotional distress from
watching her son deteriorate from lack of medical
attention while in juvi
6. Primary and Secondary Victims

a. Primary victim: those injured by someone elses negligence,
irrespective of what might or might not have happened to
anyone else
i. Can suffer consequent to own physical injury
ii. Can suffer bec they feared for their safety
b. Secondary victim: those who suffer injury bec of a prior injury
to someone else
i. Witnessed someone elses injury
c. Different requirements for duty of care for different victims
7. Consolidated Rail Corp. v. Gottshall
24
a. Facts
i. P observed coworker die and was instructed to keep
working while body was left at site
b. Rule
i. Zone of danger test
1. Limits recovery for employer negligence to
physical injury from emo distress
c. Holding
i. Employers arent liable for stressful conditions
8. Which Secondary Victims?

a. Three approaches to determine to whom a duty is owed
i. The household test: secondary victim must share home
with primary victim as domestic unit
1. Excludes fiancs that dont live together
ii. Presumptions approach: presumes parent, children
grandparents and grandchildren have relationship of
love and affecting with primary victim so duty owed
iii. Statutory list: lists those who are owed duty as
secondary victims no exceptions not in US
9. Thing v. La Chusa
a. Facts
i. Thing in accident w/ D and Things mother, P, ran over
and saw son lying bloody in street
b. Rule
i. A plaintiff may recover damages for emotional
distress caused by observing the negligently
inflicted injury of a third person if:
1. The plaintiff is closely related to the victim
2. Present at the scene of the injury when it
occurred, and
3. Aware that the victim was being injured.
10. Foreseeability to Proximity

a. Court requires proximity close connection between P and D
or close connection between primary and secondary victims
b. 3 notions of proximity:
i. Spatial proximity of space
ii. Temporal proximity of time
iii. Relational proximity of relationship
c. **SEE MATRIX to show proximity used for each harm
11. Potter v. Firestone Tire & Rubber

a. Facts
25
i. D disposed of toxins in landfill that seeped into

groundwater
b. Rule
i. A plaintiff may recover damages for fear of cancer alone
if the plaintiff proves that the defendants negligence
exposed the plaintiff to a carcinogen and the plaintiffs
fear stems from a knowledge that it is more likely than
not that the carcinogen will cause the plaintiff to
develop cancer in the future
ii. A plaintiff need not meet the more than likely
threshold if the plaintiff proves that the defendants
conduct was oppressive, fraudulent, or malicious.
c. Holding
i. P was exposed to substance that threatened cancer bec
of Ds negligence and was scared bec of medical and
scientific opinion shell probably get cancer
E. OMISSIONS
1. Nonfeasance: failure to act at all

2. No duty to rescue/aid even if it would be reasonably expected to
do so EXCEPT when: (bec theres proximity between D and victim)
a. Someone has voluntarily taken that obligation
b. D was under some other legal obligation which implies a
duty to act
c. Ds prior conduct was what imperiled victim in the 1st place
d. Premises liability cases where victim was invitee/licensee
3. Strauss v. Belle Realty Co.

a. Facts
i. A tenant went to the basement during power outage
and fell
ii. Power company had k with P and D for basement
b. Rule
i. Courts must fix an orbit of duty, which limits liability
to manageable levels, even where this may exclude
parties who would have been able to recover under
traditional tort principles.
c. Holding
i. Cant allow liability that extends past contractual
relationship
4. Tarasoff v. Regents of Univ. of California

a. Facts
26
i. Former patient of D murdered Ps daughter D

didnt warn P of danger
b. Rule
i. A duty of care may arise from either
1. A special relation between the actor and the
third person which imposes a duty upon the
actor to control the third persons conduct, or
other, which gives to the other a right of
protection.
c. Holding
i. The therapist owes legal duty to his patient, but also
to his patients would-be victim
5. Baker v. Fenneman
a. Facts
i. P walks into TB, faints, falls backwards and hits his
head. Employee might have offered help and he
might have said he's okay then employee goes back
behind counter.
ii. Baker then faints and falls again
iii. When he regains consciousness, he's choking on
blood and teeth, stumbles outside and calls for help.
b. Rule
i. When there is a special relationship, even if a
business did not cause the injury, you have a duty to
a standard of care not to make the injury worse.
c. Holding
i. Taco bell has a duty to rescue even though it was not
their fault the customer fell and hit his head.
F. PREMISES LIABILITY
1. An Anachronism
a. No place in the law of torts remains from property law
b. Premises liability cases occur when someone is physically
injured by a hazard situated on someone elses premises
i. Safety of the premises must be in question
otherwise what is done is just a matter of negligence
ii. Not really focused on whether D was negligent
c. Whether state of property matters, depends on status of
person injured or killed.
27
STATUS/DEFINITION DUTY OWED BY POSSESSOR

Invitee: someone who is on anothers 1. Make reasonable inspections of
premises for the actual or potential premises
economic benefit of the person in 2. Take reasonable steps to keep invitee
possession of the premises safe while on premises
3. Warn of dangers that arent obvious
and provide reasonable guidance on how
to avoid them
Licensee: someone who is lawfully on 1. NO duty to inspect
anothers premises, either for social 2. Take reasonable steps to keep licensee
reasons or to exercise a special legal safe from dangers on the premises which
power (arrest, mail, reading meter) the possessor knows or ought to know
3. Warn of known dangers that arent
obvious and provide reasonable
guidance on how to avoid them
Trespasser: someone who is unlawfully 1. NO duty to inspect
on anothers premises 2. Avoid causing wanton or willful harm
3. NO duty to warn, except in order to
avoid causing wanton or willful harm
2. Attractive Nuisance
a. Bennett v. Stanley
i. Facts
1. Child trespasses into neighbors yard and falls
into disgusting pool and drowns mom dies
trying to save him
ii. Rule
1. Attractive nuisance doctrine holds
possessors to a standard of reasonable care if
possessor knows or has reason to know of
the attractive nuisance
2. Children are viewed differently from adults
higher level of care
iii. Holding
1. A possessor of land is liable for harm to a
child trespasser caused by an artificial
condition if:
a. The possessor knows or has reason to
know that children are likely to
trespass near the condition,
b. The possessor knows or has reason to
know that the condition causes an
28
unreasonable risk of serious injury to

child trespassers,
c. The children because of their youth do
not discover the condition or
recognize the risk involved,
d. The utility of the condition to the
possessor and the cost of eliminating
the danger are slight compared to the
risk to child trespassers, and
e. The possessor fails to exercise
reasonable care in eliminating the
danger or in protecting the child
trespassers.
3. Judge of Jury?
a. Normal negligence cases allow jury to decide standard of
care
b. In cases of premises liability, duty is tied to standard of care
and court asserts the standard of care as a matter of law
i. Dont recognize pure economic loss or pure ED
ii. Must be physical injury including personal property
4. Wagner v. International Ry.

a. Facts
i. Man is thrown from train and his cousin is injured
when he went to look for his body
b. Rule
i. A defendant who negligently imperils and causes
injury to a person may also be liable for injuries
suffered by a third party in attempting to rescue that
person.
1. Not liable for injuries from unreasonable
rescue attempt
c. Holding
i. Whether the cousins rescue was due to Ds
negligence and whether the attempt to rescue was
reasonable are questions for jury
5. Rowland v. Christian
a. Facts
i. P was guest at Ds house and injured hand on broken
bathroom faucet
ii. D knew of damages but did not warn guests
b. Rule
29
i. The proper test for determining liability of a

landowner is whether in the management of his
property he has acted as a reasonable man given the
probability of injury to others
1. Although the plaintiffs status as a trespasser,
licensee, or invitee may have some bearing
on the question of the landowners liability,
this status alone is not determinative.
c. Holding
i. Social guest is entitled to warning of danger so they
can take precautions
G. STANDARD OF CARE & BREACH OF DUTY
1. Standard of Care
a. Sets the level of care against which the Ds conduct is
measured (provided duty is already established)
i. D has breached duty if he hasnt met this requisite
standard
1. Breach means D behaved unreasonably in
the circumstances and is at fault
2. Foreseeability Revisited
a. Foreseeability explains why someone should be liable for
causing injury which he didnt intend
i. If it was RF that a course of conduct would cause
harm to others, then that seemed to suggest that
continuing that behavior involved a breach of the
duty owed
b. Capitalism requires risks be taken so there cant be laws to
restrict risk
3. Reasonableness
a. The essence of standard of care is reasonableness
i. Standard of ordinary care or the standard of
care of a reasonably prudent person
ii. Jury is to consider conduct according to how it
appears to dispassionate observers
4. Risk Assessment
a. Employers/schools/organizations typically develop
policies/protocols to minimize likelihood that
employees/students/members will act unsafely
i. These are designed to make moments of
thoughtlessness less common by forcing people to
30
think through their actions or by making

reasonableness routine
ii. They provide a system of monitoring, supervision,
or peer review to act of failsafe to increase detection
before it causes harm
b. Concerns: people will worry over things that are unlikely or
policies may be over protective in preventing harm
i. Counter to ^^: make policies only dealing with
reasonably foreseeable risk, or severe harm or high
likelihood of harm
5. Bernier v. Boston Edison Co.

a. Facts
i. Woman was in car accident then accidently hit the
gas and hit an electric pole that fell and hit teens
ii. This pole had been hit before
b. Rule
i. To avoid negligence, a manufacturer must consider
the reasonably foreseeable risks of injury created by
a products use in its normal environment and
design the product to prevent an unreasonable risk
of such injuries.
c. Holding
i. Bec the pole had been hit before, it was foreseeable
it would be hit again
ii. Manufacturer has expertise so anticipation of its use
and its environment isnt unreasonable
6. Campbell v. Kovich
a. Facts
i. P was hit in the eye by something ejected from the
lawn mower on Ds premises
ii. Lawn was inspected before mowing
b. Rule
i. No requirement to exercise extraordinary care
nothing more than what a person of ordinary
prudence would exercise
c. Holding
i. D mowed lawn in reasonable manner and not
required to do more
7. Modifying the Standard of Care

a. Many situations require the jury to make judgments about
what was reasonable in situations where they might well
have little or no germane life experience
31
b. Situations may require the jury to apply a modified form of

the test for standard of care
i. Child, common carrier, professional defendants
8. Appelhans v. McFall
a. Facts
i. 5 y/o hit 66 y/o on his bike, she falls and breaks hip
b. Rule
i. Child under 7 incapable of negligence
ii. To prove negligent supervision:
1. Parents must know of past conduct to put
them on notice of childs acts likely occur
2. Parents had opportunity to control child
c. Holding
i. Holding parents strictly liable for failing to prevent
childs negligence is unreasonable
9. Connell v. Call-a-Cab, Inc.

a. Facts
i. P ordered AAA cab, cab driver assaults her
b. Rule
i. Common carriers are exceptions to rule that
employers arent liable for intentional torts of
employees or agents
1. Taxi cabs are common carriers
ii. Carrier owes a very high duty of care to protect
passengers from injuries from other passengers
of strangers and an even higher, absolute duty to
protect passengers from injuries by its own
servants
iii. Carrier can only escape liability for injuries to
passengers that werent unavoidable
iv. Duty imposes on common carriers cant be avoided
through use of independent contractors
c. Holding
i. Connell contacted AAA - not the driver - so AAA
agreed to provide and assumed duty which they
retained regardless of whether driver was employee
or independent contractor
10. Bruni v. Tatsumi

a. Facts
i. Establishes test for determining malpractice
b. Rule
32
i. Standard of care requires a doctor to do or not

do something as other doctors would have
reasonably done or not done under the same or
similar circumstances regardless of location.
11.In Loco Parentis

a. Person in question is acting in position of parent
i. Teachers, administrators
b. With power comes obligation to take care of pupils and
students to the same extent parent would.
i. Much different today bec society considers college
students adults not child of tender years
12. Cost-Benefit Analysis

a. In order to place value on things, juries have to compare
incommensurable entities to solve this problem give
everything common denominator of dollars
b. Not adopted by courts as means to apply standard of care
and breach or duty nor is it included in jury instruction
13. Defensive medicine
a. In fear of tort liability, some health care providers may
engage in defensive medicine
b. Over-deterrence and excessive precaution taking
14. Res Ipsa Loquitur

a. Sometimes it is literally impossible to prove every element
of negligence case. In such cases court may:
i. Rule for D as P didnt establish all elements
ii. Jury can draw appropriate inferences from facts that
are known
1. Res ipsa loquitur: the facts speak for
themselves
b. Infers negligence from the happening of the event and Ds
relation to it
i. Recognize what is known from everyday experience
ii. Some accidents cannot occur without negligence
c. Dont need to eliminate all other possible causes
i. Just need to show that likelihood of other causes is
reduced to show D is probably at fault
H. CAUSATION IN FACT
1. Factual and Proximate Cause

a. Causation: establishes causal connection between the D
breach of duty and victims harm
33
i. Proved with facts for jury to decide

ii. No use of foreseeability
b. Actual causation/factual causation/factual cause/cause
in fact: tests to enable jury on how to decide whether
causation is proved
c. Scope of liability: negligence causes series of
extraordinary and unpredictable untold harm to unfold;
scope limits what is morally justifiable to impose liability
i. Uses foreseeability
2. General and Specific Causation
a. 2 elements to factual causation
i. General: typically only relevant to products liability
cases not focusing on this!
1. Asks whether the breach is capable of
causing the harm sustained
ii. Specific: usually treated synonymous with factual
causation bec general is usually obvious
1. Asks whether Ds breach of duty actually
causes the harm sustained by the victim
b. Factual causation is matter of fact for jury to decide
i. Plaintiff proves on preponderance of evidence
ii. Jury may draw inferences
3. The But-For Test

a. Preferred method of determining cause!
b. Plaintiff proves harm wouldnt have happened BUT FOR the
Ds conduct wouldnt have been harmed if it werent for D
c. FLAWS:
i. P has to prove a negative show what did happen
by proving what wouldve happened if something
didnt occur cant know what wouldve happened
in other circumstances that didnt exist
ii. This test is focused on ascertaining THE cause of
someones injury rather than A cause
1. ***CANNOT use this test when injury is
caused by more than 1 factor at the same
time -- (2 bad drivers cause wreck to 3rd

party but for eliminates their causation bec
only one could be responsible)
a. Concurrent causes produce false
negative result!
d. USE THIS TEST W/OTHER TESTS TO PROVE FACTUAL
CAUSATION THEN USE IT FOR RHETORIC PERSUASION
4. Substantial Factor Test
34
a. Identifies A cause of the injuries

i. Recognizes there may be more than 1 cause
ii. Focuses on what actually happened not other
circumstances
b. Asks whether each D or Ps own conduct was one of the
factors that played a role in causing the victim harm

time)
5. Viner v. Sweet
a. Facts
i. P founded company and hired attorney that was not
licensed in their state
ii. Consequently, they signed bad k
b. Rule
i. Unless there are concurrent independent causes, the
plaintiff must show "but for" causation as with
attorney malpractice suits dealing with litigation.
c. EXAMPLE how courts avoid problems of but for test!
6. The NESS Test

a. Necessary Element of a Sufficient Set test: if multiple
acts occur, each of which would have been a factual cause
of the physical harm at the same time in absence of the
other acts, each act is the factual cause of the harm
b. Completely REJECTS substantial factor test
i. Treats but for as an alternative but logically should
reject it
c. This test sometimes treats something as cause of injuries
even if it was not
i. If something is a necessary element in a set of
conditions that would together bring the harm then
such an element is treated as A factual cause
ii. P wont be able to prove that the harm by the
innocent D was in his scope of liability
7. The Role of Inference

a. The jury is typically responsible for deciding whether D and
or the victim caused the injuries
b. Plaintiff must prove on the preponderance of evidence
show his argument is more likely to be right than wrong
c. Juries make decisions of factual causation on the basis of a
series of inferences
35
d. Evidence needs to be interpreted interpret events about

which there is evidence to determine which of those earlier
in the sequence are more likely than not to be the cause
i. May not be timeline of events so need to interpret
evidence to infer sequence
e. All inferences must be reasonably supported by evidence
and tested against competing accounts
i. Case, evidence, inferences are mutually enforcing
8. Res Ipsa Loquitur Revisited

a. Used when actual/specific cause is unknown the jury may
infer negligence from circumstances
b. The circumstances when res ipsa loquitur may be pleaded:
i. Cause of victims injuries must be unknown
ii. Harm sustained by victim was type that doesnt
occur without negligence
iii. D must have been in some relationship or activity
that she meant or had some control of victims safety
c. Jury is allowed to draw inferences in these circumstances
that D breached his duty and/or was cause of injury
9. Motions Practice
a. When one test cannot be utilized, it is likely that the fact
finder will draw inferences from known evidence
10. Increasing the Risk

a. Material increase in the risk test: used to prove risk was
increased even though cause of harm was unknown
i. McGhee v. National Coal Board: D failed to provide
adequate washing facilities for workers so it
increased the risk P would contract dermatitis
b. Loss of chance: analogous to material increase - Prevalent
where the cause of an injury is beyond current knowledge
of medical sciences

a. Wherever harm may have more than one cause and is
divisible, it is possible to say which D caused which harm
then pay for the harm caused by his negligence
b. When harm is INDIVISBLE, joint and several liability arises
i. Several: each party can be sued individually for total
ii. Joint: each D can be pursued for 100% but victim
cannot collect > than 100%
36
c. P will likely pursue D that is best able to pay to obtain

100% then that D will pursue other Ds for contribution
d. Walt Disney World Co. v. Wood: shows JSL undermines
important American businesses
i. Disney was liable for 86% of damages when they
were only cause for 1%
e. Many states have abolished JSL
i. Each concurrent tortfeasor is liable for amount
apportioned to their proportion of fault
ii. Not fair to hold someone liable for more than the
share of what they caused
1. Optimal deterrence: people should be liable
for consequences of own conduct
I. SCOPE OF LIABILITY
1. Why Proximate Cause?

a. Courts refer to scope of liability as proximate cause
b. Courts have been concerned with having too many D liable for too
many consequences difficulty finding cut off point for liability
c. Absence of the word cause in scope of liability is deliberate!
i. Requires P prove harm was within scope of harms for
which D could be properly held liable
2. The Wagon Mound

a. Facts
i. D poured oil from Ps wharf into bay causing minor
injury to Ps property then oil ignited and caused
serious damage
b. Rule
i. **DEFINES SCOPE of liability D is liable for harm he
caused when it is reasonably foreseeable not just a
natural consequence
c. Holding
i. Although the injury to Ps property was direct result of
Ds negligent conduct, D is not liable bec the
consequences were unforeseeable
3. Paslgraf Revisited
a. If consequences could not reasonably have been foreseen, then
there cant be moral justification for imposition of liability
4. Reasonable Foreseeability Revisited

a. Paslgraf doesnt provide basis for scope of liability
b. Scope of liability isnt concerned with cause!
37
i. It means in order for harm to be compensable, it must

be a reasonably foreseeable result
ii. At the time D acted, the harm wouldve been reasonably
foreseeable to another person in same position
5. The Wagon Mound 2

a. Facts
i. D spilled oil which caused fire and damaged ships
b. Rule
i. If a party did nothing to prevent injury, he is liable for
the foreseeable consequences of his actions even if they
are remote
c. Holding
i. Harm must be of a type that is reasonably
foreseeable in order to be compensable.
ii. If a reasonable man can foresee and prevent risk, he
is liable for foreseeable damages
6. Mechanism or Type of Harm?

a. Type of harm need be reasonably foreseeable for the harm to
be compensable
b. Type of harm in scope of liability is not the same thing as it
does for duty of care
c. Risk assessment determines relevant standard of care and
whether or not D breached its duty
i. Also identifies if there is breach what type of risk
negligent conduct will be running
1. These risks establish scope of liability
a. If someone is injured as result of this risk
occurring then the injury is compensable
7. Thompson v. Kaczinski
a. Facts
i. D left trampoline parts in his yard, thunderstorm blew
them into the road and P swerved and crashed trying to
avoid the parts
b. Rule
i. Scope of liability refers to risks present in a specific
situation
c. Holding
i. Liability is limited to physical harms that result from
risks that make an actors conduct tortious.
ii. Liability is NOT determined whether the actors conduct
was a substantial factor in causing harm.
38
iii. Should be determined by jury whether injury is within

risk of harms risked by the actions of the actor.
8. Mitchell v. Cedar Rapids Community School Dist.

a. Facts
i. P slipped on a wet pipe and injured herself when she
was trying to extinguish a fire at Ds facility
b. Rule
i. In order to be the legal cause of ones harm, Ds
negligence must be substantial factor brining the harm
c. Holding
i. Circumstances surrounding injury that are only
remotely related to injury arent the cause.
9. Eggshell Skull Rule (thin skull rule)

a. Defendants take their victims as they find them
b. Benn v. Thomas
i. Facts
1. P had history of heart disease and died of heart
attack 6 days after being in an accident caused
by D
ii. Rule
1. Eggshell rule requires D take P as he finds him,
even if he must compensate for harm an
ordinary person would not have suffered
iii. Holding
1. The eggshell instruction is equally a rule of
proximate cause.
10. Breach of Statutory Duty

a. Theres a presumption that in the absence of clear indication to
the contrary, fed law doesnt create private rights in torts
b. Restatement guide: the court may use standard of conduct of
reasonable man when the requirements of legislation are
i. To protect a class of persons which includes the one
whose interest is invaded and
ii. To protect the particular interest which is invaded and
iii. To protect that interest against the kind of harm which
has resulted and
iv. To protect that interest against the particular hazard
from which the harm results
c. If each of these 4 requirements are satisfied, the court can
rule that the Ds failure to comply with the legislation
amounted to a breach of duty NEGLIGENCE PER SE
39
11. Intervening Causes: something that contributes to the victims harm

either concurrently with, or after the Ds own conduct, which also
contributes to victims injuries
a. Supervening/superseding cause: If the intervening cause
breaks the chain of causation that links Ds behavior and harm
then there is not sufficient proximity to hold D liable
SUPERSEDING CAUSES INTERVENING CAUSES ONLY

(possible legally effective (legally ineffective breaks)
breaks)
Unreasonable conduct by 3rd
Reasonable conduct by 3rd
party party
Unreasonable conduct by P Reasonable conduct by the P
Nothing done by the D Anything done by the D
Unforeseeable act of God Foreseeable act of God
b. Superseding causes above occurrence are necessary but may

not be sufficient
12. Union Pump Co. v. Allbritton

a. Facts
i. Fire occurred at Ds facility. P was instructed to assist in
extinguishing it.
ii. After there was a leak, and P asked to help out.
iii. P followed other employee on unsafe route and fell
b. Rule
i. A successful negligence action involves showing that a
Ds negligent conduct proximately caused, or was a
substantial factor in brining about, the plaintiffs harm
c. Holding
i. If a defendants conduct does no more than furnish the
condition which makes the plaintiffs injury possible,
then legal causation is lacking.
J. HARM
1. Pain and Suffering

a. Being an involuntary patient is not pleasant so the law
recognizes that injuries are compensable
i. Loss of income bec surgery needed
ii. Reactions to medicines
b. 3 problems for awarding damages for pain and suffering
i. It is subjective people feel more or less pain
1. Makes it indeterminate cant predict in advance
how much P&S an injury may cause
40
ii. No objective way to prove a victim has sustained P&S

1. No objective way to prove how large P&S is
2. Cant decide how large award should be
iii. Potential for fraudulent claims
c. Much like emotional distress, which is more restrictive - tort
reform groups argue for statutory caps on non economic
damages
i. Caps are aimed at the high end but most problems are
on the low end claims
d. BUT P&S doesnt occur without prior physical injury
2. Wrongful Death & Survival Action

a. Survival statute: Most tort suits survive death of either party
and proceed to judgment
b. Wrongful death statutes: enable financial depends of
decedent victim to bring a case as if they were the decedent
i. If decedent doesnt have dependents, courts have
developed as a measure of damages the concept of
inheritance value instead of trying to calculate plaintiffs
financial dependency on decedent
c. These 2 statutes are brought by different categories of
plaintiffs and damages awarded are designed to compensate
for different types of loss
SURVIVAL ACTIONS WRONGFUL DEATH LOSS OF

ACTIONS CONSORTIUM
Brought by personal Brought by financial Brought by those who
representative of the dependent of the has a significant
victims decedents victim decedent relationship with the
estate primary or decedent
victim
Damages are to Damages are to Damages are to
compensate for harm compensate for compensate for the
sustained by the financial loss of the loss of
victim until his death dependents (other companionship,
including P&S losses like funeral services, and/or
expense) guidance and care of
the primary or
decedent victim
Any damages Damages are payable Damages are payable
awarded form part of direct to the direct to the relations
the decedents estate dependents themselves. If victim
themselves, and do has died, those
no form part of the damages dont form
decedents estate
41
part of decedents
estate
The costs of the Cost of action are Costs of action is
action are borne by borne by those borne by those
the estate brining the action brining the action
3. Yowell v. Piper Aircraft Corp.

a. Facts
i. Plane crash killed 2, P sued for loss of inheritance
b. Rule
i. Statutory beneficiaries may recover for loss of
inheritance as the present value that the deceased
would have added to the estate and left to the P at
natural death
ii. Subtract the decedents expenditures for himself and his
family from his gross future earnings
iii. If decedent wouldnt have earned more than he and his
family would have used for support then loss of
inheritance damages would be denied
4. Loss of Consortium
a. Claim brought by someone who had a close relationship with a
primary victim killed or injured by the Ds negligence for
compensation for the loss, or signigicant diminution of one or
more of the following:
i. Companionship with primary victim affection and
emo support
ii. Sex life w/primary victim
iii. Guidance and/or mentoring from primary victim
iv. Services provided by the primary victim (chores)
b. These claims may be brought when primary victim is alive
i. NOT a survival action
ii. Solely belongs to secondary victim
iii. Can be brought w/wrongful death action
c. Must show primary victim was injured so badly that
pre-existing relationship has been materially/detrimentally
altered
5. Prenatal Injuries
a. Law now allows for prenatal injury claims
b. States are split on whether wrongful death claims can be
brought for stillbirths of fetus that never reach viability
i. Wrongful death statutes typically preclude these claims
since it would be for a death of someone never born
42
c. Mothers cannot be held liable to child for negligently causing

prenatal injury
6. Wrongful Birth and Wrongful Life (Wrongful Conception)

a. Wrongful life is the term used to describe an action brought
by child whereas wrongful birth is used to describe action
brought by parents
b. Wrongful birth are similar to prenatal injury bec the fetus
suffers an injury before birth different bec:
i. Injury isnt caused by negligence, but maybe by accident
ii. Negligence occurs where medical professional
unreasonably fails to detect defect in timely manner so
mother has no opportunity to abort
c. Harm alleged in wrongful birth:
i. Cost to parents of bringing up disabled child
ii. Associated mental distress that may cause
iii. The pain and distress caused to the child of having to
endure what might be a miserable existence
d. Wrongful life: occur when vasectomy or sterilization
procedure is carried out so negligently the patient remains
fertile and conception occurs against parents wishes
e. Harm alleged in wrongful life:
i. Pain endured by mother while pregnant
ii. Medical costs of pregnancy
iii. Cost to parents of the upkeep and upbringing of a child
they didnt plan
iv. Emotional distress to parents at the fact of conception
v. Emo distress to parents at prospect of raising another
child especially if they are in dire financial need or
suffer a psychological disorder
vi. Emo distress to parents at prospect of termination
f. ISSUE: whether law should award compensation for the birth
of a human
i. Some states prohibit these claims
7. Procanik By Procanik v. Cillo

a. Facts
i. P was born with disease bec D didnt diagnose the
mother with German measles when she was pregnant
b. Rule
i. In a wrongful life suit, an infant may recover special
damages for the extraordinary medical expenses
attributable to his affliction, but not for general
damages for his emo distress or impaired childhood
43
8. Loss of a Chance
a. Very new and highly controversial
b. Instance where victim has 50% or less chance of survival, or
taking preventative/mitigating steps, even before the Ds
negligence played any part in causing harm suffered by victim
c. Traditionally: Wrongdoers could determine they would be
taking no risk at all when victim had less than 50% anyway
causes negligence wouldnt be liable if the victim has less
than 50%
d. Loss of chance: victim loses the chance of avoiding death
i. P must show that it is more than 50% likely that victim
lost that 30% chance of survival
ii. Awards are based on percentage of damages that would
have been awarded in regular personal injury claim
9. Mohr v. Grantham
a. Facts
i. D failed to exercise due care in diagnosing condition so
P lost chance at better health outcome
ii. Because Ps stroke wasnt diagnosed to later, P didnt
start treatment til later and became mentally disabled
b. Rule
i. P must prove duty, breach and that there was an injury
in the form of loss of chance caused by breach of duty to
recover for loss of chance in a medical malpractice case
c. Holding
i. Loss of chance of better outcome doctrine is extended
to medical malpractice cases in which the ultimate harm
to the patient is disability rather than death
K. DEFENSES
1. Comparative Fault
a. Partial defense except 5 states where its complete as
contributory negligence
b. Comparative fault means different things in different states
c. Two schemes of comparative fault
i. Pure scheme: apportions legal responsibility strictly
according to the fault of the relevant actors, including
the victim
ii. Modified scheme: works similar to pure but imposes a
threshold level of fault of the victim, at or above the
victim will be completely precluded from receiving
compensation
44
1. If victims fault was as much as the threshold,

then she is barred from claiming
2. Comparative Fault or Causation?

a. Victims injury must be indivisible for comparative fault
b. If victims injuries are divisible, causation applies so each
tortfeasor is liable for what he caused
3. Ravo v. Rogatnick
a. Facts
i. Either one or both doctors responsible for baby damage
b. Rule
i. When 2 or more tortfeasors act concurrently or in
concert to produce a single injury, they may be held
joint and severally liable
ii. When multiple tortfeasors dont act in concert or dont
contribute to the same wrong, they arent joint
tortfeasors.
1. Their wrongs are independent and successive so
each is responsible for their separate injuries
c. Holding
i. 2 doctors jointly and severally liable for brain damage
to P.
ii. Injury was indivisible but the jury allocated fault 80/20
between them.
iii. Comparative fault does not abolish J&S liability, but the
fault allocation can be used in contribution suit to
determine what each should pay
iv. P can recover full amount from either D.
4. Comparative Fault as a Sword, not a Shield

a. In Tobacco litigation, P attorneys have pleaded their clients
own comparative fault in continuing to smoke
i. This is to present to the jury a victim who DOESNT seek
to blame only the tobacco company for resultant cancer
ii. BUT a person who recognizes their own partial fault
iii. This makes the person someone who made a mistake
not a money scoundrel
iv. Also shows clients reasonableness
b. Chances of winning are enhanced bec its not all or nothing
5. Assumption of Risk
a. Apparently provides that if P took risk of particular activity
upon himself, then D cannot be liable for harm, loss, or injury
b. Supposed to be complete defense
45
c. Two forms of assumption of risk

i. Namely: P explicitly agrees to run the risk in question
ii. Implied: Ps conduct suggested he agreed to run the risk
d. Doctrine can be fundamentally incoherent
i. Public schools have parents sign waiver of liability for
negligent injuries but those are typically held as void
bec of public policy
ii. If it were always true, road user couldnt sue for injuries
from car wrecks bec we all know roads are dangerous
e. Just by consenting to run the risk, doesnt mean you consent
not to sue
f. You may consent to danger, but still receive a legal injury; you
assume the physical risk, not the financial risk
g. Focus on no breach, no duty, no cause, no proximate cause
instead of assumption of risk
h. Consent is a defense to intentional torts!
i. Assumption of risk is supposed to defend negligence BUT no
one would ever consent to negligence
6. Cases of No Breach
a. Most common assumption of risk cant sue if youre hit with a
baseball at a game bec you chose to go there
i. Conclusion true assumption false!
1. This would deny drivers chance to sue for
wrecks
b. Assumption of risk is an affirmative defense so it CAN ONLY
APPLY WHEN P ESTABLISHES ALL ELEMENTS OF A PRIMA
FACIE CASE
i. Owed duty of care to victim
ii. Breached duty
iii. Caused compensable injury as result of breach
c. Victim was in zone of danger so D owed victim duty
d. Batter didnt breach duty bec its his job to hit the ball he was
acting reasonable
e. Therefore, no prima facie case and no need for defense
f. Breach of duty could occur on behalf of the stadium if there
was no net in area supposed to be protected then there was
injury bec the net was defectives and hit person THEN you
have a prima facie case
i. Assumption of risk wouldnt be an effective defense bec
victim only agreed to run the risk if net was functional
g. MOST COMMON EXAMPLE OF ASSUMPTION OF RISK BEING
FAKE AND IS ACTUALLY NO BREACH OF DUTY
7. Cases of No Duty
46
a. Normally we are under the obligation to take reasonable steps

to avoid striking another person within our zone of danger
i. Obviously doesnt apply in contact sports even if its a
foul - the rules of the game provide for these instances
1. Assumption of risk in these instances really
means no duty!
a. Is not an exemption from acting
reasonably, it is an exemption so long as
player is engaging in sport in question
b. Acting in a manner outside of the sport
does not trigger the no duty rule!
ii. No duty to keep premises free of thorny bushes
1. Trespassers cant claim damages for injuries bec
the land owner had no duty
8. Assumption of Risk as Comparative Fault

a. It has been stated that voluntary assumption of risk would also
amount to comparative fault, so comparative fault should be
taken to have usurped assumption of risk.
i. But it is possible to take risks without acting
unreasonably or with fault!
1. This is why assumption of risk cant be
affirmative defense bec it would apply to all
negligence claims
b. WHEN ASSUMPTION OF RISK IS NOT DENYING AN ELEMENT
LIKE DUTY OR BREACH, IT IS COMPARATIVE FAULT!
i. Betts v. Crawford: Housekeeper tripped on childrens
toys on stairs, homeowners had duty to act with
reasonable care and breached it
ii. Trupia v. Lake George Cent.: kid went to summer
camp and rode/fell off bannister court held if kids
harm is attributable to his own conduct, it will be taken
into account within comparative fault allocation
9. Empty Chair Defense

a. It is a defense to enjoin a third party and attempt to prove the
victims injuries were caused by someone else
i. Impleaded D is now in same position as any other D
1. They can implead others
2. Assert defenses
ii. Surgeon impleads anesthetist and allege patients injury
was not caused by him but by the anesthesia
b. Empty chair defense: allows Ds to allege victims injuries
were caused by someone else without having to implead that
person
47
i. Make allegations about a named 3rd party without that

party having the chance to defend themselves in court
1. No award of damages can be made against them
ii. Meant to enable defendants to escape liability for at
least some of the damages that they would otherwise be
liable to pay
10. Fabre v. Marin

a. Facts
i. P hit D; D sued for negligence; P denied responsibility
and said he wasnt the one who cut him off
ii. P enjoined Ds insurance company as D
iii. Jury found them each 50% at fault
b. Rule
i. By discarding JSL, the fault free plaintiff is meant to not
be able to recover for damages
ii. Liability is to be apportioned among those tortfeasors
who were defendants in the lawsuit
c. Holding
i. Judgment should be entered against each party liable on
basis of that partys fault
ii. Ds judgment is reduced by (bec of insurance)
11. Bencivenga v. J.J.A.M.M., Inc.

a. Facts
i. P got punched by unknown assaulter at the club and the
bouncers didnt help
b. Rule
i. Empty chair defense precludes those not named
ii. Fault of fictitious person may not be considered when
apportioning negligence among parties in lawsuit
12. Disappearing Empty Chairs

a. Empty chair defense is not applicable when the non party that
D wishes to blame has already been dismissed from the case
with prejudice
i. Parties are precluded from re-litigating the same issue
13. Immunities
a. Whenever an immune D causes injury to someone else through
negligence, that victim has no claim.
b. Bright line complete defense
c. Only way around the immunity is to prove conduct was so
outrageous it amounts to an intentional tort
d. Inter-spousal immunity bars one spouse from suing another
48
i. Abolished in most states!

e. Parent-child immunity: prevents those below majority from
bringing suit against parent
ii. When available, limited circumstances where parents
conduct involved reasonable parental authority
f. Charitable immunity: widely abolished!
g. Government immunity: sovereign immunity: each state has
his own approach federal approach is defined by Federal Tort
Claims Act (FTCA)
14. Riley v. United States

a. Facts
i. P sued US for negligence of USPS
1. Car wreck bec mailboxes obstructed his view
b. Rule
i. US is immune from suit unless it consents
ii. Congress has waived immunity for torts its agents
commit in line of employment with the FTCA
iii. FTCA doesnt waive immunity for exercise/performance
or failure to exercise/perform a discretionary function
on duty of a federal agency or an employee of the govt
whether or not the discretion involved be abused
1. 2 part test when discretionary function
exception applies:
a. Conduct at issue must be discretionary,
involving an element of judgment or
choice
b. Judgment at issue must be the kind that
the discretionary function exception was
designed to shield
c. Holding
i. Discretionary function exception protects USPS
15. Feres v. United States

a. Facts
i. Combines 3 cases where each claimant was on active
duty and sustained injury due to others in armed forces
b. Rule
i. Govt is not liable under FTCA for injuries to service
men where the injuries arise out of or are in the course
of activity incident to service
c. Holding
i. Feres doctrine: construed to bar claims by active
military personnel
49
1. Bar claims for constitutional rights violations

rather than state tort law violations
2. Bars claims of family members which derive
from the injury to the service member
3. Doesnt bar claims where spouses/children have
been injured in their own right by military
personnel
a. When military medical personnel
negligently treat spouse/child
V. TORTS AGAINST BODILY INTEGRITY require P establish D had a certain

state of mind at the time he acted
A. ASSAULT AND BATTERY
1. So-Called Intentional Torts

a. Limitations on understanding intentional torts:
i. Ancient torts never required Ds intent so proving
intent is confusing and it is unclear what D must have
intended
ii. Controversy as to whether D must have intended only
the specific act he undertook or whether he must have
also intended the consequence
1. Dual intent theory: allows D to escape liability
in circumstances where D must intend action
and the outcome
2. Single intent theory: torts is strict liability
only need to intended the act undertaken
Misguided bec it overlooks:
a. Not ALL non-consensual touching is
battery (shopping in a busy place)
b. Battery can be committed recklessly not
always intentional so people dont escape
liability for keeping head in sand
iii. Theres different notions of intent for different
intentional torts
iv. Intent includes knowledge, belief, substantial certainty
and/or recklessness BUT these dont even concern a
persons state of mind just distinguishes Ds conduct
b. Dignitary torts: term that used to describe ancient torts like
assault/battery, but now it include intentional infliction of emo
distress and defamation SO no distinction of intentional torts
that include physical harm
2. Trespass to the Person
50
a. Assault and battery are both torts and crimes

i. Criminal law requires proof beyond reasonable doubt
ii. Torts requires preponderance of evidence
iii. SO criminal conviction can be used to prove tort but not
vice versa
b. Assault, battery, false imprisonment are all trespass to the
person many require the same elements
3. Assault
a. Proof of a prima facie case requires proof of conduct and
mental element!
i. Conduct doesnt involve physical touching or contact
with the victim
1. Requires proof the D acted in a way to cause the
victim to apprehend that he was about to be
struck by the D in a manner likely to be harmful
or offensive
2. Victim must be conscious and aware
a. Unconscious is unable to know if he was
about to be touched/struck
b. Attempted battery is not assault
i. A failed attempt to shoot someone
else isnt assault if intended victim
wasnt aware she was about to be
shot at
3. Apprehend doesnt mean frightened person
just must believe contact was about to occur
a. The apprehension must be imminent
i. Cant be fear of future harm
b. Must be objectively reasonable
4. Must be harmful OR offensive either one works
a. Harmful includes D wielding a weapon or
instrument by some part if his body
i. Judged objectively
b. Offensive includes Ds use of a weapon or
instrument
i. Also judged objectively
ii. Suffices proof of harm
ii. Mental element
1. To be liable for assault, it is necessary to prove D
intended the specific act he undertook
a. Non-intentional conduct like
sleepwalking or conduct induced by
drugs does not suffice bec he wasnt in
control of his body
51
2. Controversy as to whether any intention beyond

this is required!
a. Is it necessary for D to have intended act
in the way he did AND that it be harmful
and offensive?
i. NECESSARY that D intended to be
harmful or offensive
b. Is it necessary for D to have aimed his
conduct at a specific person? What
happens if an unintended person is
apprehended by imminent harmful or
offensive contact?
i. Little justification for requiring
specific level intent and would
allow many Ds to escape liability
on the ground they didnt intended
that victim
3. Must infer what D was thinking from what they
were doing and the context
b. Vetter v. Morgan
i. Facts
1. P was driving at night alone and a man in
another car screamed at and threatened him
2. Ds car swerved at P and P hit curb
ii. Rule
1. Two prongs for proving intent
a. Extreme behavior that would cause P to
reasonably believe threat is immediate
i. Apprehension of instantaneous
harm isnt necessary
ii. Appearance there will be no
significant delay is sufficient
b. Ability to prevent threatened harm by
flight/self defense doesnt preclude
assault
i. Mere belief of immediate contact
unless prevented by
flight/defense/others is enough
iii. Holding
1. P was reasonably able to apprehend bodily
threat and his ability to prevent harm by
flight/self-defense doesnt preclude assault
c. Raess v. Doescher
i. Facts
52
1. P (doctor) screamed at D for his work

performance aggressively, with clenched fists,
red face, veins, swearing
2. P backed D to a wall and D believed he was going
to be hit
ii. Rule
1. Only need evidence to prove that assault
occurred, assaulter had requisite intent, and
reaction was reasonable to support damages
iii. Holding
1. Sufficient evidence supporting assault
2. Adversely affected Ds quality of life
4. Battery
a. Involves both mental and conduct elements
i. Conduct: In battery, victim must have been touched or
suffered contact
1. Contact has wide meaning: includes being struck
by weapon or instrument and any harmful or
offensive contact with an article with which
victim was in contact with
ii. Mental: D mustve intended the act in question
1. Must have intent to do the act in question AND
intent to do something harmful or offensive must
be proved
OR
2. Ds conduct was reckless
a. First establish there was serious risk of
harm of which D was aware when he
acted the way he did
b. DONT have to show D intended to be
5. Transferred Intent
a. Created to deal with those attempting battery failed to make
contact and those who attempted to threaten/scared
inadvertently made contact
i. Mental element could be transferred to make the D
liable for what he actually committed
ii. Also intent could be transferred if someone else was
assaulted/battered
b. Intent for one tort or victim could sustain a verdict of liability
for the other tort towards a different victim
c. Cannot be simultaneously liable for both an intentional tort
and negligence
53
d. Baska v. Scherzer
i. Facts
1. Ps daughter hosted party D attended. D got in
fight with another boy and P tried to break up
fight and was hit in the face
ii. Rule
1. An action doesnt need to be directed at the P to
give rise to liability for intentional torts
2. Transferred intent allows the tort of battery and
assault may be committed even if the victim is
not who the D intended to strike or hit
e. Cobbs v. Grant
i. Facts
1. P experienced many of the risks his surgery held
that D failed to tell him about
ii. Rule
1. Single intent theory would not allow for the
choice of battery or negligence since every
improper surgery would then be considered
battery unless the surgeon was completely
unaware of what he was doing
iii. Holding
1. Physicians are obligated to inform patients of
risks, benefits, and alternatives that a reasonable
person would consider material
f. Levin v. United States

i. Facts
1. P consented to surgery but tried to orally rescind
his consent
2. D proceeded anyways and P suffered
complications
3. P sued for battery and negligence negligence
was dismissed
ii. Rule
1. FTCA allows a P to bring a tort claim against US
unless it is an intentional tort like battery
2. Gonzales act allows special exceptions for
alleged wrongful or negligent medical care
iii. Holding
1. P was allowed to bring claim
6. Defenses
a. 3 main affirmative defenses to assault or battery:
54
i. Consent: complete defense shows Ds conduct wasnt

wrongful at all but entirely justified
ii. Self-defense: degree of force or threat used by D was
reasonable in the circumstances to keep himself from
danger imposed by whom he assaulted or battered
then actions are justified
1. If degree of force was beyond what was
reasonable, liability may be established
iii. Emergency: D simply had no other option bec of the
danger he was in or where D acted for apparent victims
own good
1. Person pulls another out of way of a speeding car
B. FALSE IMPRISONMENT
1. The Elements
a. Mental and conduct element
i. Mental: same as battery may be recklessly
1. D who meant to commit FI but committed
assault or battery is liable for the latter
ii. Conduct: confining someone else without lawful
authority in circumstances where
1. That other person is aware of his confinement
a. Awareness of loss of liberty is
compensable so dont need to prove
actual harm
b. If unaware, only get compensation if you
can prove harm like being locked,
unconscious, or in a small space with
fumes
OR
2. Such confinement causes harm to the victim
2. Sullivan v. County of Los Angeles
a. Facts
i. Ps jail time expired and wasnt released for 2 weeks
b. Rule
i. No sovereign immunity for false imprisonment.
c. Holding
i. If sheriff knew or shouldve known the imprisonment
was unlawful, he had duty to investigate
3. McCann v. Wal-Mart Stores, Inc.

a. Facts
i. P and children were at Ds store and were blocked when
leaving employees asked them to come with them bec
they had been caught stealing before
55
ii. D said they were calling police but only called security
to see if it was actually the same shoplifter it wasnt
iii. Employees acknowledged mistake and P left
b. Rule
i. FI occurs when person is confined intentionally without
lawful privilege and against consent within limited area
for any appreciable time, however short
c. Holding
i. Adequately proved elements of FI
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
1. Origins
a. Intentional infliction of emotional distress (IIED):
Circumstances where someone whose caused emo distress by
anothers intentional wrongdoing may be able to claim
damages
b. Wilkinson v. Downton: first case to recognize IIED
i. Not really a case of IIED P actually suffered physical
harm from practical joke harm was caused by emo
distress though
ii. Relied on Johnson v. Sampson but that doesnt explain
what the cause of action is
2. State Rubbish Collectors Assn v. Siliznoff

a. Facts
i. D picked up trash from X but P thought that was
territory of someone elses pickup
ii. P called D and ordered him to give the money to X
iii. D became frightened and finally agreed to pay X
iv. D became sick and missed work
b. Rule
i. In the absence of privilege, a party is liable for damages
for intentionally subjecting another to mental distress
even without intending to cause bodily harm if the harm
that results was foreseeable.
3. The Restatements
a. An actor who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional harm to another is
subject to liability for that emotional harm and if the emotional
harm causes bodily harm, also for the bodily harm
b. Emotional harm is impairment or injury to a persons
emotional tranquility
c. 4 elements of IIED:
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i. Extreme and outrageous conduct by D

1. Conjunctive! Must prove both objectively
2. Two stage process to determine:
a. Judge decides whether there is sufficient
evidence on which a reasonable fact find
could conclude conduct was extreme and
outrageous
b. If so, then jury decides whether conduct
qualifies to be characterized in that
manner
3. Asks how a reasonable person would feel
4. Cant hold someone liable bec their conduct is
unpopular
ii. The Ds INTENT to cause or reckless disregard of the

substantial certainty of causing, severe emo distress
iii. The victims actual suffering of severe emo distress
iv. Causation of the victims emo distress by the Ds
extreme and outrageous conduct
4. Snyder v. Phelps
a. Facts
i. D lawfully held protest outside of service mans funeral
on public grounds
b. Rule
i. Whether Defendants are liable turns on whether the
claimed speech is private or public in nature. If the
speech is public, the First Amendment provides greater
protection than if the speech is private.
c. Holding
i. A church protesting a military funeral on public land in
a peaceful manner is considered public speech
protected by the First Amendment.
5. Intent
a. Must be shown that actor desired to inflict severe emo distress
or that he was certain or substantially certain that distress
would occur as result of his conduct
b. Intent applies not so much to the act itself as to the
consequences of that act doesnt have to relate to Ds conduct
i. Accordingly any outcome which occur and which the
actor desired to accomplish is intentional
ii. Includes any outcome that was substantially certain to
be an outcome that was intended by actor even if she
had not subjectively intended
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c. Intent can be proved by establishing:

i. The wrongdoer had specific purpose of inflicting emo
distress
OR
ii. That wrongdoer intended his specific conduct and this
conduct was substantially certain to cause emo distress
d. Intent element not satisfied if D acts within legal rights
a. Where such conduct is directed at a 3rd party, the actor is
subject to liability if he intentionally or recklessly causes
severe emotional distress:
i. To a member of such persons immediate family who
isnt present at the time, whether or not such distress
results in bodily harm
OR
ii. To any other person who is present at the time, if such
distress results in bodily harm
b. Third restatement doesnt include this provision
i. Probably seldom used
c. If the conduct intended to inflict emo distress doesnt reach its
intended party but instead affects another person, then it
might be more appropriate to treat such emo harm as been
brought by negligence
i. Because an individual cannot harm another both
intentionally and accidentally, conduct inflicting emo
harm on a 3rd
party is NEID
7. Boyles v. Kerr
a. Facts
i. D taped himself having sex with P and showed others
causing severe distress to P
ii. P claimed negligent infliction of emo distress
b. Holding
i. Clearly supported an intentional injury
8. IIED and Traditional Dignitary Torts

a. Can intent be transferred between IIED and more traditional
dignitary torts?
i. The law is best conceived as requiring proof D intended
to do harm and that the precise tort involved turns on
Ds act and its consequences
b. Dickens v. Puryear
i. Facts
1. D took P to woods and threatened him with
pistol and handcuffed him to beat him also
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threatened to castrate him didnt let him go for

two hours
ii. Rule
1. A threat of future harm that is apparently
intended to and which does inflict mental
distress is actionable as an infliction of mental
distress.
9. Severe Emotional Distress

a. Liability only arises when the emo distress exceeds that which
a reasonable person in similar circumstances could endure
b. Objective! Jury decides BOTH
i. That the victim suffered emo distress that was SEVERE
1. To keep courts from flooded petty claims
2. So no one can claim simply bec they react to
some admittedly severe annoyance in a highly
idiosyncratic manner
ii. That a reasonable person in same circumstances
couldnt be expected to endure such distress
c. Once this is proved, damages are based on subjective suffering
10.Harassment
a. Title VII: statute to deal with bullying and discrimination in the
workplace
i. Doesnt require proof of actual mental injury
b. Harris v. Forklift Systems, Inc.
i. Facts
1. P was sexually harassed by her employer and D
argued it wasnt severe enough since it didnt
affect her psychologically or impair her work
ii. Rule
1. Sexual harassment doesnt have to impair or
affect the employees well being to create an
abusive work environment and violate Title VII
2. Just have to show environment was hostile or
abusive
11.Taylor v. Metzger
a. Facts
i. P was black sheriff who was racially insulted by D once
but was severely affected by it
b. Rule
i. A single event, in the right circumstances, may be
extreme and outrageous conduct and give rise to IIED
c. Holding
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i. A supervisors words especially racial slurs can cause

extreme emo distre
d. Facts:
i. P went to D hotel and there was no parking
ii. P was directed to park off site and assured of its safety
then she was held at gun point and robbed
e. Rule:
i. When P is touched in any way they can claim for emo
injury as result of Ds negligence and dont need to
apply impact rule
ii. Can recover for distress for fear of own physical safety
f. Holding:
i. P could recover for psychological trauma bec the robber
touched P
12. Ochoa v. Superior Court

a. Facts
i. Ps son died in juvi bec authorities refused to move him
to her doctor and denied his worsening condition
b. Rule
i. When P observes Ds negligent conduct and the injury
to the victim has a contemporaneous awareness that Ds
conduct caused injury then there is a cause of action
ii. Can recover for witnessing something happening to
someone else
c. Holding
i. Mother can recover for emotional distress from
watching her son deteriorate from lack of medical
attention while in juvi
13. Primary and Secondary Victims

a. Primary victim: those injured by someone elses negligence,
irrespective of what might or might not have happened to
anyone else
i. Can suffer consequent to own physical injury
ii. Can suffer bec they feared for their safety
b. Secondary victim: those who suffer injury bec of a prior injury
to someone else
i. Witnessed someone elses injury
c. Different requirements for duty of care for different victims
14. Consolidated Rail Corp. v. Gottshall

a. Facts
i. P observed coworker die and was instructed to keep
working while body was left at site
60
b. Rule
i. Zone of danger test
1. Limits recovery for employer negligence to
physical injury from emo distress
c. Holding
i. Employers arent liable for stressful conditions
15. Which Secondary Victims?

a. Three approaches to determine to whom a duty is owed
i. The household test: secondary victim must share home
with primary victim as domestic unit
1. Excludes fiancs that dont live together
ii. Presumptions approach: presumes parent, children
grandparents and grandchildren have relationship of
love and affecting with primary victim so duty owed
iii. Statutory list: lists those who are owed duty as
secondary victims no exceptions not in US
16. Thing v. La Chusa

a. Facts
i. Thing in accident w/ D and Things mother, P, ran over
and saw son lying bloody in street
b. Rule
i. A plaintiff may recover damages for emotional
distress caused by observing the negligently
inflicted injury of a third person if:
1. The plaintiff is closely related to the victim
2. Present at the scene of the injury when it
occurred, and
3. Aware that the victim was being injured.
17. Foreseeability to Proximity

a. Court requires proximity close connection between P and D
or close connection between primary and secondary victims
b. 3 notions of proximity:
i. Spatial proximity of space
ii. Temporal proximity of time
iii. Relational proximity of relationship
c. **SEE MATRIX to show proximity used for each harm
18. Potter v. Firestone Tire & Rubber

a. Facts
i. D disposed of toxins in landfill that seeped into
groundwater
b. Rule
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i. A plaintiff may recover damages for fear of cancer alone

if the plaintiff proves that the defendants negligence
exposed the plaintiff to a carcinogen and the plaintiffs
fear stems from a knowledge that it is more likely than
not that the carcinogen will cause the plaintiff to
develop cancer in the future
ii. A plaintiff need not meet the more than likely
threshold if the plaintiff proves that the defendants
conduct was oppressive, fraudulent, or malicious.
c. Holding
i. P was exposed to substance that threatened cancer bec
of Ds negligence and was scared bec of medical and
scientific opinion shell probably get cancer
L. OMISSIONS
6. Nonfeasance: failure to act at all

7. No duty to rescue/aid even if it would be reasonably expected to
do so EXCEPT when: (bec theres proximity between D and victim)
a. Someone has voluntarily taken that obligation
b. D was under some other legal obligation which implies a
duty to act
c. Ds prior conduct was what imperiled victim in the 1st place
d. Premises liability cases where victim was invitee/licensee
8. Strauss v. Belle Realty Co.

a. Facts
i. A tenant went to the basement during power outage
and fell
ii. Power company had k with P and D for basement
b. Rule
i. Courts must fix an orbit of duty, which limits liability
to manageable levels, even where this may exclude
parties who would have been able to recover under
traditional tort principles.
c. Holding
i. Cant allow liability that extends past contractual
relationship
9. Tarasoff v. Regents of Univ. of California

a. Facts
i. Former patient of D murdered Ps daughter D
didnt warn P of danger
b. Rule
i. A duty of care may arise from either
62

third person which imposes a duty upon the
actor to control the third persons conduct, or
other, which gives to the other a right of
protection.
c. Holding
i. The therapist owes legal duty to his patient, but also
to his patients would-be victim
10. Baker v. Fenneman

a. Facts
i. P walks into TB, faints, falls backwards and hits his
head. Employee might have offered help and he
might have said he's okay then employee goes back
behind counter.
ii. Baker then faints and falls again
iii. When he regains consciousness, he's choking on
blood and teeth, stumbles outside and calls for help.
b. Rule
i. When there is a special relationship, even if a
business did not cause the injury, you have a duty to
a standard of care not to make the injury worse.
c. Holding
i. Taco bell has a duty to rescue even though it was not
their fault the customer fell and hit his head.
M. PREMISES LIABILITY
6. An Anachronism
a. No place in the law of torts remains from property law
b. Premises liability cases occur when someone is physically
injured by a hazard situated on someone elses premises
i. Safety of the premises must be in question
otherwise what is done is just a matter of negligence
ii. Not really focused on whether D was negligent
c. Whether state of property matters, depends on status of
person injured or killed.
STATUS/DEFINITION DUTY OWED BY POSSESSOR
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Invitee: someone who is on anothers 1. Make reasonable inspections of

premises for the actual or potential premises
economic benefit of the person in 2. Take reasonable steps to keep invitee
possession of the premises safe while on premises
3. Warn of dangers that arent obvious
and provide reasonable guidance on how
to avoid them
Licensee: someone who is lawfully on 1. NO duty to inspect
anothers premises, either for social 2. Take reasonable steps to keep licensee
reasons or to exercise a special legal safe from dangers on the premises which
power (arrest, mail, reading meter) the possessor knows or ought to know
3. Warn of known dangers that arent
obvious and provide reasonable
guidance on how to avoid them
Trespasser: someone who is unlawfully 1. NO duty to inspect
on anothers premises 2. Avoid causing wanton or willful harm
3. NO duty to warn, except in order to
avoid causing wanton or willful harm
7. Attractive Nuisance
a. Bennett v. Stanley
i. Facts
1. Child trespasses into neighbors yard and falls
into disgusting pool and drowns mom dies
trying to save him
ii. Rule
1. Attractive nuisance doctrine holds
possessors to a standard of reasonable care if
possessor knows or has reason to know of
the attractive nuisance
2. Children are viewed differently from adults
higher level of care
iii. Holding
1. A possessor of land is liable for harm to a
child trespasser caused by an artificial
condition if:
a. The possessor knows or has reason to
know that children are likely to
trespass near the condition,
b. The possessor knows or has reason to
know that the condition causes an
unreasonable risk of serious injury to
child trespassers,
64
c. The children because of their youth do

not discover the condition or
recognize the risk involved,
d. The utility of the condition to the
possessor and the cost of eliminating
the danger are slight compared to the
risk to child trespassers, and
e. The possessor fails to exercise
reasonable care in eliminating the
danger or in protecting the child
trespassers.
8. Judge of Jury?
a. Normal negligence cases allow jury to decide standard of
care
b. In cases of premises liability, duty is tied to standard of care
and court asserts the standard of care as a matter of law
i. Dont recognize pure economic loss or pure ED
ii. Must be physical injury including personal property
9. Wagner v. International Ry.

a. Facts
i. Man is thrown from train and his cousin is injured
when he went to look for his body
b. Rule
i. A defendant who negligently imperils and causes
injury to a person may also be liable for injuries
suffered by a third party in attempting to rescue that
person.
1. Not liable for injuries from unreasonable
rescue attempt
c. Holding
i. Whether the cousins rescue was due to Ds
negligence and whether the attempt to rescue was
reasonable are questions for jury
10. Rowland v. Christian

a. Facts
i. P was guest at Ds house and injured hand on broken
bathroom faucet
ii. D knew of damages but did not warn guests
b. Rule
i. The proper test for determining liability of a
landowner is whether in the management of his
65
property he has acted as a reasonable man given the

probability of injury to others
1. Although the plaintiffs status as a trespasser,
licensee, or invitee may have some bearing
on the question of the landowners liability,
this status alone is not determinative.
c. Holding
i. Social guest is entitled to warning of danger so they
can take precautions
N. STANDARD OF CARE & BREACH OF DUTY
15. Standard of Care

a. Sets the level of care against which the Ds conduct is
measured (provided duty is already established)
i. D has breached duty if he hasnt met this requisite
standard
1. Breach means D behaved unreasonably in
the circumstances and is at fault
16. Foreseeability Revisited

a. Foreseeability explains why someone should be liable for
causing injury which he didnt intend
i. If it was RF that a course of conduct would cause
harm to others, then that seemed to suggest that
continuing that behavior involved a breach of the
duty owed
b. Capitalism requires risks be taken so there cant be laws to
restrict risk
17. Reasonableness
a. The essence of standard of care is reasonableness
i. Standard of ordinary care or the standard of
care of a reasonably prudent person
ii. Jury is to consider conduct according to how it
appears to dispassionate observers
18. Risk Assessment

a. Employers/schools/organizations typically develop
policies/protocols to minimize likelihood that
employees/students/members will act unsafely
i. These are designed to make moments of
thoughtlessness less common by forcing people to
think through their actions or by making
reasonableness routine
66
ii. They provide a system of monitoring, supervision,

or peer review to act of failsafe to increase detection
before it causes harm
b. Concerns: people will worry over things that are unlikely or
policies may be over protective in preventing harm
i. Counter to ^^: make policies only dealing with
reasonably foreseeable risk, or severe harm or high
likelihood of harm
19. Bernier v. Boston Edison Co.

a. Facts
i. Woman was in car accident then accidently hit the
gas and hit an electric pole that fell and hit teens
ii. This pole had been hit before
b. Rule
i. To avoid negligence, a manufacturer must consider
the reasonably foreseeable risks of injury created by
a products use in its normal environment and
design the product to prevent an unreasonable risk
of such injuries.
c. Holding
i. Bec the pole had been hit before, it was foreseeable
it would be hit again
ii. Manufacturer has expertise so anticipation of its use
and its environment isnt unreasonable
20. Campbell v. Kovich

a. Facts
i. P was hit in the eye by something ejected from the
lawn mower on Ds premises
ii. Lawn was inspected before mowing
b. Rule
i. No requirement to exercise extraordinary care
nothing more than what a person of ordinary
prudence would exercise
c. Holding
i. D mowed lawn in reasonable manner and not
required to do more
21. Modifying the Standard of Care

a. Many situations require the jury to make judgments about
what was reasonable in situations where they might well
have little or no germane life experience
b. Situations may require the jury to apply a modified form of
the test for standard of care
67
i. Child, common carrier, professional defendants
22. Appelhans v. McFall

a. Facts
i. 5 y/o hit 66 y/o on his bike, she falls and breaks hip
b. Rule
i. Child under 7 incapable of negligence
ii. To prove negligent supervision:
1. Parents must know of past conduct to put
them on notice of childs acts likely occur
2. Parents had opportunity to control child
c. Holding
i. Holding parents strictly liable for failing to prevent
childs negligence is unreasonable
23. Connell v. Call-a-Cab, Inc.

a. Facts
i. P ordered AAA cab, cab driver assaults her
b. Rule
i. Common carriers are exceptions to rule that
employers arent liable for intentional torts of
employees or agents
1. Taxi cabs are common carriers
ii. Carrier owes a very high duty of care to protect
passengers from injuries from other passengers
of strangers and an even higher, absolute duty to
protect passengers from injuries by its own
servants
iii. Carrier can only escape liability for injuries to
passengers that werent unavoidable
iv. Duty imposes on common carriers cant be avoided
through use of independent contractors
c. Holding
i. Connell contacted AAA - not the driver - so AAA
agreed to provide and assumed duty which they
retained regardless of whether driver was employee
or independent contractor
24. Bruni v. Tatsumi

a. Facts
i. Establishes test for determining malpractice
b. Rule
i. Standard of care requires a doctor to do or not
do something as other doctors would have
68
reasonably done or not done under the same or

similar circumstances regardless of location.
25.In Loco Parentis

a. Person in question is acting in position of parent
i. Teachers, administrators
b. With power comes obligation to take care of pupils and
students to the same extent parent would.
i. Much different today bec society considers college
students adults not child of tender years
26. Cost-Benefit Analysis

a. In order to place value on things, juries have to compare
incommensurable entities to solve this problem give
everything common denominator of dollars
b. Not adopted by courts as means to apply standard of care
and breach or duty nor is it included in jury instruction
27. Defensive medicine
a. In fear of tort liability, some health care providers may
engage in defensive medicine
b. Over-deterrence and excessive precaution taking
28. Res Ipsa Loquitur

a. Sometimes it is literally impossible to prove every element
of negligence case. In such cases court may:
i. Rule for D as P didnt establish all elements
ii. Jury can draw appropriate inferences from facts that
are known
1. Res ipsa loquitur: the facts speak for
themselves
b. Infers negligence from the happening of the event and Ds
relation to it
i. Recognize what is known from everyday experience
ii. Some accidents cannot occur without negligence
c. Dont need to eliminate all other possible causes
i. Just need to show that likelihood of other causes is
reduced to show D is probably at fault
O. CAUSATION IN FACT
12. Factual and Proximate Cause

a. Causation: establishes causal connection between the D
breach of duty and victims harm
i. Proved with facts for jury to decide
ii. No use of foreseeability
69
b. Actual causation/factual causation/factual cause/cause

in fact: tests to enable jury on how to decide whether
causation is proved
c. Scope of liability: negligence causes series of
extraordinary and unpredictable untold harm to unfold;
scope limits what is morally justifiable to impose liability
i. Uses foreseeability
13. General and Specific Causation
a. 2 elements to factual causation
i. General: typically only relevant to products liability
cases not focusing on this!
1. Asks whether the breach is capable of
causing the harm sustained
ii. Specific: usually treated synonymous with factual
causation bec general is usually obvious
1. Asks whether Ds breach of duty actually
causes the harm sustained by the victim
b. Factual causation is matter of fact for jury to decide
i. Plaintiff proves on preponderance of evidence
ii. Jury may draw inferences
14. The But-For Test

a. Preferred method of determining cause!
b. Plaintiff proves harm wouldnt have happened BUT FOR the
Ds conduct wouldnt have been harmed if it werent for D
c. FLAWS:
i. P has to prove a negative show what did happen
by proving what wouldve happened if something
didnt occur cant know what wouldve happened
in other circumstances that didnt exist
ii. This test is focused on ascertaining THE cause of
someones injury rather than A cause
time -- (2 bad drivers cause wreck to 3rd

party but for eliminates their causation bec
only one could be responsible)
a. Concurrent causes produce false
negative result!
d. USE THIS TEST W/OTHER TESTS TO PROVE FACTUAL
CAUSATION THEN USE IT FOR RHETORIC PERSUASION
15. Substantial Factor Test

a. Identifies A cause of the injuries
i. Recognizes there may be more than 1 cause
70
ii. Focuses on what actually happened not other

circumstances
b. Asks whether each D or Ps own conduct was one of the
factors that played a role in causing the victim harm

time)
16. Viner v. Sweet
a. Facts
i. P founded company and hired attorney that was not
licensed in their state
ii. Consequently, they signed bad k
b. Rule
i. Unless there are concurrent independent causes, the
plaintiff must show "but for" causation as with
attorney malpractice suits dealing with litigation.
c. EXAMPLE how courts avoid problems of but for test!
17. The NESS Test

a. Necessary Element of a Sufficient Set test: if multiple
acts occur, each of which would have been a factual cause
of the physical harm at the same time in absence of the
other acts, each act is the factual cause of the harm
b. Completely REJECTS substantial factor test
i. Treats but for as an alternative but logically should
reject it
c. This test sometimes treats something as cause of injuries
even if it was not
i. If something is a necessary element in a set of
conditions that would together bring the harm then
such an element is treated as A factual cause
ii. P wont be able to prove that the harm by the
innocent D was in his scope of liability
18. The Role of Inference

a. The jury is typically responsible for deciding whether D and
or the victim caused the injuries
b. Plaintiff must prove on the preponderance of evidence
show his argument is more likely to be right than wrong
c. Juries make decisions of factual causation on the basis of a
series of inferences
d. Evidence needs to be interpreted interpret events about
which there is evidence to determine which of those earlier
in the sequence are more likely than not to be the cause
71
i. May not be timeline of events so need to interpret

evidence to infer sequence
e. All inferences must be reasonably supported by evidence
and tested against competing accounts
i. Case, evidence, inferences are mutually enforcing
19. Res Ipsa Loquitur Revisited

a. Used when actual/specific cause is unknown the jury may
infer negligence from circumstances
b. The circumstances when res ipsa loquitur may be pleaded:
i. Cause of victims injuries must be unknown
ii. Harm sustained by victim was type that doesnt
occur without negligence
iii. D must have been in some relationship or activity
that she meant or had some control of victims safety
c. Jury is allowed to draw inferences in these circumstances
that D breached his duty and/or was cause of injury
20. Motions Practice

a. When one test cannot be utilized, it is likely that the fact
finder will draw inferences from known evidence
21. Increasing the Risk

a. Material increase in the risk test: used to prove risk was
increased even though cause of harm was unknown
i. McGhee v. National Coal Board: D failed to provide
adequate washing facilities for workers so it
increased the risk P would contract dermatitis
b. Loss of chance: analogous to material increase - Prevalent
where the cause of an injury is beyond current knowledge
of medical sciences

a. Wherever harm may have more than one cause and is
divisible, it is possible to say which D caused which harm
then pay for the harm caused by his negligence
b. When harm is INDIVISBLE, joint and several liability arises
i. Several: each party can be sued individually for total
ii. Joint: each D can be pursued for 100% but victim
cannot collect > than 100%
c. P will likely pursue D that is best able to pay to obtain
100% then that D will pursue other Ds for contribution
d. Walt Disney World Co. v. Wood: shows JSL undermines
important American businesses
72
i. Disney was liable for 86% of damages when they

were only cause for 1%
e. Many states have abolished JSL
i. Each concurrent tortfeasor is liable for amount
apportioned to their proportion of fault
ii. Not fair to hold someone liable for more than the
share of what they caused
1. Optimal deterrence: people should be liable
for consequences of own conduct
P. SCOPE OF LIABILITY
13.Why Proximate Cause?

d. Courts refer to scope of liability as proximate cause
e. Courts have been concerned with having too many D liable for too
many consequences difficulty finding cut off point for liability
f. Absence of the word cause in scope of liability is deliberate!
ii. Requires P prove harm was within scope of harms for
which D could be properly held liable
14.The Wagon Mound

a. Facts
i. D poured oil from Ps wharf into bay causing minor
injury to Ps property then oil ignited and caused
serious damage
b. Rule
i. **DEFINES SCOPE of liability D is liable for harm he
caused when it is reasonably foreseeable not just a
natural consequence
c. Holding
i. Although the injury to Ps property was direct result of
Ds negligent conduct, D is not liable bec the
consequences were unforeseeable
15.Paslgraf Revisited
a. If consequences could not reasonably have been foreseen, then
there cant be moral justification for imposition of liability
16.Reasonable Foreseeability Revisited

a. Paslgraf doesnt provide basis for scope of liability
b. Scope of liability isnt concerned with cause!
i. It means in order for harm to be compensable, it must
be a reasonably foreseeable result
ii. At the time D acted, the harm wouldve been reasonably
foreseeable to another person in same position
73
17.The Wagon Mound 2

a. Facts
i. D spilled oil which caused fire and damaged ships
b. Rule
i. If a party did nothing to prevent injury, he is liable for
the foreseeable consequences of his actions even if they
are remote
c. Holding
i. Harm must be of a type that is reasonably
foreseeable in order to be compensable.
ii. If a reasonable man can foresee and prevent risk, he
is liable for foreseeable damages
18.Mechanism or Type of Harm?

a. Type of harm need be reasonably foreseeable for the harm to
be compensable
b. Type of harm in scope of liability is not the same thing as it
does for duty of care
c. Risk assessment determines relevant standard of care and
whether or not D breached its duty
i. Also identifies if there is breach what type of risk
negligent conduct will be running
1. These risks establish scope of liability
a. If someone is injured as result of this risk
occurring then the injury is compensable
19.Thompson v. Kaczinski
a. Facts
i. D left trampoline parts in his yard, thunderstorm blew
them into the road and P swerved and crashed trying to
avoid the parts
b. Rule
i. Scope of liability refers to risks present in a specific
situation
c. Holding
i. Liability is limited to physical harms that result from
risks that make an actors conduct tortious.
ii. Liability is NOT determined whether the actors conduct
was a substantial factor in causing harm.
iii. Should be determined by jury whether injury is within
risk of harms risked by the actions of the actor.
20.Mitchell v. Cedar Rapids Community School Dist.

a. Facts
74
i. P slipped on a wet pipe and injured herself when she

was trying to extinguish a fire at Ds facility
b. Rule
i. In order to be the legal cause of ones harm, Ds
negligence must be substantial factor brining the harm
c. Holding
i. Circumstances surrounding injury that are only
remotely related to injury arent the cause.
21.Eggshell Skull Rule (thin skull rule)

a. Defendants take their victims as they find them
b. Benn v. Thomas
i. Facts
1. P had history of heart disease and died of heart
attack 6 days after being in an accident caused
by D
ii. Rule
1. Eggshell rule requires D take P as he finds him,
even if he must compensate for harm an
ordinary person would not have suffered
iii. Holding
1. The eggshell instruction is equally a rule of
proximate cause.
22. Breach of Statutory Duty

a. Theres a presumption that in the absence of clear indication to
the contrary, fed law doesnt create private rights in torts
b. Restatement guide: the court may use standard of conduct of
reasonable man when the requirements of legislation are
i. To protect a class of persons which includes the one
whose interest is invaded and
ii. To protect the particular interest which is invaded and
iii. To protect that interest against the kind of harm which
has resulted and
iv. To protect that interest against the particular hazard
from which the harm results
c. If each of these 4 requirements are satisfied, the court can
rule that the Ds failure to comply with the legislation
amounted to a breach of duty NEGLIGENCE PER SE
23. Intervening Causes: something that contributes to the victims harm

either concurrently with, or after the Ds own conduct, which also
contributes to victims injuries
75
a. Supervening/superseding cause: If the intervening cause

breaks the chain of causation that links Ds behavior and harm
then there is not sufficient proximity to hold D liable
SUPERSEDING CAUSES INTERVENING CAUSES ONLY

(possible legally effective (legally ineffective breaks)
breaks)
Unreasonable conduct by 3rd
Reasonable conduct by 3rd
party party
Unreasonable conduct by P Reasonable conduct by the P
Nothing done by the D Anything done by the D
Unforeseeable act of God Foreseeable act of God
b. Superseding causes above occurrence are necessary but may

not be sufficient
24. Union Pump Co. v. Allbritton

a. Facts
i. Fire occurred at Ds facility. P was instructed to assist in
extinguishing it.
ii. After there was a leak, and P asked to help out.
iii. P followed other employee on unsafe route and fell
b. Rule
i. A successful negligence action involves showing that a
Ds negligent conduct proximately caused, or was a
substantial factor in brining about, the plaintiffs harm
c. Holding
i. If a defendants conduct does no more than furnish the
condition which makes the plaintiffs injury possible,
then legal causation is lacking.
Q. HARM
10. Pain and Suffering

a. Being an involuntary patient is not pleasant so the law
recognizes that injuries are compensable
i. Loss of income bec surgery needed
ii. Reactions to medicines
b. 3 problems for awarding damages for pain and suffering
i. It is subjective people feel more or less pain
1. Makes it indeterminate cant predict in advance
how much P&S an injury may cause
ii. No objective way to prove a victim has sustained P&S
1. No objective way to prove how large P&S is
2. Cant decide how large award should be
76
iii. Potential for fraudulent claims

c. Much like emotional distress, which is more restrictive - tort
reform groups argue for statutory caps on non economic
damages
i. Caps are aimed at the high end but most problems are
on the low end claims
d. BUT P&S doesnt occur without prior physical injury
11. Wrongful Death & Survival Action

a. Survival statute: Most tort suits survive death of either party
and proceed to judgment
b. Wrongful death statutes: enable financial depends of
decedent victim to bring a case as if they were the decedent
i. If decedent doesnt have dependents, courts have
developed as a measure of damages the concept of
inheritance value instead of trying to calculate plaintiffs
financial dependency on decedent
c. These 2 statutes are brought by different categories of
plaintiffs and damages awarded are designed to compensate
for different types of loss
SURVIVAL ACTIONS WRONGFUL DEATH LOSS OF

ACTIONS CONSORTIUM
Brought by personal Brought by financial Brought by those who
representative of the dependent of the has a significant
victims decedents victim decedent relationship with the
estate primary or decedent
victim
Damages are to Damages are to Damages are to
compensate for harm compensate for compensate for the
sustained by the financial loss of the loss of
victim until his death dependents (other companionship,
including P&S losses like funeral services, and/or
expense) guidance and care of
the primary or
decedent victim
Any damages Damages are payable Damages are payable
awarded form part of direct to the direct to the relations
the decedents estate dependents themselves. If victim
themselves, and do has died, those
no form part of the damages dont form
decedents estate part of decedents
estate
77
The costs of the Cost of action are Costs of action is

action are borne by borne by those borne by those
the estate brining the action brining the action
12. Yowell v. Piper Aircraft Corp.

a. Facts
i. Plane crash killed 2, P sued for loss of inheritance
b. Rule
i. Statutory beneficiaries may recover for loss of
inheritance as the present value that the deceased
would have added to the estate and left to the P at
natural death
ii. Subtract the decedents expenditures for himself and his
family from his gross future earnings
iii. If decedent wouldnt have earned more than he and his
family would have used for support then loss of
inheritance damages would be denied
13. Loss of Consortium

a. Claim brought by someone who had a close relationship with a
primary victim killed or injured by the Ds negligence for
compensation for the loss, or signigicant diminution of one or
more of the following:
i. Companionship with primary victim affection and
emo support
ii. Sex life w/primary victim
iii. Guidance and/or mentoring from primary victim
iv. Services provided by the primary victim (chores)
b. These claims may be brought when primary victim is alive
i. NOT a survival action
ii. Solely belongs to secondary victim
iii. Can be brought w/wrongful death action
c. Must show primary victim was injured so badly that
pre-existing relationship has been materially/detrimentally
altered
14. Prenatal Injuries

a. Law now allows for prenatal injury claims
b. States are split on whether wrongful death claims can be
brought for stillbirths of fetus that never reach viability
i. Wrongful death statutes typically preclude these claims
since it would be for a death of someone never born
c. Mothers cannot be held liable to child for negligently causing
prenatal injury
78
15. Wrongful Birth and Wrongful Life (Wrongful Conception)

a. Wrongful life is the term used to describe an action brought
by child whereas wrongful birth is used to describe action
brought by parents
b. Wrongful birth are similar to prenatal injury bec the fetus
suffers an injury before birth different bec:
i. Injury isnt caused by negligence, but maybe by accident
ii. Negligence occurs where medical professional
unreasonably fails to detect defect in timely manner so
mother has no opportunity to abort
c. Harm alleged in wrongful birth:
i. Cost to parents of bringing up disabled child
ii. Associated mental distress that may cause
iii. The pain and distress caused to the child of having to
endure what might be a miserable existence
d. Wrongful life: occur when vasectomy or sterilization
procedure is carried out so negligently the patient remains
fertile and conception occurs against parents wishes
e. Harm alleged in wrongful life:
i. Pain endured by mother while pregnant
ii. Medical costs of pregnancy
iii. Cost to parents of the upkeep and upbringing of a child
they didnt plan
iv. Emotional distress to parents at the fact of conception
v. Emo distress to parents at prospect of raising another
child especially if they are in dire financial need or
suffer a psychological disorder
vi. Emo distress to parents at prospect of termination
f. ISSUE: whether law should award compensation for the birth
of a human
i. Some states prohibit these claims
16. Procanik By Procanik v. Cillo

a. Facts
i. P was born with disease bec D didnt diagnose the
mother with German measles when she was pregnant
b. Rule
i. In a wrongful life suit, an infant may recover special
damages for the extraordinary medical expenses
attributable to his affliction, but not for general
damages for his emo distress or impaired childhood
17. Loss of a Chance

a. Very new and highly controversial
79
b. Instance where victim has 50% or less chance of survival, or

taking preventative/mitigating steps, even before the Ds
negligence played any part in causing harm suffered by victim
c. Traditionally: Wrongdoers could determine they would be
taking no risk at all when victim had less than 50% anyway
causes negligence wouldnt be liable if the victim has less
than 50%
d. Loss of chance: victim loses the chance of avoiding death
i. P must show that it is more than 50% likely that victim
lost that 30% chance of survival
ii. Awards are based on percentage of damages that would
have been awarded in regular personal injury claim
18. Mohr v. Grantham

a. Facts
i. D failed to exercise due care in diagnosing condition so
P lost chance at better health outcome
ii. Because Ps stroke wasnt diagnosed to later, P didnt
start treatment til later and became mentally disabled
b. Rule
i. P must prove duty, breach and that there was an injury
in the form of loss of chance caused by breach of duty to
recover for loss of chance in a medical malpractice case
c. Holding
i. Loss of chance of better outcome doctrine is extended
to medical malpractice cases in which the ultimate harm
to the patient is disability rather than death
R. DEFENSES
16. Comparative Fault

a. Partial defense except 5 states where its complete as
contributory negligence
b. Comparative fault means different things in different states
c. Two schemes of comparative fault
i. Pure scheme: apportions legal responsibility strictly
according to the fault of the relevant actors, including
the victim
ii. Modified scheme: works similar to pure but imposes a
threshold level of fault of the victim, at or above the
victim will be completely precluded from receiving
compensation
1. If victims fault was as much as the threshold,
then she is barred from claiming
80
17. Comparative Fault or Causation?

a. Victims injury must be indivisible for comparative fault
b. If victims injuries are divisible, causation applies so each
tortfeasor is liable for what he caused
18. Ravo v. Rogatnick

a. Facts
i. Either one or both doctors responsible for baby damage
b. Rule
i. When 2 or more tortfeasors act concurrently or in
concert to produce a single injury, they may be held
joint and severally liable
ii. When multiple tortfeasors dont act in concert or dont
contribute to the same wrong, they arent joint
tortfeasors.
1. Their wrongs are independent and successive so
each is responsible for their separate injuries
c. Holding
i. 2 doctors jointly and severally liable for brain damage
to P.
ii. Injury was indivisible but the jury allocated fault 80/20
between them.
iii. Comparative fault does not abolish J&S liability, but the
fault allocation can be used in contribution suit to
determine what each should pay
iv. P can recover full amount from either D.
19. Comparative Fault as a Sword, not a Shield

a. In Tobacco litigation, P attorneys have pleaded their clients
own comparative fault in continuing to smoke
i. This is to present to the jury a victim who DOESNT seek
to blame only the tobacco company for resultant cancer
ii. BUT a person who recognizes their own partial fault
iii. This makes the person someone who made a mistake
not a money scoundrel
iv. Also shows clients reasonableness
b. Chances of winning are enhanced bec its not all or nothing
20. Assumption of Risk

a. Apparently provides that if P took risk of particular activity
upon himself, then D cannot be liable for harm, loss, or injury
b. Supposed to be complete defense
c. Two forms of assumption of risk
i. Namely: P explicitly agrees to run the risk in question
ii. Implied: Ps conduct suggested he agreed to run the risk
81
d. Doctrine can be fundamentally incoherent

i. Public schools have parents sign waiver of liability for
negligent injuries but those are typically held as void
bec of public policy
ii. If it were always true, road user couldnt sue for injuries
from car wrecks bec we all know roads are dangerous
e. Just by consenting to run the risk, doesnt mean you consent
not to sue
f. You may consent to danger, but still receive a legal injury; you
assume the physical risk, not the financial risk
g. Focus on no breach, no duty, no cause, no proximate cause
instead of assumption of risk
h. Consent is a defense to intentional torts!
i. Assumption of risk is supposed to defend negligence BUT no
one would ever consent to negligence
21. Cases of No Breach

a. Most common assumption of risk cant sue if youre hit with a
baseball at a game bec you chose to go there
i. Conclusion true assumption false!
1. This would deny drivers chance to sue for
wrecks
b. Assumption of risk is an affirmative defense so it CAN ONLY
APPLY WHEN P ESTABLISHES ALL ELEMENTS OF A PRIMA
FACIE CASE
i. Owed duty of care to victim
ii. Breached duty
iii. Caused compensable injury as result of breach
c. Victim was in zone of danger so D owed victim duty
d. Batter didnt breach duty bec its his job to hit the ball he was
acting reasonable
e. Therefore, no prima facie case and no need for defense
f. Breach of duty could occur on behalf of the stadium if there
was no net in area supposed to be protected then there was
injury bec the net was defectives and hit person THEN you
have a prima facie case
i. Assumption of risk wouldnt be an effective defense bec
victim only agreed to run the risk if net was functional
g. MOST COMMON EXAMPLE OF ASSUMPTION OF RISK BEING
FAKE AND IS ACTUALLY NO BREACH OF DUTY
22. Cases of No Duty

a. Normally we are under the obligation to take reasonable steps
to avoid striking another person within our zone of danger
82
i. Obviously doesnt apply in contact sports even if its a

foul - the rules of the game provide for these instances
1. Assumption of risk in these instances really
means no duty!
a. Is not an exemption from acting
reasonably, it is an exemption so long as
player is engaging in sport in question
b. Acting in a manner outside of the sport
does not trigger the no duty rule!
ii. No duty to keep premises free of thorny bushes
1. Trespassers cant claim damages for injuries bec
the land owner had no duty
23. Assumption of Risk as Comparative Fault

a. It has been stated that voluntary assumption of risk would also
amount to comparative fault, so comparative fault should be
taken to have usurped assumption of risk.
i. But it is possible to take risks without acting
unreasonably or with fault!
1. This is why assumption of risk cant be
affirmative defense bec it would apply to all
negligence claims
b. WHEN ASSUMPTION OF RISK IS NOT DENYING AN ELEMENT
LIKE DUTY OR BREACH, IT IS COMPARATIVE FAULT!
i. Betts v. Crawford: Housekeeper tripped on childrens
toys on stairs, homeowners had duty to act with
reasonable care and breached it
ii. Trupia v. Lake George Cent.: kid went to summer
camp and rode/fell off bannister court held if kids
harm is attributable to his own conduct, it will be taken
into account within comparative fault allocation
24. Empty Chair Defense

a. It is a defense to enjoin a third party and attempt to prove the
victims injuries were caused by someone else
i. Impleaded D is now in same position as any other D
1. They can implead others
2. Assert defenses
ii. Surgeon impleads anesthetist and allege patients injury
was not caused by him but by the anesthesia
b. Empty chair defense: allows Ds to allege victims injuries
were caused by someone else without having to implead that
person
i. Make allegations about a named 3rd party without that
party having the chance to defend themselves in court
83
1. No award of damages can be made against them

ii. Meant to enable defendants to escape liability for at
least some of the damages that they would otherwise be
liable to pay
25. Fabre v. Marin

a. Facts
i. P hit D; D sued for negligence; P denied responsibility
and said he wasnt the one who cut him off
ii. P enjoined Ds insurance company as D
iii. Jury found them each 50% at fault
b. Rule
i. By discarding JSL, the fault free plaintiff is meant to not
be able to recover for damages
ii. Liability is to be apportioned among those tortfeasors
who were defendants in the lawsuit
c. Holding
i. Judgment should be entered against each party liable on
basis of that partys fault
ii. Ds judgment is reduced by (bec of insurance)
26. Bencivenga v. J.J.A.M.M., Inc.

a. Facts
i. P got punched by unknown assaulter at the club and the
bouncers didnt help
b. Rule
i. Empty chair defense precludes those not named
ii. Fault of fictitious person may not be considered when
apportioning negligence among parties in lawsuit
27. Disappearing Empty Chairs

a. Empty chair defense is not applicable when the non party that
D wishes to blame has already been dismissed from the case
with prejudice
i. Parties are precluded from re-litigating the same issue
28. Immunities
a. Whenever an immune D causes injury to someone else through
negligence, that victim has no claim.
b. Bright line complete defense
c. Only way around the immunity is to prove conduct was so
outrageous it amounts to an intentional tort
d. Inter-spousal immunity bars one spouse from suing another
84
e. Parent-child immunity: prevents those below majority from

bringing suit against parent
ii. When available, limited circumstances where parents
conduct involved reasonable parental authority
f. Charitable immunity: widely abolished!
g. Government immunity: sovereign immunity: each state has
his own approach federal approach is defined by Federal Tort
Claims Act (FTCA)
29. Riley v. United States

a. Facts
i. P sued US for negligence of USPS
1. Car wreck bec mailboxes obstructed his view
b. Rule
i. US is immune from suit unless it consents
ii. Congress has waived immunity for torts its agents
commit in line of employment with the FTCA
iii. FTCA doesnt waive immunity for exercise/performance
or failure to exercise/perform a discretionary function
on duty of a federal agency or an employee of the govt
whether or not the discretion involved be abused
1. 2 part test when discretionary function
exception applies:
a. Conduct at issue must be discretionary,
involving an element of judgment or
choice
b. Judgment at issue must be the kind that
the discretionary function exception was
designed to shield
c. Holding
i. Discretionary function exception protects USPS
30. Feres v. United States

a. Facts
i. Combines 3 cases where each claimant was on active
duty and sustained injury due to others in armed forces
b. Rule
i. Govt is not liable under FTCA for injuries to service
men where the injuries arise out of or are in the course
of activity incident to service
c. Holding
i. Feres doctrine: construed to bar claims by active
military personnel
85
1. Bar claims for constitutional rights violations

rather than state tort law violations
2. Bars claims of family members which derive
from the injury to the service member
3. Doesnt bar claims where spouses/children have
been injured in their own right by military
personnel
a. When military medical personnel
negligently treat spouse/child
VI. TORTS AGAINST BODILY INTEGRITY require P establish D had a certain

state of mind at the time he acted
D. ASSAULT AND BATTERY
7. So-Called Intentional Torts

a. Limitations on understanding intentional torts:
i. Ancient torts never required Ds intent so proving
intent is confusing and it is unclear what D must have
intended
ii. Controversy as to whether D must have intended only
the specific act he undertook or whether he must have
also intended the consequence
1. Dual intent theory: allows D to escape liability
in circumstances where D must intend action
and the outcome
2. Single intent theory: torts is strict liability
only need to intended the act undertaken
Misguided bec it overlooks:
a. Not ALL non-consensual touching is
battery (shopping in a busy place)
b. Battery can be committed recklessly not
always intentional so people dont escape
liability for keeping head in sand
iii. Theres different notions of intent for different
intentional torts
iv. Intent includes knowledge, belief, substantial certainty
and/or recklessness BUT these dont even concern a
persons state of mind just distinguishes Ds conduct
b. Dignitary torts: term that used to describe ancient torts like
assault/battery, but now it include intentional infliction of emo
distress and defamation SO no distinction of intentional torts
that include physical harm
8. Trespass to the Person
86
a. Assault and battery are both torts and crimes

i. Criminal law requires proof beyond reasonable doubt
ii. Torts requires preponderance of evidence
iii. SO criminal conviction can be used to prove tort but not
vice versa
b. Assault, battery, false imprisonment are all trespass to the
person many require the same elements
9. Assault
a. Proof of a prima facie case requires proof of conduct and
mental element!
i. Conduct doesnt involve physical touching or contact
with the victim
1. Requires proof the D acted in a way to cause the
victim to apprehend that he was about to be
struck by the D in a manner likely to be harmful
or offensive
2. Victim must be conscious and aware
a. Unconscious is unable to know if he was
about to be touched/struck
b. Attempted battery is not assault
i. A failed attempt to shoot someone
else isnt assault if intended victim
wasnt aware she was about to be
shot at
3. Apprehend doesnt mean frightened person
just must believe contact was about to occur
a. The apprehension must be imminent
i. Cant be fear of future harm
b. Must be objectively reasonable
4. Must be harmful OR offensive either one works
a. Harmful includes D wielding a weapon or
instrument by some part if his body
i. Judged objectively
b. Offensive includes Ds use of a weapon or
instrument
i. Also judged objectively
ii. Suffices proof of harm
ii. Mental element
1. To be liable for assault, it is necessary to prove D
intended the specific act he undertook
a. Non-intentional conduct like
sleepwalking or conduct induced by
drugs does not suffice bec he wasnt in
control of his body
87
2. Controversy as to whether any intention beyond

this is required!
a. Is it necessary for D to have intended act
in the way he did AND that it be harmful
and offensive?
i. NECESSARY that D intended to be
b. Is it necessary for D to have aimed his
conduct at a specific person? What
happens if an unintended person is
apprehended by imminent harmful or
offensive contact?
i. Little justification for requiring
specific level intent and would
allow many Ds to escape liability
on the ground they didnt intended
that victim
3. Must infer what D was thinking from what they
were doing and the context
b. Vetter v. Morgan
i. Facts
1. P was driving at night alone and a man in
another car screamed at and threatened him
2. Ds car swerved at P and P hit curb
ii. Rule
1. Two prongs for proving intent
a. Extreme behavior that would cause P to
reasonably believe threat is immediate
i. Apprehension of instantaneous
harm isnt necessary
ii. Appearance there will be no
significant delay is sufficient
b. Ability to prevent threatened harm by
flight/self defense doesnt preclude
assault
i. Mere belief of immediate contact
unless prevented by
flight/defense/others is enough
iii. Holding
1. P was reasonably able to apprehend bodily
threat and his ability to prevent harm by
flight/self-defense doesnt preclude assault
c. Raess v. Doescher
i. Facts
88
1. P (doctor) screamed at D for his work

performance aggressively, with clenched fists,
red face, veins, swearing
2. P backed D to a wall and D believed he was going
to be hit
ii. Rule
1. Only need evidence to prove that assault
occurred, assaulter had requisite intent, and
reaction was reasonable to support damages
iii. Holding
1. Sufficient evidence supporting assault
2. Adversely affected Ds quality of life
10. Battery
a. Involves both mental and conduct elements
i. Conduct: In battery, victim must have been touched or
suffered contact
1. Contact has wide meaning: includes being struck
by weapon or instrument and any harmful or
offensive contact with an article with which
victim was in contact with
ii. Mental: D mustve intended the act in question
1. Must have intent to do the act in question AND
intent to do something harmful or offensive must
be proved
OR
2. Ds conduct was reckless
a. First establish there was serious risk of
harm of which D was aware when he
acted the way he did
b. DONT have to show D intended to be

a. Created to deal with those attempting battery failed to make
contact and those who attempted to threaten/scared
inadvertently made contact
i. Mental element could be transferred to make the D
liable for what he actually committed
ii. Also intent could be transferred if someone else was
assaulted/battered
b. Intent for one tort or victim could sustain a verdict of liability
for the other tort towards a different victim
c. Cannot be simultaneously liable for both an intentional tort
and negligence
89
d. Baska v. Scherzer
i. Facts
1. Ps daughter hosted party D attended. D got in
fight with another boy and P tried to break up
fight and was hit in the face
ii. Rule
1. An action doesnt need to be directed at the P to
give rise to liability for intentional torts
2. Transferred intent allows the tort of battery and
assault may be committed even if the victim is
not who the D intended to strike or hit
e. Cobbs v. Grant
i. Facts
1. P experienced many of the risks his surgery held
that D failed to tell him about
ii. Rule
1. Single intent theory would not allow for the
choice of battery or negligence since every
improper surgery would then be considered
battery unless the surgeon was completely
unaware of what he was doing
iii. Holding
1. Physicians are obligated to inform patients of
risks, benefits, and alternatives that a reasonable
person would consider material
f. Levin v. United States

i. Facts
1. P consented to surgery but tried to orally rescind
his consent
2. D proceeded anyways and P suffered
complications
3. P sued for battery and negligence negligence
was dismissed
ii. Rule
1. FTCA allows a P to bring a tort claim against US
unless it is an intentional tort like battery
2. Gonzales act allows special exceptions for
alleged wrongful or negligent medical care
iii. Holding
1. P was allowed to bring claim
12. Defenses
a. 3 main affirmative defenses to assault or battery:
90
i. Consent: complete defense shows Ds conduct wasnt

wrongful at all but entirely justified
ii. Self-defense: degree of force or threat used by D was
reasonable in the circumstances to keep himself from
danger imposed by whom he assaulted or battered
then actions are justified
1. If degree of force was beyond what was
reasonable, liability may be established
iii. Emergency: D simply had no other option bec of the
danger he was in or where D acted for apparent victims
own good
1. Person pulls another out of way of a speeding car
E. FALSE IMPRISONMENT
4. The Elements
a. Mental and conduct element
i. Mental: same as battery may be recklessly
1. D who meant to commit FI but committed
assault or battery is liable for the latter
ii. Conduct: confining someone else without lawful
authority in circumstances where
1. That other person is aware of his confinement
a. Awareness of loss of liberty is
compensable so dont need to prove
actual harm
b. If unaware, only get compensation if you
can prove harm like being locked,
unconscious, or in a small space with
fumes
OR
2. Such confinement causes harm to the victim
5. Sullivan v. County of Los Angeles
a. Facts
i. Ps jail time expired and wasnt released for 2 weeks
b. Rule
i. No sovereign immunity for false imprisonment.
c. Holding
i. If sheriff knew or shouldve known the imprisonment
was unlawful, he had duty to investigate
6. McCann v. Wal-Mart Stores, Inc.

a. Facts
i. P and children were at Ds store and were blocked when
leaving employees asked them to come with them bec
they had been caught stealing before
91
ii. D said they were calling police but only called security
to see if it was actually the same shoplifter it wasnt
iii. Employees acknowledged mistake and P left
b. Rule
i. FI occurs when person is confined intentionally without
lawful privilege and against consent within limited area
for any appreciable time, however short
c. Holding
i. Adequately proved elements of FI
F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
12.Origins
a. Intentional infliction of emotional distress (IIED):
Circumstances where someone whose caused emo distress by
anothers intentional wrongdoing may be able to claim
damages
b. Wilkinson v. Downton: first case to recognize IIED
i. Not really a case of IIED P actually suffered physical
harm from practical joke harm was caused by emo
distress though
ii. Relied on Johnson v. Sampson but that doesnt explain
what the cause of action is
13.State Rubbish Collectors Assn v. Siliznoff

a. Facts
i. D picked up trash from X but P thought that was
territory of someone elses pickup
ii. P called D and ordered him to give the money to X
iii. D became frightened and finally agreed to pay X
iv. D became sick and missed work
b. Rule
i. In the absence of privilege, a party is liable for damages
for intentionally subjecting another to mental distress
even without intending to cause bodily harm if the harm
that results was foreseeable.
14.The Restatements
a. An actor who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional harm to another is
subject to liability for that emotional harm and if the emotional
harm causes bodily harm, also for the bodily harm
b. Emotional harm is impairment or injury to a persons
emotional tranquility
c. 4 elements of IIED:
92
i. Extreme and outrageous conduct by D

1. Conjunctive! Must prove both objectively
2. Two stage process to determine:
a. Judge decides whether there is sufficient
evidence on which a reasonable fact find
could conclude conduct was extreme and
outrageous
b. If so, then jury decides whether conduct
qualifies to be characterized in that
manner
3. Asks how a reasonable person would feel
4. Cant hold someone liable bec their conduct is
unpopular
ii. The Ds INTENT to cause or reckless disregard of the

substantial certainty of causing, severe emo distress
iii. The victims actual suffering of severe emo distress
iv. Causation of the victims emo distress by the Ds
extreme and outrageous conduct
15.Snyder v. Phelps
a. Facts
i. D lawfully held protest outside of service mans funeral
on public grounds
b. Rule
i. Whether Defendants are liable turns on whether the
claimed speech is private or public in nature. If the
speech is public, the First Amendment provides greater
protection than if the speech is private.
c. Holding
i. A church protesting a military funeral on public land in
a peaceful manner is considered public speech
protected by the First Amendment.
16.Intent
a. Must be shown that actor desired to inflict severe emo distress
or that he was certain or substantially certain that distress
would occur as result of his conduct
b. Intent applies not so much to the act itself as to the
consequences of that act doesnt have to relate to Ds conduct
i. Accordingly any outcome which occur and which the
actor desired to accomplish is intentional
ii. Includes any outcome that was substantially certain to
be an outcome that was intended by actor even if she
had not subjectively intended
93
c. Intent can be proved by establishing:

i. The wrongdoer had specific purpose of inflicting emo
distress
OR
ii. That wrongdoer intended his specific conduct and this
conduct was substantially certain to cause emo distress
d. Intent element not satisfied if D acts within legal rights
17.Transferred Intent
a. Where such conduct is directed at a 3rd party, the actor is
subject to liability if he intentionally or recklessly causes
severe emotional distress:
i. To a member of such persons immediate family who
isnt present at the time, whether or not such distress
results in bodily harm
OR
ii. To any other person who is present at the time, if such
distress results in bodily harm
b. Third restatement doesnt include this provision
i. Probably seldom used
c. If the conduct intended to inflict emo distress doesnt reach its
intended party but instead affects another person, then it
might be more appropriate to treat such emo harm as been
brought by negligence
i. Because an individual cannot harm another both
intentionally and accidentally, conduct inflicting emo
harm on a 3rd
party is NEID
18.Boyles v. Kerr
a. Facts
i. D taped himself having sex with P and showed others
causing severe distress to P
ii. P claimed negligent infliction of emo distress
b. Holding
i. Clearly supported an intentional injury
19.IIED and Traditional Dignitary Torts

a. Can intent be transferred between IIED and more traditional
dignitary torts?
i. The law is best conceived as requiring proof D intended
to do harm and that the precise tort involved turns on
Ds act and its consequences
b. Dickens v. Puryear
i. Facts
1. D took P to woods and threatened him with
pistol and handcuffed him to beat him also
94
threatened to castrate him didnt let him go for

two hours
ii. Rule
1. A threat of future harm that is apparently
intended to and which does inflict mental
distress is actionable as an infliction of mental
distress.
20.Severe Emotional Distress

a. Liability only arises when the emo distress exceeds that which
a reasonable person in similar circumstances could endure
b. Objective! Jury decides BOTH
i. That the victim suffered emo distress that was SEVERE
1. To keep courts from flooded petty claims
2. So no one can claim simply bec they react to
some admittedly severe annoyance in a highly
idiosyncratic manner
ii. That a reasonable person in same circumstances
couldnt be expected to endure such distress
c. Once this is proved, damages are based on subjective suffering
21.Harassment
a. Title VII: statute to deal with bullying and discrimination in the
workplace
i. Doesnt require proof of actual mental injury
b. Harris v. Forklift Systems, Inc.
i. Facts
1. P was sexually harassed by her employer and D
argued it wasnt severe enough since it didnt
affect her psychologically or impair her work
ii. Rule
1. Sexual harassment doesnt have to impair or
affect the employees well being to create an
abusive work environment and violate Title VII
2. Just have to show environment was hostile or
abusive
22.Taylor v. Metzger
a. Facts
i. P was black sheriff who was racially insulted by D once
but was severely affected by it
b. Rule
i. A single event, in the right circumstances, may be
extreme and outrageous conduct and give rise to IIED
c. Holding
95
i. A supervisors words especially racial slurs can cause

extreme emo distress.
96

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2644 Bickel Torts Spring 2014

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PROFESSOR ROBERT BICKEL

A. FUNCTIONS AND PURPOSES

1. Doctrine, Policy, Purposes

3. Optimal Deterrence, Risk and Insurance

4. General Deterrence: deterring all individuals, businesses, govt and

i. Dont know the torts or the rules

6. Economic Efficiency: Evaluating Risk

7. Distributive Justice (aka loss distribution)

9. Denunciation or Stigmatization: society may blame, denounce, or

10. Appeasement of Vengeance

11. Retribution: tortfeasors be punished according to their degree of

13. Corrective Justice

b. Little to no relation to actual tort law

14.Redress of Social Grievances

15. JAire Corp. v. Gregory

16.Scibelli v. Pennsylvania RR Co.

i. Playground doctrine triggers where the owner has

1. What is Vicarious Liability?

2. Joint and Several Liability

3. Employers and Employees

i. Was the direct tortfeasor an employee of the employer

1. Employee v. Independent Contractor

C. Integration test: looks at amount of

3. Negligent Hiring & Supervision

ii. If so, was the employee acting in the course of his

1. Not as clear today as many employees have greater

4. Lister v. Hesley Hall Ltd.

II. NEGLIGENCE- treat Ds state of mind as irrelevant absence of conscious

2. Foreseeability: whether a reasonably prudent person wouldve

3. Elements of a Prima Facie Case *** SEE FLOWCHART

ii. DOES NOT expose a person to potential liability

5. Ultramares Corp. v. Touche

6. Palsgraf v. Long Island Railroad Co.

10. Macpherson v. Buick

2. Must be knowledge that in the usual course of

11. Mussivand v. David

12. Differing Conceptions of Duty

13. Aikens v. Debow

14. Curd v. Mosaic Fertilizer

2. Willis v. Gami Golden Glades PROFESSOR ROBERT BICKEL

III. FUNDAMENTAL CONCEPTS

C. FUNCTIONS AND PURPOSES

17. Doctrine, Policy, Purposes

18. Policy Objectives

b. Moral Argument/Justification: moral argument supporting a

19. Optimal Deterrence, Risk and Insurance

20.General Deterrence: deterring all individuals, businesses, govt and

22. Economic Efficiency: Evaluating Risk

a. Conduct is worthwhile if money to be made > potential costs;

23. Distributive Justice (aka loss distribution)

25. Denunciation or Stigmatization: society may blame, denounce, or

26. Appeasement of Vengeance

27. Retribution: tortfeasors be punished according to their degree of

a. Cannot recover if cannot prove by preponderance of evidence

29. Corrective Justice

30.Redress of Social Grievances

31. JAire Corp. v. Gregory

1. Extent to which transactions was intended to

32.Scibelli v. Pennsylvania RR Co.

4. What is Vicarious Liability?

5. Joint and Several Liability

a. Several means each party can be sued individually for total