I.

Intentional Torts
A. Torts to Persons
1. Basics
a. Prima Facie
i. Intent
ii. injury
iii. causation
iv. damages
b. objective standard
i. the “reasonable person” standard
▪ reasonably prudent
2. Battery
a. one is liable for battery if:
i. he ACTS intending (INTENT)
▪ or within “substantial certainty”
ii. to CAUSE
iii. a harmful or offensive CONTACT
▪ bodily contact
▪ offensive to personal sense of dignity
iv. HARM occurs
b. Restatement §13
i. “An actor is subject to liability to another for battery if a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and b) a harmful contact
with the person of the other directly or indirectly results”
c. Intent to contact
i. Waters v. Blackshear
▪ facts
° kid was playing w/ firecrackers
° placed one in another kid’s shoe
° lit firecracker
° burned kid
▪ rule
° intent is discerned through behavior
ii. Polmatier v. Russ
▪ facts
° man enters schizophrenic rage
° bludgeons and murders father in law
▪ rule
° intent to act matters, not intent for specific consequence
● “An insane person may have an intent to invade the interests of
another, even though his reasons and motives for forming that
intention may be entirely irrational”
● contrasted with reflexive or compulsive act
d. Intending Harmful Contact
i. Nelson v. Carroll
▪ facts
 ° man came into club trying to collect debt
° starts pistol whipping and gun accidentally discharged and hit the other
▪ rule
° D is responsible for all actions associated with unlawful actions
● costs brought to injuring party
e. Offensive Contact
i. Restatment §19
▪ “offensive to a reasonable sense of personal dignity, it must be one which
would offend the ordinary person and as such one not unduly sensitive”
ii. Leichtman v. WLW Communication
▪ facts
° anti-smoking advocate in for interview
° man comes in and blows smoke in his face
▪ rule
° ‘offensive’ meaning ‘disagreeable or nauseating or painful because of
outrage to taste and sensibilities or affronting insultingness.’
° Conduct is offensive primarily b/c of underlying intent; however, note
that damages will be nominal.
iii. Andrews v. Peters
▪ facts
° man tapped back of coworkers knee, coworker fell and broke kneecap
▪ rule
° intent to contact, not intent to injure
iv. White v. Muniz *
▪ facts
° Alzheimer’s lady punched nurse trying to put her to bed
▪ rule
° dual intent
● intent to contact AND intent to injure
f. Damages
i. Plaintiff typically seeks $$$ in tort cases
ii. types of damages
▪ compensatory damages
° awards for harms suffered
▪ punitive damages
° damages to punish defendant
▪ nominal damages
° compensatory, but for offense not harm
iii. Taylor v. Barwick
▪ facts
° P was inmate and D was guard, D poked P with tree branch
▪ rule
° P can only receive nominal damages when no injury is suffered
iv. Gunn v. Robertson
▪ facts
 ° P & D were in car accident, accident triggered P’s preexisting
spondylothesis and now required surgery
▪ rule
° D takes his victim as he finds him and is responsible for all natural and
probalbe consequences of tortuous conduct
3. Assault
a. Protect one’s ability to be free from imminent apprehension of harm
i. Restatment §21
▪ “An actor is subject to liability to another for assault if (a) he acts intending
to cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension.
ii. Cullison v. Medley
▪ facts
° P talked with D in parking lot and asked her out, that night her family
came to P’s house and intimidated him, D’s father had gun as threatened
him to stay away
▪ rule
° apprehension must be one the reasonable person would experience
° a “touching of the mind”
b. Intending Contact and Imminent Contact
i. Brower v. Ackerly
▪ facts
° citizen complained about ackerly billboards, ackerly threatened them
▪ rule
° threat must be from imminent harm
● not future harm
° Restatement §31
● Words alone are not enough to make an actor liable for assault
“unless together with other acts or circumstances they put the other in
reasonable apprehension of an imminent harmful or offensive
contact.”
4. Transfer of Intent
a. Transfer of intent between torts
i. allows P to receive damages for battery when D only intended assault and vice
versa
b. Transfer of intent between people
i. D liable for one person when intended tort on a 3rd person
c. Hall v. McBryde
i. facts
▪ D shot gun attempting to assault passer by, but hit neighbor (P)
ii. rule
▪ “the intent follows the bullet”
▪ D must intend that act, not the consequence
d. Restatement §16
i. (1) If an act is done with the intention of inflicting upon another an offensive but
not a harmful bodily contact, or of putting another in apprehension of either a
 harmful or offensive bodily contact, and such act causes a bodily contact to the
other, the actor is liable to the other for a battery although the act was not done
with the intention of bringing about the resulting bodily harm.
ii. (2) If an act is done with the intention of affecting a third person in the manner
stated in Subsection
▪ (1), but causes a harmful bodily contact to another, the actor is liable to such
other as fully as though he intended so to affect him.
5. False Imprisonment
a. prima facie
i. intent
ii. confinement
▪ no reasonable exit
iii. P conscious of confinement
iv. no consent
v. no privilege
b. Vumbaca v. Terminal One Group Ass’n L.P.
i. facts
▪ p was passenger on plane, plane was stopped on tarmac for about 7 hours
▪ Captain wouldn’t let P leave
ii. rule/test
▪ defendant intended to confine him
▪ plaintiff was conscious of confinement
▪ P did not consent to confinement
▪ confinement was not otherwise privileged
iii. airline privilege
▪ passengers consent to flying
° knowing what may happen
▪ short term stays are OK
▪ if negligence leads to intent of confinement
° still not false imprisonment
c. Barrett v. Watkins
i. facts
▪ P was in remote public rec. area and was blocked by truck when trying to
leave
▪ D wouldn’t move truck until police made him, saying P wasn’t supposed to
be there
ii. rule
▪ Vumbaca test
d. Zavala v. Wal-Mart Stores Inc.
i. facts
▪ P was contract janitor at walmart, doors were locked at night and manager
wasn’t always there to unlock doors, P was locked in and couldn’t leave,
claim may lose job for using emergency exit
ii. rule
▪ conduct reasonably understood by another to be consent is effective as
consent
° working knowing doors are locked at night
 ▪ consent only terminates when actor knows or has reason to know the other is
no longer willing to participate in conduct
▪ knowledge of reasonable means of escape precludes from false imprisonment
e. Shopkeeper’s Privilege
i. the 4 “reasonables”
▪ detention grounds
° probable cause
▪ time in confinement
▪ manner of confinement
▪ force to detain
ii. Padlo v. UG’s Food Center Inc.
▪ facts
° P and friend were acting shifty in store, management confronted P and
pulled stolen items out of pockets. P was held until police came and
questioned them
▪ rule
° one is legally justified for detention if theft or aiding and abetting is
suspected
6. Intentional Infliction of Emotional Distress
a. basics
i. right to be free from serious emotional distress
ii. courts are reluctant to use and seek to limit when P can recover
iii. tort of outrageous conduct
▪ tort of outrage
b. Factors
i. (restatement) one who by
▪ extreme and outrageous conduct
▪ intentionally or recklessly
▪ causes
▪ severe emotional distress to another, AND
▪ if bodily harm to the other results from it
° for such bodily harm
ii. serious mental injury
▪ vomit rule
° evidence of physiological manifestations of distress
▪ sleeplessness
° evidence of psychological manifestations
▪ psychological treatment
° evidence medical treatment sought
▪ duration
° evidence of duration and intensity (of above)
▪ disfunction
° evidence of significant impariment of daily life
▪ character of conduct as predicting distress
° conduct is so appauling it would be distressing
iii. intent, proof the D...
 ▪ intent to cause, OR
▪ recklessly caused by P’s severe emotional distress
c. Zalnis v. Throughbred Datsun Car Co.
i. facts
▪ P was sold car by mistake for a loss, was lured back in under false pretenses
▪ D knew that P saw husband kill himself and P was susceptible to ED
▪ P was assaulted
° called “french whore,” followed through showroom, threatened
▪ P was battered
° grabbed by the arm
ii. rule
▪ outrageous conduct may arise if D knows P is susceptible to emotional
distress
d. Strauss v. Cilek
i. facts
▪ D had affair with P’s wife, P found out after affair ended
▪ D intended to leave family for P’s wife, P’s wife was unhappy with her
marriage
▪ P’s wife had previous affair for 5 years with another or P’s friends
ii. rule
▪ act must be so extreme in degree as to go beyond all possible bounds of
decency to be regarded as atrocious and utter intolerable in a civilized society
▪ a recitation of facts would lead the average person to exclaim “outrageous”
e. Rogers v. Louisville Land Co.
i. facts
▪ P’s son died in motorcycle accident and was burried in D’s cemetary
▪ P was told cemetery was well-kept, but it wasn’t
° grass was high, headstones overturned, roads in bad condition, debris
throughout cemetery
ii. rule
▪ to prove severe emotional distress, one must prove
° physiological ED
° psychological ED
° sought med treatment
° duration and intensity
° D’s conduct cuased impairment in P’s daily life
° D’s extreme and outrageous conduct
▪ can be done through testimony by P, layperson (friend, family, colleagues) or
medical expert
f. Dana v. Oak Park Marina Inc.
i. facts
▪ D owns marina w office and restrooms w/ changing area, D installed cameras
in RR and viewed and spread content
ii. rule
▪ intent to cause, or disregard of a substantial probability of causing, severe ED
g. Green v. Chicago Tribune Co.
 i. facts
▪ D published photos of P’s dying son w/o consent, D blocked P from entering
son’s hospital room
ii. rule
▪ 3rd person can recover if present when ED commited to family, whether or
not bodily harm result, OR
▪ if present when ED occurs and results in bodily harm
B. Torts to property
1. Trespass to Land
a. protects right to exclusive possession of property
b. Thomas v. Harrah’s
i. facts- D went to P’s property to reach a wall to work on
ii. rule- intent to enter land in questionable
▪ not to invade property
c. Baker v. Shyukir
i. damages
▪ nominal
° typically not a lot
▪ compensatory
° doesnt need to be foreseeable
ii. “liable for physical harm-causing to posessor or land or things or members of
household
iii. caused by
▪ act done
▪ activity carried on; OR
▪ condition created by trespasser
iv. even if he wouldnt be liable if he werent a tresspasser
d. Defenses
i. Private Necessity
▪ still liable for damages to property
° Vincent v. Lake Erie Trans Co.
ii. if necessary to prevent serious harm to:
▪ actor, land, or chattel
▪ unless knows or has reason to know is unwilling
e. public necessity
i. ok if believes that its necessary to avert imminent public disaster
▪ Martin v. Idaho
2. Trespass to Chattel
a. Intentionally disposessing another of chattels
i. dispossession (R2T 221)
▪ commited by intentionally:
° taking chattel from another w/o consent
° obtaining chattel by fraud or distressingbarring posessors access to
chattels
° destroying chattel while in another’s posessoin
° taking chattel into custody of the law
ii. using or intermeddling w/ chattel in posession of another’s
 ▪ R2T 217
3. Conversion
a. intentionally exercise of dominion or control over chattel
i. which seriously interferes w/ right of another to control it
ii. actor may justly be required to pay full value of chattel
b. destruction or alteration
i. impairing the condition, quality, or value of chattel
c. US v. Aurora & R2T 222A
i. factors to consider in determining if intereference is enough to be conversion
▪ extent and duration of actor’s exercise of dominion (control)
▪ actor’s intent to assert a right inconsistent w/ other’s right to control
▪ actor’s good faith
▪ extent and duration of resulting interference w/ other’s right to control
▪ harm done to chattel
▪ inconvenience and expense caused to other
II. Negligence
A. Prima Facie
1. DUTY owed from d to P
a. to act in a certain way
2. BREACHED duty by D
3. CAUSE
4. DAMAGES
B. Duty
1. Reasonable Person Standard
a. Vaughn v. Menlove
i. facts
▪ D build hayrick near P’s property, hayrick spontaneously combusted,
spreading to P’s property
ii. rule
▪ cases should be judged based on how the reasonably prudent person would
act
° no matter party’s intelligence or lack thereof
b. Parrot v. Wells Fargo & Co (the nitroglycerin case)
i. facts
▪ D was in possession of box that contents had spilled, D went to open the box
and it exploded, destroying P’s property and killing a handful of people
ii. rule
▪ one must take steps that a person of ordinary prudence and caution would use
c. McCarty v. Pheasant Run Inc.
i. facts
▪ P was staying at D’s hotel, back sliding door was not locked, someone broke
in and tried to rape P
ii. rule
▪ learned hand test
° B<PL
d. Stewart v. Motts
i. facts
 ▪ P offered to help D repair fuel tank on car, gas that was poured in carburetor
exploded when car back fired and injured P
ii. rule
▪ D is held to the standard of the “reasonable person” even if using dangerous
instrumentalities
° usually more careful with dangerous instruments
e. Myhaver v. Knutson
i. facts
▪ D was driving on highway and truck was going wrong way, D swerved to
miss the truck and went into the other lane hitting P
ii. rule
▪ Sudden Emergency doctrine provides D is not liable for negligence if faced
w/ sudden and unexpected danger and acted reasonably under the
circumstances to avoid harm to self and others
▪ emergency → impaired reasonable person
° lowers D’s standard of care
▪ emergency can’t be of routine sort caused by impending accident
° routine → typical
° still sudden and unforeseen
f. Cervelli v. Graves
i. facts
▪ P lost control of his car on icy road, D (in cement truck) tried to pass and the
two collided
ii. rule
▪ Juries may take into account one’s extensive experience or skills
° when provable (i.e. certification)
g. children and disabled
i. Robinson v. Lindsay
▪ facts
° D was driving snowmobile pulling P in tube, lost control and they
crashed, P lost thumbs in crash
▪ rule
° if activity is inherently dangerous, a child should be held to the same
standard as an adult
° the “resonable kid” stnadard
● child w/ same age, intelligence, maturity, training, and experience
● EXCEPT inherently dangerous activities
1. ex. motorized activities, firearms, etc.
ii. Peterson v. Taylor
▪ facts
° P (7 yo) went into D;s backyard and was playing with fire, got gas can
from shed and burned it, went back for more but spilled some on himself,
lit and got burned
▪ rule
° children must conform to the reaonableness of a person of like age,
intelligence and experience under like circumstances to avoid being
found negligent
 iii. Poyner v. Loftus
▪ facts
° P is legally blind, walking up ramp to D’s business, heard name called
and turned head, wasn’t watching where going and fell off ramp where a
bush used to be
▪ rule
° persons w/ physical disabilities are held to the standard of a reasonable
person w/ that disability
iv. Creasy v. Rusk
▪ facts
° D’s wife put him in nursing home when couldn’t care for him w/
alzhiemer’s, D was known to be aggressive and belligerent, P was injured
try9ing to put D to bed
▪ rule
° people w/ mental disabilities are held to the same standard of care as
typical ppl
▪ policy reason
° allocates loss to the one who caused
° provides incentive to caregivers to “restrain”
° removes fraud chances
° avoid trying to assess disability
° “you play, you pay” - fairness
h. Recklessness
i. Sandler v. Commonwealth
▪ facts
° P was riding bike through tunnel, vandals broke lights and stole drain
cover, leaving 8x12x8 hole, bike snagged and P fell, D knew vandals
stole cover and broke lights
▪ rule
° behavior that is “willful, wanton, or reckless” is liable
2. Special Relationship
a. one who entrusts themselves into the control and protection of another
i. consequent loss of control to protect self
b. common situations
i. common carrier-passenger
ii. inkeeper-guest
iii. employer-employee
iv. landlord-tennant
v. invitor-invitee
c. Dykema
i. facts- P was at b-ball game, started to rain, P was struck by lightning
ii. rule- Unless P contracted with, or surrendered some control to D, it is not likely a
special relation exists
d. Graff
i. facts- D hosted party w/ booze, guest drove back drunk and was in accident w/ P
ii. rule- focus should be on driver’s responsibility as the person best able to avoid
situation
 ▪ factors for policy based decision:
° foreseeability of injury
° utility of actors conduct
° burden of prevention
° functional response of the public
e. Kubert v. Best
i. facts- 3d party was texting friend, person receiving messages was driving and
wrecked
ii. rule- if 3d party’s conduct is unreasonably risky because person knows would
cause distraction and other party’s negligence
3. Special Duties
a. owners/occupiers of land
Category Standard of Care Owed by Landlord
Trespasser No wanton or reckless conduct
Trespasser w/ intent to commit crime Cannot intentionally hurt
Frequent child trespassers (attractive Reasonable care to protect
nuisance)
Invitee Reasonable care & actual knowledge
Licensee No wanton, must warn if knowledge
i. Ryals v. US Steel Corp
▪ facts- P went to mine to steal copper, only one rusty warning sign & gate
open
▪ rule- two classes of trepassers
° mere trespassers
● landowner cannot wantonly or recklessly injure
° trespasser w/ intent to commit crime
● landowner cannot intentionally hurt
2. Merrill
a. facts- kid caught eel, climbed fence to cook on live wire, got burnt
b. rule- no attractive nuisance if kid appreciates risk
3. Attractive Nuisance (R2T 339)
a. land owner liable for physical harm to children trespassing caused by artificial
condition upon land IF
i. condition exists in place where owner knows or has reason to know children will
trespass
ii. condition is one of which posessor knows or has reason to know and which he
realizes or should realize will involve unreasonable risk of death/serious injury
to children
iii. children because of youth do not discover condition or realize the risk involved
in intermeddling w/ it or in coming w/in area made dangerous made by it
iv. utility to the possessor to maintain the condition and the burden of eliminating
the danger are slight as compared w/ risk to children involved
v. possessor fails to exercise reasonable care to eliminate risk or otherwise protect
children
4. Hill v. National Grid
 a. facts- P played football on vacant lot, got cut on protruding metal spike
b. rule- to determine if attractive nuisance
i. did D know or had reason to know children were likely to trespass on proeprty
ii. did D know or have reason to know of dangerous condition
5. Knorpp v. Hale
a. facts- P was killed while cutting down tree at girlfriend’s house
b. rule- to determine if invitee or licensee, P must prove
i. invitee
▪ landlord had actual/constructive knowledge of condition
▪ condition posed unreasonable risk of harm
▪ landlord did not exercise reasonable care to eliminate risk
▪ failure to use such care was proximate cause of injuries
ii. licensee
▪ condition created unreasonable risk
▪ owner actually knew of condition
▪ licensee did not know of condition
▪ owner failed to exercise ordinary care to protect licensee
▪ owners failure was proximate cause of injuries
6. Richardson v. the Comodore
a. facts- P was injured when piece of ceiling fell on him at bar
b. rule- owner liable to invitees for condition on land if:
i. knows or by exercise of reasonable care would discover condition & should
realize it involves unreasonable risk of harm to invitees
ii. should expect they will not discover or realize danger, or will fail to protect
themselves against it
iii. fails to exercise reasonable care to protect them against danger
7. Nisivoccia v. Glass Gardens Inc.
a. facts- P slipped on grapes by check out in store
b. rule- nature of business creates hazard, inference of negligence shifts burden to D to
“negate the inference by submitting evidence of due care”
i. look to D’s patterns of cleaning, checking on loose items, etc.
ii. P must prove chosen style of business made presence of dangerous condition
reasonably likely
8. Limits on Liability
a. D may not be liable if courts determine D did not owe a duty or was not prox cause
i. even if D was tortious and cause-in-fact of P’s injuries
b. Palsgraf
i. facts- person was trying to catch train, dropped package on track, packages full
of fireworks, fireworks hit clock that fell of P
ii. rule:
▪ Cardozo (looking forward approach)
° duty owed to foreseeable victims
° P must be inside “zone of danger”
● if not foreseeable, not in zone of danger, then no duty
▪ Andrews (hindsight approach)
° anyone harmed is a victim
° duty owed to everyone
 ● foreseeability is a just one aspect
c. Heyges v. Unjian Enterprises
i. facts- D was in accident w/ P, P was injured, injury resulted in child being born
w/ dissability
ii. rule- negligence is found on an owed duty, founded only on foreseeability of
siome harm to P
C. Proving Breach
1. violation of statute (negligence per se)
a. Martin v. Herzog
i. facts
▪ P was driving w/ husband at night on dark road w/ no headlights, D was
coming around bend through fog, didnt see P, they wrecked and husband died
ii. rule
▪ failure to follow statutory obligations can constitute negligence per se and
can hold one to contributory negligence
b. Thomas v. McDonald
i. facts
▪ D’s truck stalled on hill, truck had no safety equip (as mandated by law)so
didn’t set flares up, P didn’t see in time and crashed into truck
ii. rule
▪ P must show he is part of the class the statute is protecting and that harm was
suffered from breach of that statute
c. Wawensa Mutual Ins. v. Mattlock
i. facts
▪ D bought cigarettes for himself and underage friends, they were smoking in
the woods, dropped cigarette, tried to put it out, failed and left, fire started on
property insured by P
ii. rule
▪ to apply negligence per se, one must prove another violated a statute that
gave rise to the cause of action the statute was trying to prevent
d. Sikora v. Wenzel
i. facts
▪ D was landlord to property P was at party when deck collapsed, it was found
the deck wasnt properly built up to code, D had no knowledge of this
ii. rule
▪ failure to comply w/ code constitutes negligence per se, which may be
excused to lack of notice
2. industry custom
a. The TJ Hooper
i. facts
▪ Hooper was pulling barges and a storm came in and barges sank, radio
warning was sent out by Hooper did not have a working radio on board, was
not standard at the time
ii. rule
▪ if a new technology is developed and widely used (although not standard in
industry) it is negligent to not use it
b. Luidman v. Davenport Assumption High School
i. facts
 ▪ P was playing baseball on D’s field, there were openings on both sides of the
dugout, P got hit by foul ball and suffered serious injury
ii. rule
▪ evidence of custom is allowable, but is given the same weight as any other
testimony and cannot prove lack of negligence
c. Wal-Mart Stores Inc. v. Wright
i. facts
▪ D slipper and fell in garden section, entered walmart’s manual as evidence
and trial court based instructions off of “reasonable care” from the manual
ii. rule
▪ one is always held to an objective standard of reasonable care, despite if they
hold themselves to a higher or lower standard
3. Res Ipsa Loquitur
a. prima facie
i. accident is of a kind that doesn’t occur in the absence of someone’s negligence
ii. must be caused by an agency or instrumentality w/in exclusive control of D
iii. must not be due to any voluntary act or contribution of P
b. Byrne v. Boadle
i. facts
▪ p was passing in front of D’s building and a barrel of flour fell and hit him
ii. rule
▪ RIL can be used to prove negligence if the device was exclusively in D’s
control and would not happen under reasonable care
c. Shull v. BF Goodrich Co.
i. facts
▪ P was truck driver for D, was unloading at facility and dock plate
malfunctioned throwing and injuring P. D alone was in control of the dock
plate and was in charge of maintenance
ii. rule (RIL can be invoked if)
▪ the injuring instrumentality is shown to have been under the exclusive
control of the defendant, AND
▪ the accident is one which in the ordinary course of things does not happen if
those who control the instrumentality use proper care
d. Dover Elevator Co. v. Swann
i. facts
▪ P’s elevator was not leveling properly, even though it was recently serviced,
2 connectors were put in the wrong way, there were not extra connectors on
site, and P only tried cleaning them
ii. rule
▪ RIL cannot be invoked in the presence of direct evidence
D. Legal Cause (cause-in-fact)
1. But-For Causation
a. P would be free from harm BUT-FOR D’s negligence
i. also called factual causation
ii. based on preponderance of the evidence
▪ more likely than not
b. Cay v. Louisiana
i. facts - P was drunk and fell of bridge, guard rails were not high enough
 ii. Rule – inferences drawn from circumstantial evidence must demonstrate cause
by a preponderance of the evidence
c. Lyons v. Midnight Sun Trans.
i. Facts- P pulled out in front of truck and continued to pull out after the truck hit
her car, P was killed
ii. rule- without causation, even the most egregious negligence cant result in
liability
2. Alternatives to But-For test
a. Multiple Sufficient Causes
i. conduct of more than one defendant caused injury
▪ under but-for test, all could be free from liability
° more rigid
▪ once P proves each D’s acts sufficient to cause harm:
° burden shifts to Ds to prove why their action should be considered the
cause of harm
▪ each tortfeasor cannot escape liability by pointing to another
ii. Kingston v. Chicago RR
▪ Facts- D caused a fire, that fire later joined with another fire caused by an
unknown person, the combined fire destroyed P’s farm
▪ Rule- each party the contributes to damage can be liable for all damages
iii. Ford Motor v. Boomer
▪ Facts- P worked for D and at shipyard, both exposed P to asbestos, P died of
mesothelioma
▪ Rule- if multiple acts occur, each that would have been the factual cause
alone in the absence of the other acts, each acts is regarded as a factual cause
° R. 3d S. 27
° acts do not have to be concurrent in time, but must be “sufficient to cause
the harm contemporaneously”
b. Concert of action
i. permits injured P to impose liability on the tortious D as well as an addition D
▪ addt’l D’s relationship to P wouldnt be enough to satisfy but-for test
ii. Shin v. Allen
▪ Facts- D was passenger of car that collided with P, driver was drunk
▪ Rule- Addt’l D can be liable if he knows the first D has breached a duty and
also provided substantial assistance
▪ Substantial Assistance:
° nature of the wrongful act
● anti-social or dangerous behavior
° kind and amount of assistance
● SUBSTANTIAL assistance or encouragement
° Relation of parties
● special/power position
1. ex. employer-employee
° Presence or absence of the Addt’l D
● mere presence and failure to object is not enough
° D’s state of mind
● what D is thinking
 c. Alternative Liability
i. exposes an actor to liability even if theres a possibility that P’s injury is entirely
caused by someone else
▪ all actors act unreasonably, but only one or some caused the harm
▪ burden is on Ds to prove their conduct was not the legal cause of harm and
that others were
ii. elements
▪ 2 tortious acts by 2 or more actors
▪ P was injured as a proximate result of one of the acts
iii. Summers v. Tice
▪ facts- P shot while hunting, both D’s shot toward P at the same time with
identical shells
▪ rule- for harm resulting to a 3d party from tortious conduct of another, one is
liable if:
° he knows the others act constitutes a breach of duty; OR
● concert of action
° by giving assistance to another, their own conduct, separately considered,
constitutes a breach to a 3d person
● alt. Liability
iv. Burke v. Schaffner
▪ facts- P was pinned between truck and parked car, P alleges D was passenger
of car and pressed gas when moving over to drivers side, P settled with the
drive of the car
▪ rule- alt liability is only applicable when there is more than one D
3. Proximate Cause
a. D’s conduct and P’s harm must be close enough to justify imposing liability on the D
b. Directness test
i. D’s conduct is proximate cause if there is no intervening force between D’s
conduct and P’s injury
ii. Polemis
▪ facts- D knocked a plank that fell and hit a barrel in the hull of a ship, caused
fire to start
▪ rule- once an act is negligent, foreseeability is immaterial if the damage can
be traced to the act
iii. Laureano
▪ facts- P didnt have hot water, was boiling water to use for shower, banged
pots against each other and gout burned, sued landlord because of lack of hot
water
▪ rule- there cannot be an intervening act to meet the directness test
° banging pots was intervening act
c. Substantial Factor test
i. D’s conduct is the proximate cause if the conduct was important enough,
compared to other acts, to justify liability
ii. American Truck Leasing
▪ facts-building caught on fire, after fire was put out demo company came to
remove elevator, burnt debris fell on P’s truck
▪ rule- factors to determine substantial factor:
 ° number of other contributing factors
° if conduct caused a force or series of forces that were continuous and
active until harm
° time lapse
iii. Taylor v. Jackson
▪ facts- accident happened, traffic backed up, two hours later P was another
accident, P sued driver in first accident
▪ rule- where actors negligence is a substantial factor, mere lapse of time (no
matter how long) will prevent them from being the legal cause
d. Foreseeability test
i. treats cause-in-fact as proximate cause if accident was reasonably foreseeable
ii. Tiedler
▪ facts- P crashed car into brick wall, wall fell, wall was designed negligently
▪ rule- D doesnt need to foresee exact harm, only that general type of accident
is within scope of danger created by negligence
iii. Schaffer v. Hoffman
▪ facts- D hit P with his car, P had preexisting condition that made him more
susceptible to injury
▪ rule- D takes P as he found him and is liable for all resulting harm, even if
because of increased likelihood from existing condition
e. Risk Standard (R3T approach)
i. negligent person has duty to the world
▪ similar to Andrew’s dissent in Palsgraf
▪ very broad duty
ii. Thompson v. Kaczkinski
▪ facts- winds blew D’s trampoline onto road, D didn’t move trampoline, P
swerved to avoid trampoline and was injured
▪ rule- liability is limited to harms that result from risks that makes actors
conduct tortious
4. Intervening and Superseding Causes
a. intervening act
i. 3d partys act occurs after D’s act in chain of events leading to injury
b. superseding act
i. an intervening act D couldnt have reasonably foreseen
▪ all superseding acts are intervening
c. when is an intervening act superseding?
i. If superseding act is not foreseeable, then D absolved of injury
ii. an intervening act is not superseding when:
▪ it is a normal response to the negligent act and is foreseeable
▪ it could have been reasonably anticipated
▪ intervening conduct was could have been anticipated and the risk of it was
unreasonable
d. Price v. Blain Kern Artista
i. facts- P was wearing an HW Bush mask, P was injured when he was pushed over
and mask caused neck injury
 ii. rule- typically, a criminal or tortious act severs the chain of causation (making it
superseding); however, liability is appropriate if the other breach of duty is
reasonably foreseeable
e. McClenahan v. Cooley
i. facts- D left keys in car ignition, someone stole car and was in wreck
ii. rule- if an intervening act is a normal response to one’s negligence, the act is not
superseding
▪ so long as intervening act is reasonably foreseen
E. Damages
1. must be proven
a. i.e. medical bills
III. Negligent Infliction of Emotional Distress
A. Restatement section 48
1. actor who negligently injures another is liable for NIED to a third party when:
a. the 3d party perceives event contemporaneously, AND
b. is a close family member of the person suffering bodily injury
B. Test:
1. proximity to event
2. direct emotional impact
a. proven like in IIED
3. consanguinity/relationship to the injured
C. Robb v. Pennsylvania Railroad
1. facts- P’s car got stuck on negligently designed railroad tracks, P narrowly escaped
injury, P became emotionally disturbed
2. rule- R3T S 47(b): actor is liable for serious emotional if the conduct:
a. places the other in danger of immediate bodily harm and emotional harm results
from danger; OR
b. occurs in the course of specified categories of activities, undertakings, or
relationships in which negligent conduct is especially likely to cause serious
emotional harm
D. James v. Lieb
1. facts- P watched sister get killed by negligent truck driver, P was in zone of danger
(right next to accident)
2. rule- (from Dillon)
a. must be marital or intimate family relationship
b. dont have to physically see accident, but “shock must follow closely on the heels of
the accident”
c. emotional trauma doesnt have to be physical (because of advances in psychology),
but has to result from the death/serious injury
E. Grotts v. Zahner
1. facts- P and fiancee were in car accident, fiancee died, P sued
2. rule- fiancee is not considered related/family
F. Rabideau v. City of Racine
1. facts- P witness his dog shot by cops, sues for NIED
2. rule- Dog is not related
IV. Professional Liability/Medical Malpractice
A. Framework
1. same as negligence
a. duty
 b. breach
c. causation
d. damages
B. Professional Standard
1. courts vary on the standard of care
a. jury compares D’s professional conduct to their own profession’s position on proper
conduct; OR
b. jury’s conclusion on what is/should be reasonable professional conduct
2. Osborn v. Irwin Blood Bank
a. facts- P got HIV after receiving blood from D
b. rule- professional prudence is defined by actual or accepted practice w/in profession,
not on theories of “what should be done”
i. expert testimony is conclusive to determine standard of care
▪ shouldn’t be done by layman
3. Nowatske v. Osterloh
a. facts- P went to surgeon for detached retina, ultimately lost sight in eye
b. rule- claim arising out of highly specialized conduct is compared to conduct of those
with similar professional training
i. don’t compare generalists to specialists
C. Modified Locality Rule
1. Vegara v. Doan
a. facts- baby’s parents claim Dr’s negligence caused baby severe and permanent
damage
b. rule- held to the standard of the community and similar communities for comparison
i. expands the pool of experts, can be hard to find experts in local community
D. Informed Consent
1. Largey v. Rotham
a. facts- P went in for surgery, wasn’t notified of all the risks of the surgery
b. rule- to recover, P must prove that they wouldn’t have undergone the procedure if D
provided more information on the risks
i. risk of procedure, alternates to treatment, experience dr has in the area
2. Prudent Patient Standard
a. to recover for damages under informed consent, P must prove:
i. D provided less information than jurisdiction’s standards require D to provide
ii. there was causal link between the lack on information and the patient’s consent
to treatment
iii. the patient suffered and injury
E. Uncertainty in Identifying the Defendant
1. Ybarra v. Spanguard
a. facts- P alleges mishandling during surgery caused injury to back/shoulder/neck,
cannot identify who exactly caused injury
b. rule- When P receives unusual injuries while unconscious, they can use Res Ipsa to
infer that everyone who was in control of P’s body
i. burden shifts from P to D to prove they didnt act negligently
F. Predictable Malpractice
1. Weems v. Hy-Vee Foods
a. facts- P slipped in D’s store, later underwent surgery, surgery caused medical
meningitis, judge refused to give superseding instruction to jury
 b. rule- if negligent actor is liable for another’s bodily injury, he is also subject to
liability for additional harm resulting from third persons in rendering aid,
irrespective of if the aid was administered negligently or not
G. Statute of Limitations
1. Kerns v. St. Joseph’s Hospital
a. facts- P received radiation treatment, was told he’d get 30 treatments but got 25
instead, Dr never said why treatment stopped, P had medical issues and died, SoL
barred P from suing
b. rule- to surpass Statute of Limitations, P must prove:
i. Dr knew of alleged wrongful act and concealed it from the patient or had
information pertinent to its discovery and failed to disclose; AND
ii. patient did not know or could not have know through the exercise of reasonable
diligence, of his cause of action within the statutory period
H. Loss of Chance
1. Matsuyama
a. facts- dr’s negligence decreased P’s chance of survival, original chance of survival
was still less than 50%
b. rule- Proportional Damage Approach (how to calculate loss of chance)
i. calculate total damages allowable for the injury if it weren’t a loss of chance case
ii. calculate P’s chance of survival immediately before, but-for the misdiagnosis or
malpractice
iii. determine chance of survival as a result of malpractice
iv. subtract iii from ii
v. multiply value of (i) by value in iv
2. Petriello
a. facts- dr’s conduct increased chance of harm of developing a disease in the future
b. rule- if P can establish a breach of duty was substantial factor in present harm, is
entitled to compensation to the extent that future harm is likely to occur
V. Strict Liability
A. Beasts
B. Abnormally Dangerous
VI. Nuisance
A. Private (R2T 821D)
1. non-trespassing on anothers interest in private use and enjoyment of land
B. Public (R2T 843)
1. unreasonably interference w/ right common to public
2. circumstances include
a. if conduct involves significant interference w/
i. public health
ii. public safety
iii. public peace
iv. public comfort; OR
v. public convenience
b. whether conduct prescribed by
i. statute
ii. ordinance; OR
iii. administrative regulation
c. whether condict is of a
i. continuting nature; OR
 ii. has produced a
▪ permanent; OR
▪ long lasting
° effect
iii. AND
▪ actor knows or has reason to know has significant effect on public right
VII. Products Liability
A. MacPhearson v. Buick Motor Co.
1. facts- D sold car to dealer who sold it to P
2. rule- no privity requirement for strict product liability
a. dealer has duty to inspect→ can be held liable
B. Escola v. Coca Cola (Res Ipsa)
1. defective products can use RIL(is essentially equivalent to strict liability)
2. manufacturer in best position to:
a. prevent harm
b. control risks
c. distribute losses over society
3. consumers recover from retailers; retailers recover from manufacturer
a. under rule of indemnification
4. warrenties under K law provide for strict liability
a. tort law should resemble K law
5. moves PL from negligence to SL→ manufacturers should guarentee safe products
a. policy reasons:
i. deterance
▪ manufacturer in best position to make product safe/avoid injuries
ii. spread losses
▪ manufacturer in best position to bear the loss
C. Product Defect (R2T 402A)
1. if product is sold in defective condition that is unreasonably dangerous, seller is liable if:
a. seller is engages in buisness of selling such product; AND
b. product is expected to and does reach the consumer w/o substantial change in
condition of product
2. applies even if seller applied all possible care
3. applies even if no contractual relationship between injured party and manufacturer
D. Types of Defects
1. manufacturing defect (object focus)
a. product departs from intended design
b. product doesnt do what its supposed to→ standard set by “standard product”
i. single product deviates from the standard
c. Latex Glove
i. facts- P claims D’s gloves cause allergies, P claims manufacturing defect, allergy
can be reduced by washing procedure D has not adopted
ii. holding- product produced as intended, did not deviate from what was intended
▪ later developments/improvements does not show a product is/was defective
2. Design Defect
a. foreseeable risk of harm by product
i. could be reduced by adoption of a reasonable alternative design
3. Inadequate Warning
 a. foreseeable risk of harm that could have been reduced by instructions/warning
i. omission of warning renders product unreasonably safe
E. Tests
1. Consumer Expectation Test
a. Malcolm v. Evenflow
i. facts- car seats detach from car
ii. rule- dangerous beyond ordinary users expectations
▪ function of object and expectation of ads/marketing, reports, test drives
2. Risk Benefit Test
a. product defect in design, even if satisfies ordinary expectations
b. jury finds risk of danger inherent in design
c. outweighs benefit of such design
3. Risk-Utility Test
a. alternative design
i. foreseeability of risks
ii. instructions and warnings
iii. consumer expectations
iv. alternative to design product costs
b. Warner v. Boston
i. usefulness and desireability of product
▪ utility to user and public
ii. safety aspects of product
▪ likelihood and seriousness of injury
iii. availability of substitute that meets needs and is safe
iv. manufacturer’s ability to elimiinate unsafe character w/o impairing utility
v. user’s ability to avoid danger by exercise of reasonable care
vi. user’s anticipated awareness of danger and avoidability
vii. feasability of manufacturer to spread losses
VIII. Defenses
A. Defense to Intentional Torts
1. Consent
a. person voluntarily relinquishes the right to be free from harmful or offensive contact
or imminent apprehension of such contact.
i. Knowingly, willingly, and voluntarily
b. McQuiggan v. Boy Scouts
i. facts
▪ boy was waiting for meeting to begin and joined boys who were shooting
each other with paper clips. Boy got hit in the eye
ii. rule
▪ D is not liable if P joins willingly, only becomes liable again when P gives
notice they are leaving the game
c. Prosser §18
i. “One who enters into a sport, game or contest may be taken to consent to
physical contacts consistent with the understood rules of the game. It is only
when notice is given that all such conduct will no longer be tolerated that the
defendant is no longer free to assume consent.”
d. Express Consent
i. uses words to consent
 ▪ “i join the games”
e. Implied Consent
i. actions show consent
f. Hogan v. Tozel
i. facts
▪ couple had sex, husband did not tell wife he had STD and gave it to her
ii. rule
▪ consent without knowledge is like no consent at all
g. Richard v. Mangion
i. facts
▪ bully threatens fight, both boys show up and fight each other
ii. rule
▪ P cannot recover if they agreed
▪ consent is nullified by excessive force
2. Defense of Self/3rd person/property
a. In defense of one’s self, of another person, or of one’s land or property, an actor may
use force proportionate to
i. the interest the actor is protecting
ii. the injury or harm threatened by the other
b. interests
i. law values life more than property
ii. land and personal property
▪ right to protect self and property
▪ right to prevent intruders
c. Slayton v. McDonald
i. facts
▪ P showed up at D’s house and wouldnt leave
▪ P threatened D and advanced into the house toward D despite warnings
ii. Rule
▪ generally one cannot use a weapon when the batteror is only armed with fists
or another manner not inherently dangerous to life
▪ dangerous weapons may be justified when fear of danger is genuine and
founded in facts that would likely produce a similar result in a reasonable
persona
d. Young v. Warren
i. facts
▪ P broke in D’s daughter’s (P’s gf) battered daughter
▪ D arrived with shotgun and made P leave
▪ while exiting, D went to prod P and gun went off
ii. rule
▪ actions may not be in excess of the tortfeasor
▪ D is liable for damages beyond necessary or reasonable
▪ necessity for defense must be immediate, not in past or future
e. Proportionality
i. can only use deadly force to prevent serious bodily harm
f. serious bodily harm
i. definition
 ▪ a bodily harm the consequence of which is so grave or serious that it is
regarded as differing in kind, and not merely in degree, from other bodily
harm.
▪ A harm which creates a substantial risk of fatal consequences is a “serious
bodily harm.” . . . The permanent or protracted loss of the function of any
important member or organ is also a “serious bodily harm.”
g. determining reasonability, must know
i. the character and reputation of the attacker,
ii. the belligerence of the attacker,
iii. differences in size and strength of the parties,
iv. whether there was an overt act by the attacker,
v. whether serious bodily harm was threatened, and
vi. whether a peaceful retreat was possible
3. defense of land/personal property
a. Woodard v. Turinpseed
i. facts
▪ D fired P and feared P would destroy property
▪ P was escorted out but returned to the property
▪ D beat P with a broom stick
ii. rule
▪ a reasonable and fairminded person must believe he or his property is in
danger
▪ can respond proportionally and accordingly
b. Katko v. Briney
i. facts
▪ there were several break ins on D’s property he inherited
▪ D set up spring gun
▪ P broke in and was shot
ii. rule
▪ force is justified when committing a felony of violence or trespasser has
endangered human life
▪ serious injury or death is unreasonable for trespassing alone
4. Test
a. necessity of defense
b. “well-rounded” belief of imminence of assault
i. can be based off Slayton
c. excess of force privilege
i. based on reasonableness
B. Defenses to Negligence
1. Contributory Negligence
a. P contributed to their own injury
i. factors
▪ P owed duty to self
▪ P partly negligent, breached duty to self
▪ determination of reasonableness of P’s conduct
 ▪ P’s breach of duty was proximate cause of P’s injury
▪ P had “last clear chance” to avoid injury, not D
▪ burden of proof is on D to prove P’s negligence
ii. completely bars P from recovery
b. Wright v. Norfolk & Western R.R.
i. facts- truck driver injured when train stuck him at crossing
ii. rule- D has to prove P’s contributory negligence
▪ based on either P’s or D’s evidence
2. Comparative Negligence
a. generally similar to contributory negligence factors
b. 3 approaches
i. pure
▪ compares % of D’s neg to P’s neg and adjusts accordingly
° very pro P
● P can recover even if 99% negligent
▪ outcome
° D liable fore their % of negligence, not matter how little
ii. Modified 49% Rule (not as great as)
▪ bars P from recovery is P is as negligent or more negligent than D
▪ outcome
° D liable for their portion of damages if 50%< liable
iii. 50% rule (no greater than)
▪ bars recovery if P is MORE negligent than D
▪ outcome
° same as modified, but can be 50% liable or more
c. McIntyre v. Ballentine (modern comparative treatment)
i. facts- car accident where both P and D were drunk, P BAC was .17%, D was
speeding (both negligent)
ii. rule- damages reduced in proportion to P’s contribution to injury, as long as P’s
negligence was less than D’s negligence
d. Dobson v. Louisian Power & Light Co.
i. facts- P was tree trimmer, P was electrocuted when his metallic rope hit an
uninsulated wire
ii. rule- learned hand test
▪ cost of burden to eliminate risk, and if cost is greater for P or D
e. Jensen v. Intermountain Health Care Inc.
i. joint tortfeasors are liable for contribution w/o regard to their degree of
negligence, unless there is such a disproportion of fault equal distribution would
be inequitable
3. Express Assumption of Risk
a. General Rule
i. P cannot recover since they assumed the risk
▪ unless the agreement/waiver violates public interest
b. Tunkl Factors
i. party seeking exculpation performing important/necessary service
ii. agreement for business suitable for public regulation
iii. service open to the public
 iv. party seeking exculpation has higher bargaining power
v. party w/ superior bargaining power offers public adhesion contract
▪ cant be negotiated
vi. person or property placed under control of seller or is subject to risk of
carelessness by seller or their agents
c. Turnbough
i. facts- P suffered decompression sickness after D negligently planned scuba trip,
P signed waiver
ii. rule- those who wish to absolve themselves of responsibility of negligence
should do so in specific and unmistakable terms
4. Implied Assumption of Risk
a. Primary implied AOR (objective)
i. P knowingly/voluntarily chooses to confront known risk
▪ generally bars recovery
▪ D has no legal duty
ii. Protects D from liability where either risks cannot be eliminate or would be too
costly to eliminate
▪ risks are typically obvious to people who encounter them
iii. Clover v. Snowbird Ski Resort
▪ facts- P collided w/ D(employee), D jumped (knowing he wasnt supposed to
and crashed w/ P
▪ rule- this type of injury was not foreseeable to P, so P did not assume the risk
° employers are vicariously liable for acts of their employees while acting
in scope of employment
● respondeat superior doctrine
b. Secondary implied AOR (subjective)
i. generally not a risk, D created risk, P knew and voluntarily accepted risk
ii. elements
▪ P must have knowledge of facts
▪ known situation is dangerous
▪ appreciate the nature and extent of danger
▪ voluntarily exposes self to danger
° no emergency/no other options or exceptions
iii. Schroyer v. McNeal
▪ facts- P slipped and fell walking through icy parking lot
▪ rule- P was aware of dangerous condition (icy road), yet made a conscious
decision to expose self to the risk (of falling)
5. Mitigation
a. Miller
i. facts- car accident
ii. rule- must show party’s party’s inaction would have mitigated damages
b. Klansek
i. facts- motorcycle accident
ii. rule- person has a duty to use ordinary care to minimize damages after they were
injured
IX. Damages
A. Forms
 1. Compensatory
a. general/non-economic
i. Pain & suffering, loss of consortium, emotional distress, hedonic
▪ hard to quantify
b. special/economic
i. medical expenses, lost wages, property damage
▪ readily calculable, market value, detailed evidence needed
c. statutes
i. survival statute
▪ P’s estate sues on P’s behalf; asserting P’s rights
ii. Wrongful Death Statute
▪ children and spouse sue for loss of financial and emotional support
2. Punitive
a. awarded when D is malicious, evil, wicked, shows flagrant disregard for each other
b. intended to punish and deter D, rather than reward P
B. Compensatory
1. Gunn v. Robertson
a. facts- car accident, wants general damages+past/future medical and wages, wife and
kids sue for loss of consortium
b. rule- when a tortfeasor aggravates a preexisting condition, he must compensate for
the full extent of of his aggravation
i. tortfeasors must pay for all medical expenses, even over-treatment and
unnecessary treatment, as long as not done in bad faith
2. Jordan v. Baptist Hospital
a. facts- P was surviving child, sued for medical malpractice and loss of consortium
b. rule-
i. loss of consortium
▪ tangible services that were provided by deceased to spouse/child
° attention, guidance, care, protection, love, companionship
ii. survival statute
▪ allows victim’s cause of action to survive death, victims estate can recover
damage that victim would have recovered if he hadn’t died
iii. Wrongful death statute
▪ compensates survivors of the victim for losses caused by death
iv. loss of consortium damages
▪ damages assessed based on the closeness of the relationship and dependence
3. Rael v. F&S Co.
a. facts- 12 year old injured by sudden explosion of fireworks
b. rule- two prong approach to pain and suffering damages
i. Objective
▪ the injury is likely to cause pain and suffering to anyone who suffers the
same type of pain and suffering
° pain generally
ii. subjective
▪ pain specific to the plaintiff
° need evidence this was caused by the accident
4. Giant Food Inc. v. Satterfield
a. facts- P slipped and fell in D’s store
 b. rule- jury must be instructed that per diem arguments made by P are not evidence
i. two ways to calculate general damages
▪ reasonable compensation
▪ per diem
5. Loth v. Truck Corp.
a. facts- P was in accident causing severe lower body injury, P was star athlete, job
required to be on feet, social life revolved around her athletic ability
b. rule- hedonic damages are only about specific plaintiff, not how others would fair in
a similar situation
6. Moody v. Blanchard Apts.
a. Facts- P got shocked in appt owned by D, P couldn't work
b. rule- factors to consider in calculating future lost damages
i. P’s physical condition before and after injury
ii. past work record
iii. amount P probably would have earned absent the injury
iv. probability P would have continued to earn wages over the balance of his
working life
7. Kackowski v. Bolubasz
a. facts- P got in car accident, jury instructed to discount lost wages by set inflation rate
b. rule- different approaches
i. traditional
▪ ignores future productivity and future inflation as too speculative
ii. middle ground
▪ permits fact finder to consider productivity and inflation, not expert
testimony
° expert testimony is too speculative and economic principles are common
knowledge enough to let the jury decide
iii. evidentiary standard
▪ allows fact finder to consider productivity and inflation as well as expert
testimony
8. Motel 6
a. Punitive damages are used when D is malicious, evil, wicked, shows flagrant
disregard for the other person.
b. Intended to punish and deter D from doing again