c







?p Goals of tort law:
a p
ake reparations/compensation for injured parties
b p eter wrongdoing
c p orce  to internalize costs (to create an economically efficient level of accidents)
d p unish breach of social norms
e p rovide dispute resolution mechanism
2p ule vs Standard:
a p Standards are more open to interpretation/rules provide clear guidance
b p Standards are flexible, change with the context, applies in degrees/rules are strict, inflexible
c p Standards are broad, harder to enforce/rules are easier to enforce, more predictable, but narrower
3p aw and Economics:
a p Goal is to break torts loose from moral concerns Use law as a tool for promoting economical
efficiency Goal is to achieve economically efficient level of accidents Tradeoff between safety
and other values
Assumptions: human beings are rational actors making rational choices to maximize their welfare
Externalities= costs not reflected in a market price of a good Usually person causing externalities
must internalize it
b p oase theorem: if transaction costs are negligible, then it doesn¶t matter who is liable because
economically efficient result will occur anyways elated to lowest cost avoider approach
c p Efficiency= increase net value of resources
4p Elements of Negligence-need all to establish negligence:
a p uty
b p reach
c p ause in fact
d p roximate cause
e p amages
5p Stanley v owell ± without negligence or intent to do harm ( A),  cannot recover for damages, even
though he was injured by ¶s shot because it was not intentional or resulting from neg No liability in tort
without fault
a p Exception-Strict liability in two types of cases: ?) ultra hazardous activities 2) defective products
6p owler v anning ± same rule as Stanley, but adds that the   for NEG lies with the , not the 
(issue here was  )
7p nce  A is established, Ô
  

 


 p  c  - ¨ can either file
a p
otion to ismiss (demurrer) ± says, even if these facts are true, not cause of action, everyone files
one, earliest stage where can test legal sufficiency of allegations even if they are true, look at facts
in light most favorable to 
b p
otion for SJ- ¨ challenges  to show evidence and says no evidence to sustain cause, court looks
at all evidence in light most favorable to non-moving party and if impossible to find for him,
dismiss case ifference from demurrer is discovery occurred
c p
otion for directed verdict- After trial starts, opening arguments,  has witnesses, at close of 
s
case in chief,  moves for directed verdict Judge does not want to do this b/c he would rather have
jury do the dirty work
d p JN  ±made after jury¶s decision if judge thinks not enough evidence to convict, appellate court
can just reverse this, where as if had given directed verdict, trial would start all over again

c
  

?p attery: Intentional infliction of a harmful or offensive contact with the person or plaintiff
a p Elements of attery
i p  must act (volitional muscular movement)
ii p Act must be intentional
 iii p Act must cause a contact with the victim and the intended contact must be either harmful or
offensive to the victim
b p Intent equirement: Subjective standard (in the mind of the )
i p No contact is intentional if it is not the result of a voluntary act
ii p
ust act for the purpose of inflicting a harmful or offensive contact, D realize that a contact
is substantially certain to result attery does not require intent to harm, just unconsented and
offensive touching
iii p An actor can possess tortious intent even though they bear no ill will to the victim
whatsoever
iv p  is not required to prove intent to cause specific injuries resulting from the contact
c p ffensive ontact: ffends a reasonable sense of personal dignity
i p If  knows that a  will find something offensive, and does it anyways, even if it¶s a tap on
the shoulder, then  is liable for battery N requirement to prove damages
ii p
inority view- must realize that contact is offensive
iii p Something can be offensive to a reasonable person precisely b/c it was unconsented (to
protect autonomy) except in emergency situations
iv p  need not actually touch  at all, or even be present at time of contact to commit battery
v p  is liable for A of the consequences of the battery
? p ationale: because intentional torts are deliberate actions to invade another
s rights, it
seems appropriate to impose all resulting damages on the actor rather than the innocent
victim
d p  says that battery and neg are mutually exclusive,
 says they are not (Ghassemiah)

2 p Assault: an act intended and succeeded in putting another person in reasonable apprehension of an
immediate battery
a p Elements:
i p Act with intent
ii p lace victim in reasonable apprehension of harmful or offensive contact or to make such
contact
iii p Unconsented to by the victim
b p Intent equirement (same as battery):
i p
ust act with purpose to cause apprehension of a contact or substantial certainty that it will
result
ii p ne who attempts to batter the  but misses is liable for assault if the  is placed in
apprehension of a blow
c p Apprehension of harmful or offensive contact (same as battery):
i p  must prove that they actually feared the type of contact that would support a battery claim if
it actually occurred
ii p Apprehension means perception or anticipation of a blow, rather than fright
ust also be
imminent-does not mean immediate
eans "it is enough that one is so close to striking
distance that he can reach the other almost at once, or he can make the weapon ready for
discharge in a very short time" -estatement  doesn¶t have to know if its imminent
iii p ear of future conduct is not assault
iv p oes not matter whether or not the actor is in fact able to make the threatened contact
v p
ere words alone cannot constitute assault unless combined with other acts or circumstances
that make victim apprehensible
vi p onditional Threat:
? p Not assault if the words negate the intent to cause harm "if you werent so old I
d«" but
otherwise, its considered assault

3 p Universal elements of Intentional Torts:

a p onsent:
 ip actual question for the jury an be either express or implied
? p ustomary uses can imply consent
2 p ircumstances of the situation can imply consent, something can be offensive to a
reasonable person precisely because it was unconsented Emergency situation implies
consent
b p Transferred Intent:
i p etween eople- An actor intends to commit battery on one person and actually inflicts one
on someone else
ii p etween Actions- Allows recovery where the actor attempts any of the intentional torts but
causes another (i e if actor intends to commit assault by scaring someone but actually harms
them, then actor will be liable for battery instead)
iii p If original intent by  to A is not offensive or wrongful, but then hits  who is not consenting
and would find it offensive, intent does N T transfer (may be liable for neg)
c p hild Standard for Intentional torts:
i p Standard for battery is same as for adults, so long as they have the capacity to form intent
They do not have to understand what they are doing, they just have to intend this Usually
children below 5 do not have the capacity to form intent

c

 p



  Judge imposed-juries do not decide whether or not a  owed a duty to  
a p Generally- If someone engages in an affirmative act that creates a foreseeable and unreasonable risk
of physical injury or property damage to another, then duty is owed (Heaven v ender)
b p actors in deciding when to impose duties:
i p oreseeability and extent of the likely harm from the 
s conduct
ii p If the  is uniquely positioned to prevent harm
iii p urden that new duty will impose of 
iv p Alternative ways of protecting the 
s interest
v p Increased safety likely to result
vi p hilling effect on 
s conduct
vii p olicies established by the legislature (e g imposing duty on police to arrest drunk drivers)
viii p Admin problems for courts in enforcement
c p Hand
s ormula for duty (US v arroll Towing):  doesn¶t work as well for momentary
inadvertence like one small mistake that you do that is not planned Also if you cant quantify some
factors
i p =probability of injury, =burden of adequate precautions, = gravity of resulting injury
ii p If , there is a duty
iii p If  , there may not be a duty
d p elationship between the arties: roximity
i p uty to take care when the person is in such proximity to another that damage might be done
to him without reasonable care
i p Not limited to physical nearness
? p Snail in ginger beer ± proximity of use - onoghue v Stevenson
e p oreseeability of 
i p Injured party must have been foreseeable, probable, wrong must have been to that person, not
3rd party - ardozo in alsgraf v ong Island 
ii p Œndrews: duty owed is to the public at large ± to all who were there as well as all who might
have been
f p hildren
i p Traditional rule-no duty to trespassers -exception: allas v Granite Steel - expense and
inconvenience of remedying the condition is slight compared to the risk to the kids There was
an attractive nuisance in this case, otherwise there would be no duty to trespassers
g p ontrolling the Actions of thers:
 ip In general, there is no duty to protect another from a criminal act by a third party, or to control
the conduct of others unless a special relationship exists ± oberson v Allied oundry
ii p If  has control over doer (custodial relationship-can extend this by analogy for public policy
reasons),
? p oreseeability of harm done by the evildoer is sufficient to establish a duty owed by 
(even though  does not have control over both doers and victim) Home ffice v
orset Yacht
h p Seller of Goods
i p Seller must anticipate the environment that is normal for the use of his product and the
reasonably foreseeable risks involved therein -duty to design a crashworthy car
ickle v
lackmon
i p ublic policy aspect of duty:
i p alance of public expense against probability of greater safety to individuals
 p âhen an activity is inherently dangerous, other people do not generally owe a duty to make
sure you are safe uts liability off short of foreseeability of for public policy reasons- lson
v illage of ak awn

3 p No liability for failure to act

a p ationale: uty to act would infringe upon individual liberty, hard to define the duty to be
imposed, which bystanders would have to step in, you might endanger yourself
b p Exceptions:
i p uty based on special relationship to the victim
? p Examples: train conductor/passenger, factory owner/employee, school officials/sick
child, guard/prison inmate
2 p  is not the source of injury but they must take affirmative steps to minimize or avert
the harm
3 p If it is an ee/er relationship, the er is uniquely situated to mitigate the harm and the ee is
there for the benefit of the er
4 p uty is imposed if the  has knowledge of their need for protection or the  is deprived
of the ability to act for his own protection (prisoner)
5 p uty based on special relationship to the perpetrator
a p uty to control one person to prevent him from injuring others Usually this is a
duty to exercise reasonable care to prevent injury from the dangerous person
b p Examples: parent/child, er/ee,
c p uty is imposed on one who takes charge of other with dangerous propensities
(mental patients, prisoners)
i p Tarasoff- psychiatrists relationship to dangerous patient gave rise to a duty to
warn the patient
s intended victim that the patient had threatened to kill her
Some courts refuse to extend this duty beyond situations involving a threat to
a 


victim
ii p In a similar case, a doctor has not duty to warn victims of 
s STs, but the
doctor may have a duty to inform the  that he could spread and harm other
people with it
6 p uty based on innocent creation of the risk
a p The  without negligence, realizes or should realize that they created the risk that
causes injury to the 
b p An actor who has injured another, even without negligence, has an affirmative
duty to render assistance to prevent further harm to the injured party
c p ationale: risk creation- by 
s risk-creating conduct for his own purposes injured
another "requiring a person to minimize the consequences of risks which society
gives him a privilege to create"
c p escuers-Gratuitous Services Exception- N duty to rescue, usually
 ip Exceptions:
? p You created the risk
2 p You furthered the harm (enhanced the risk)
3 p Special relationship
4 p Undertake rescue and proceed negligently
5 p revent others from rescuing
ii p Special relationship: captain of boats If you put someone in a situation that invites rescue,
you also have a duty to that rescuer, who is foreseeable (Horsley)
iii p The , under no initial duty to do so, goes to the aid of another The  is subject to liability
for any bodily harm caused by the failure to exercise
  

(act as an ordinary
prudent person) to secure the safety of the other, or by the discontinuing of his aid, if by doing
so leaves the other in a worse position Good Samaritan can leave an injured person at any
point in the rescue as long as they are not in a worse position
iv p ationale-the actor, while virtuous, is a risk creator in rendering assistance

4 p isk reation as a Source of uty

a p Those who do act, who choose to engage is activities that create a risk of injury to others, do
have a duty to exercise care to avoid injuring others
b p Heaven v ender-N exception to this rule-should be liable for all injuries foreseeably
caused by their negligence ther courts has limited duty based on policy considerations

5 p uty v roximate ause (alsgraf)

a p onfusing and not yet consistently distinct in all case but should be:
b p Use proximate cause analysis for refusing to impose liability for unforeseeable consequences
c p Use duty analysis to impose policy limits on liability for harm that is foreseeable
d p roximate ause: usually resolved by answering whether the injury that befell the plaintiff
was one of the foreseeable risks which made the defendant
s conduct negligent in the first
place

6 p 


 

a p ommon aw:
i p No duty to avoid negligent infliction of emotional distress on bystanders
ii p ecovery allowed if emotional distress (pain & suffering, e g ) resulting from a bodily injury
in a negligence case (known as ³parasitic damages´)-Impact rule (below)
iii p ecovery allowed as part of the recovery for the intentional torts, since the intentional torts
vindicate dignitary injuries
b p olicy Arguments & ounterarguments in ystander iability ases
i p
edical science can¶t prove fright caused harm
ii p raudulent claims
iii p loodgates-everyone could have a claim-clog the courts
iv p Unlimited, unduly burdensome liability
v p ircumscribing liability
ap Exceptions:
c p Impact ule
i p equires that the  prove that he suffered a physical impact upon his person, and can recover
for damages The impact must lead to the emotional injury
ii p If the emotional distress led to a physical illness, recovery was barred if there was no physical
impact upon which to piggyback the distress damages
iii p Some jurisdictions greatly expand this rule by using any type of physical impact to allow
recovery
iv p Some jurisdictions limit this rule by requiring a physical manifestation of their emotional
distress
 vp ationale: alleviated fears of fraudulent claims, filtered out frivolous claims while allowing
more serious ones to proceed
d p one of anger
i p  must be close enough to the 
s negligent conduct to be placed at risk of physical injury,
even though  was not actually touched Usually,  does not have to be aware that he was at
risk
ii p ationale- owes these bystanders a duty of care because they are within the area of risk
created, thus injury is foreseeable (stems from alsgraf-ardozo
s argument)
iii p riticized because arbitrarily drawn line of who gets to recover, father can watch his child get
hit by a car from a window but because mother was closer, she gets to recover Hopelessly
artificial
iv p hysical manifestation of emotional distress is often added on top of the   requirement
e p The illon ule
i p
ore flexible approach than   illon rule includes indirect victims if:
? p The  was located near the scene of the accident
2 p The  actually witnessed the accident
3 p  and victim were closely related-almost always has to be a relative
ii p hysical manifestation of emotional distress is often added on top of this
iii p illon court did not say that all three factors must be present, they are just relevant factors
Thing v ahusa, a case in A converts this to say that A must be present Some states
view the factors as guidelines, other view them as requirements because floodgates would
open up otherwise
iv p If a person if mistaken that their relative is being injured when it is really someone else, courts
have held they will not recover for emotional distress
f p irect Injury: Impact ule,   ystander:  , illon ule A jurisdiction can have a
combination of these rules like Impact rule for direct injury and   rule for bystander

7 p D

 D


 -limited duties
a p The status of the person on your property can change at any time and status is a question of 

 
 
 

c   !
  

   

"  easonable care, including rdinary (easonable) care Invitation to be on land
  obligation to make with some kind of
inspection and discover any economic connection ±
reasonably apparent flaws mutual economic interest
or public guest

  None, except to warn of uty to warn of danger Some basis to be on land;
latent dangers or traps and owner knows about and social guest, permission
not willfully injure unlikely to be discovered by (revocable) and no
guest (latent dangers or economic interest
traps)

 
 None None Except: don¶t No right, no license, no
willfully and wantonly invitation; without
injure, attractive nuisance, permission or entitlement
habitual/known trespassers

b p Invitees- a person who enters by the express or implied invitation of the land occupier for some
purpose related to the activities or interests of the land occupier
 ip usiness invitee-it is immaterial if business dealings fail to materialize
? p ationale-proprietor is benefitting-quid pro quo, duty of  is price you pay to have
people come and buy things
ii p ublic invitee-enters upon land held open to the public
? p ationale-Implied representation of safety that you should be able to rely on eople
should be able to assume that public areas are safe
iii p If an invitee wanders throughout the premises-their status may change (ex-they enter an
"employees only" part
c p icensee- person has express or implied permission (very broad) by the occupier They enter for
their own purpose, conferring no particular benefit on the owner (firefighter, social guest,
relatives)
i p osting signs are sufficient to warn of latent dangers unless owner knows signs to be
ineffective
ii p No duty to inspect, only duty to warn of latent dangers that they are

, and duty not to
make traps
iii p ack of knowledge that a particular licensee was on premises is no defense, must conduct
activities as though a licensee may be on the premises
d p Trespassers:
i p rdinary trespassers: anyone without the express or implied permission of owner, and is
unauthorized to be there
? p No duty of reasonable care, no duty to discover presence of trespassers, but a duty to not
intentionally or wantonly cause injury
2 p If the owner knows or should know that a trespasser is on the land, then there is a duty
(same as licensee)
ii p hild trespassers: must be so immature as to be unable to recognize the harm involved
Usually, below age ?4 counts as a child (this is a question of fact-the younger the child, the
more likely a condition will be an attractive nuisance)
? p Attractive nuisance- imposes a special duty of care on an owner that involve a risk of
harm to children unable to recognize the danger involved
a p ationale-society has a greater interest in the safety of children than in an
occupier
s right to do what they please with their land
e p andlord-Tenant uty
i p -andlord has not duty to the tenant or 3rd parties for injury
ii p Now-Exceptions to N duty,  liable for:
? p efects in premises leased for admission of the public
2 p reach of a covenant to repair
3 p Negligent repairs
4 p efects in common areas under 
s control
5 p efects in violation of a housing code
iii p Jurisdictions vary on this-In âY (
errill v Jansma):
? p No duty to landlords EXET:
ap Hidden or latent dangerous conditions known to the landlord and unknown to the tenant
cause an injury
ap remises are leased for public use and a member of the public is injured
ap andlord negligently makes repairs (
errill case)

p Activities on the property vs onditions on the property:

p If injured because owner of property is doing something that injures you on property-then
just regular negligence rules apply (anytime you engage in an affirmative act which you can
reasonably foresee injury to another, a duty is owed)
p olicy ationales for not using categories:
 p Increasing awareness for human safety, want people to manage their property for the
safety of people
p roperty owners should be liable for the safety of others regardless of what their status is
p onditions have changed and categories do not reflect modern society (human safety vs
absolute property rights)
p There is not that much of a burden to extend duty to social guests because they should
want to fix it anyways
p ategories are confusing and court mislabel them, they should just apply general
principles of negligence
p olicy ationale for keeping categories:
p roperty owners should be able to use/enjoy property without fear of liability
p pens the floodgates, people might be afraid to have guests at their house
p eople do not want to be liable to trespassers
p redictability for the courts-judicial efficiency
p This kind of decision should be made by the legislature-institutional competence
p Arguments in favor of status quo-the categories are so ingrained in history
pâ
 #
p Early -N recovery for wrongfully causing the death of another due to felony-merger rule
which meant that everything would go to the state anyways and there is nothing left to recover
This seemed wrong because it was cheaper to injure than to kill c   were designed to fix it
(ord ampbell
s Acts)
c
 !
 â
 #
âho sues? ersonal ep  or survivor (spouse) Executor of
estate
n behalf of Estate-distributed by will or intestacy Survivors (spouse, child, parent, maybe
whom? sibling)
or what? amages suffered b/t time of injury and alue of lost support, mental anguish of
time of death No punitive damages 
se  related survivors Usually
pecuniary damages only

p ârongful death: claim for damages for tortiously causing the death of another
p A personal rep sues on behalf of the family members for the harms that they have
suffered by the death of the deceased (usually what the deceased would have contributed to
the family members had s/he lived) - tended to be only pecuniary harm; now may
sometimes recover funeral expenses and loss of society/companionship
p Survival: an action brought by the representative of the estate of a decedent for injuries suffered
before the death
p Allows the estate of a decedent to enforce a tort claim for damages suffered  
the
death The thing that survives is the  A, only can recover if  could recover if they were
alive amages could include whatever the decedent could have recovered if he lived; for ex ,
if they had a negligence claim, the personal rep could recover medical expenses, loss of
earnings/earning capacity, etc from time of injury to time of death
p No survival action if death is instantaneous
p  can also sue 
s estate if  dies
p or both actions:
p ossible to have a survival action without a wrongful death claim  sues for injuries and
then dies from an unrelated event ut they do not ever overlap each other
p If someone is injured and then sues and recovers, then wrongfully dies from them, they
cannot recover anything else
 p ourts treat wrongful death actions as statutorily created and do not use much judicial
creativity to add or subtract anything from the statute

c
$"

#
preach: ailing to act as a reasonable person under the circumstances ecided by a JUY, question of
fact(unless no reasonable jury could decide, then judge decides and becomes question of law and fact)
peasonable erson efined:
p The reasonable person is: a model of propriety and common sense, a person of sound judgment
who acts with ordinary prudence A fiction who always exercises proper self-restraint and weighs
not only his own interests, but those of others as well in his affairs
pHow the easonable erson Thinks:
p onsiders the foreseeable risks of injury that the conduct will impose on the community in light
of the  of the conduct
p onsiders the extent of the risks posed by their conduct
p onsiders the likelihood of a risk actually causing harm
p onsiders whether the alternatives to her proposed conduct would achieve the same purpose with
lesser risk
p onsiders the costs of various courses of action-the injuries avoided outweigh the cost of the
extra precaution
p:
p How the reasonable person balances these factors in reaching a judgment
p riticisms:
p Hard to value a loss, very speculative
p Assigning probabilities to a particular types of risk is highly speculative
p ails to consider other possibilities, such as adopting an entirely different method of
achieving a given result
pUnder the "ircumstances"-
odified Standard of are
p acks judgment: No reduction in the standard for dumb people No allowance made for the
circumstance that a person lacks good judgment (aughn v
enlove)
entally ill also held to the
same standard, despite illness
p ationale-this test allows impartial application, avoids subject judgments about
individual character, and allows some measure of prediction about the consequences of
conduct
entally ill must exercise restraint in activity to avoid liability
p imited exception to liability of mentally ill (âis ):
p âhen a mentally ill person injures an employed caretaker, the injured party can
reasonably foresee the danger and is not "innocent" of the risks involved A person who is
institutionalized and who does not have the capacity to control their conduct cannot be liable
for injuries caused to employed caretakers
p Sudden onsets of mental illnesses that are not foreseeable are also exceptions
p hildren: not held to the adult standard of care, rather a reasonable child of like age, intelligence,
and experience under like circumstances (both objective and subjective standard)
p ationale- children have to learn to be careful and ought not to be exposed to tort liability
for conduct that is reasonable in light of their stage of development during the learning
process hildren need to have maturing experiences
p
inority ules:
? p Illinois ule- rule of 7
s elow 7, can
t sue for negligence, irrebuttably rom 7 to ?4
there is a rebuttable presumption that child is incapable of negligence
2 p Substantial minority: below a certain age, they presume that children are incapable of
negligence (Tender years)
3 p ationale:
inority rules are easier to apply, but not as fair if a child is 6 years old and
364 days In the majority, there is discretion but not as predictable
iii p Adult activities exception (applied to all jurisdictions):
 ? p âhat is an adult activity?
a p Same kind of risks that adults generally impose, engaged in the activity as a
normal adult would be
b p ustom- children normally do not engage in this activity
c p
agnitude of risk
d p âhether or not law imposes age restrictions on the activity
2 p ationale: thers cannot take measures for protection because they don¶t know that a
child would be driving (e g )
d p Expert in a field: Not necessarily a higher standard of care but the fact that an actor is a
professional or assumes the role of an expert is a circumstance that colors the meaning of
reasonableness
e p Emergency: ule is emergency is one of the circumstances you can take into account in deciding if
someone behaved as a U If  was confronted with a sudden emergency that was # 
& was forced to act with little time for reflection,  will not be held to the same standard of care as
one who has ample time for thinking about what to do There is some variation on whether you
specifically instruct the jury on sudden emergency instructions

6 p 

 %

a p Slip & all ases:
i p  must have actual or constructive notice of hazard¶s presence or the hazard must have
existed for so long that the  ought to have known about it in order to be liable if he fails to
exercise reasonable care in preventing injuries
ii p If the owner created the hazard, then notice is not needed but notice is needed if a third party
created the condition
? p ro- jurisdiction-requires  to prove actual or constructive notice
2 p ro- jurisdiction- rebuttable presumption of negligence arises and burden shifts to 

r p    or change in ownership does not afford immunity

a p âhere the manufacturer¶s NEG in design causes an unreasonable risk to be imposed upon the user
of its products, the manufacturer should be liable for the injury caused by its failure to exercise
reasonable care in the design

8 p  
 


a p
anufacturer can be held liable for failure of product even if it had been used safely and effectively
for a prolonged period of time
i p  must prove that the product was originally defective at time of building
b p uty to provide a crashworthy car -
ickle v lackmon

9 p † #  
&
a p egree of care required varies w/ risk involved
i p ecognized heightened standard due to risk or public interest
? p ommon carriers in getting people on and off
a p elivery of electricity
b p elivery of gas (propane)
c p elivery of gasoline

? p  '
- helps  prove reach
a p equirements:
i p Injury must be caused in such a way that it is more likely than not that negligence is to blame
oes not ordinarily occur unless negligence was present  must show that neg was likely that
of a 


defendant
? p
ost likely scenario is that  breached due to circumstantial evidence
 ii p aused by an agency that had exclusive control-not always taken so literally
? p
ay be applied under the theory that the  had control at the time of the NEG act, but
not at time of accident, provided  proves that the condition of the instrumentality had
not been changed after it left the ¶s possession
a p  has to prove that from the time the bottle left ¶s control until the bottle
exploded, nothing happened to it Escola v oca ola ottling o
iii p  needs to show that it was not his own fault (kind of built in to #2)
b p ossible procedural effects: Jurisdictions use #? mostly
i p ermissible inference of negligence; -most used procedure
eans  brings forth pre-reqs of
I and jury can do what it wants-decide its breach or not
ii p ebuttable presumption of negligence; -A uses this procedure reach unless presumption
rebutted urden of production-shifts to , urden of proof still on  nce  makes out pre-
reqs for I-creates inference of neg, jury will find breach unless the  rebuts the
presumption  still has burden of proof once  brings forth some evidence nly shifts
burden of production If  cannot bring forth anything, then he loses on issue of breach
iii p Shifts burden of proof on negligence issue -rare for it to shift the entire burden of proof
iv p If the  has actual evidence of the breach, then it is not a I case

?? p"

#c 
a p Elements required to apply the statute:
i p
ust be relevant to the situation
ii p
ust be intended to protect the class of persons to which the  belongs
iii p
ust prevent the type of harm that actually occurred
iv p
ust have caused the harm due to violation of the statute
b p uestions to ask when dealing with statutes:
i p âhat kind of statute is it? Is it a safety statute? If not, it may not be relevant at all
ii p âho passed the statute? eds? Statute?
unicipality?
iii p âhat procedural effect should be given to violation?
? p
ost jurisdictions say that it is negligence per se (an irrebuttable presumption) with
excuse
2 p ther jurisdictions: rebuttable presumption; or some evidence; might treat different
kinds of enactments differently
3 p urden never shifts to   can always offer evidence of an excuse,  must still estab 
was not being a U
iv p âhat are the possible excuses the  can make once negligence per se is established?
? p Safer to violate statute than conform to it (ex- walking on the wrong side of the road
because more light on that side)
2 p Incapacity (an actor is minor and unable to comply)
3 p Inability to comply (tail light might go out suddenly)
4 p Emergency (speeding on way to hospital)
c p Arguments for negligence per se rule:
i p easonable people do not violate statutes or ignore the standard of care established by the
legislature
ii p ourts should give deference as a matter of institutional comity to legislative judgment about
how reasonable people behave
iii p Since the legislature thought about it, they wanted to set a standard of safety for the protection
of citizens, as reflected by the imposition of criminal penalties
d p Arguments against negligence per se rule:
i p
ost statutes say nothing about recovering damages in 
 actions so court has discretion in
borrowing the standard
ii p oubtful that legislature intended blind adherence to standards, regardless of circumstances
?2 p
a p ustom is not synonymous with  but it is sometimes relevant and has a bearing on  analysis
The fact that conduct is generally engaged in by those in a particular trade or profession at least
suggests that such conduct is acceptable Some customs are known to be unreasonable and still
followed anyways
b p ifficulties with ustom
i p Hard to prove an industry-wide custom
ii p Hard to distinguish between custom and habit
iii p âhat do you do with evidence of a custom?
iv p
aking sure that the custom is relevant to the facts
c p A jury
 use evidence of noncompliance with a custom/industry standard to find negligence, but
it 


do so epends on judge
s instructions
i p
ajority ule-is not a the same as a neg per se effect, use it as non-conclusive evidence
tending to show that  breached
d p âhy don¶t we give custom the same effect as breaching a statute?
ip An industry standard is not the same as a statute-legislature takes a lot of time thinking about
making statutes Industry customs are made from businesses who may not consider safety to
be their first priority
?3 p{ 



a p Informed onsent:
i p easonable dr standard: uty to inform does not require the doctor to risk frightening the
patient out of a certain course of treatment which sound medical judgment dictates that patient
should undertake ro-
ii p easonable patient standard: what an objectively reasonable patient needs to hear from his
doctor to allow the patient to make an informed and intelligent decision about treatment ro-

iii p Elements of malpractice for not providing informed consent:
? p ailure to inform patient of all material risks AN
2 p A reasonably prudent patient would have declined the treatment had they known about
the risks
b p rofessional Standard of are:
i p If you are a professional with a license then you are held to a higher standard of that
profession under the same or similar circumstances
c p ocality ule- a professional has standard of reasonable care required of a professional of that
locality under the same or similar circumstances (and locality) A dr in a remote area would not be
expected to have the same standard of care as a doctor in a big city
i p This rule is mostly gone now because modern technology and communication-doctor should
be able to keep up on new advances in medicine

?4 p


 † (
!
 
a p ommon carriers & those dealing with hazardous activities are held to # ##  



#  
# 


)##

 
i p Standard applies only when doing something that involves the ultra-hazardous activity
ii p Hypo: Gas o¶s truck is driving & crashes âhat is the standard of care?
? p ? is crushed by the truck ± rdinary care
2 p 2 is injured by leaking gas ± Highest care
b p easons why they are held to a higher standard (criteria for applying enhanced standard):
i p Inherently dangerous properties
ii p The company possesses expertise in dealing with it-not a reciprocal risk
iii p General public is not able to recognize and guard against the dangerous potential of certain
situations
?5 pc 
{

a p In some circumstances, a statute can modify the standard of care necessary for breach or ex , a
guest statute lowers the standard of care for drivers (Spence v aught)
b p ram shop liability: general rule is usually no duty for serving alcoholic beverages except if the
person is visibly drunk or if you are serving to minors In -if you serve to an alcoholic or to
minors-could be liable  raises the standard of care somewhat