Basis of Liability

Negligence Fault: Ways to prove Breech of the Duty of reasonable care

1. D fails to act like an objectively reasonably prudent person under the circumstances -----------BECAUSE... i Vaughn v. Menlove (Barn fire/stupidity defense)
a. Balance Advantages & disadvantages of D’S conduct from view of the Objectivelyii reasonable person in D’s
position. (not perfect person, but always perfectly reasonable; like a yard stick)
i. Semi-Objective Child standard (unless child engaged in adult activity)-------------------------------  Roberts v. Ring(Oldguy hits child/child vs. old guy
P.v.CN.v.D subj. stand.)
1. < 5= CANT be negligent  Daniels v. Evans (minor Motorcycle/adult activity
2. >5 Reasonable child in same age group------------------------------------------------ standard)xvi
ii. Semi- Objective Physically Infirm Adults Standard (NOT mentally Infirm)--------------------  Breunig v. Amer. Fam. Insur. (Batman/Nature of insani
test)xvii vs. Fletcher v. City of Aberdeen (Blind guy
1. P=subj/unless adultact; CN=subj; D=subj/fairness clause construction ditch/Physical infirmities)
iii. Semi Objective Special Professional Standard in practice (Doctors, Lawyers ect… Malpractice)
1. Malpractice failure conform to Medical Custom dispositive (Expert Testimony)
2. No Informed Consent Not have consented had known risk test (No req. expert…
Jury decides IF dr. failed to inform)
b. Was the risk of harm in generaliii & to P Foreseeable to D? ( of probability vs. improbability)-----------------
Blyth v. Birmingham (frozen pipes/rare occurance)
 “The risk reasonably to be perceived defines the duty to be obeyed.”~ Cardozo -Risk of this frost improb. as matter of law
i. If ordinary reasonable person would have anticipated harm as a seriously probable consequence of -Today, most risks not improb. like that and would g2 ju
actions under the circumstances -------------------(probable/improbable/value)---------------------- Eckert v. Long Island (Kid on tracks/probability of harm
Terry Negligence(negligent when expec loss>expec gain
1. *because a person cannot be negligent for failing to take precautions against an -Mag. Of risk(x)value of exposed object=expected loss
unforeseeable risk of harm -val. Of principle obj(x)prob suces w/risk-prob sucesw/o
ii. Foreseeable Plaintiff Rule: Whether reasonable person would have anticipated that someone in
P’s position would be at risk ----------------------------------------------------------------------------------- Cooley v. Public Service Co (Phone bang/stress syndrom
 “no hazard was apparent to the eye of ordinary vigilance”~ Cardozo
2. Hand Formula (Reasonable risky action = B>PL; Unreasonable risky action = B<PL)
a. Probability and Magnitude of harm (P&L) Measure Cost of taking risky action------------------------------------- United States v. Carroll Towing (Barge sinks)
b. Interest sacrificed to reduce risk of harm (B) Measures cost of reducing risk of harm------------------------------ -Marginal Precuations/sometimes lesser>social benefits
c. Untaken Precaution Argument (Nail in coffin) Not necessary, but good if… Halek(Elevator oper/low cost of harm reduc negligent ri
i. There was a particular caution that D should have taken that, if he had,
--------------------------------would probably have prevented plaintiffs harm. U.S. F&G Co. v. Plovidba (Longshoreman hatch/B>PL)
ii. Precaution available, inexpensive, and potentially effective ----------------------------------------------
Haft(P’s frame of causation imp. for l8er ability to prove
1. P argues D could have easily taken said precaution (expert test?) -inexpensive easy to prove precation mite be to little to h
2. D argues that he either couldn’t have, or it wouldn’t have done anything to prevent more probably then not prevented the harm form occuring
harm even if he did (later causation argument) -expensive untaken precaution easier to establish causati
3. Compliance with Custom (Non Compliance=sword/Compliance=shield) basically The untaken precaution argument
a. Determine if practice is widespread enough to qualify (done by most)-----------------------------------------------
b. Ordinary negligence cases (Evidence/not dispositive) Helling v. Carey(No glacoma test cuz not medical custom
i. If Yes, evidence of compliance or non compliance to Jury
1. Compliance(D guilty=whole industry neg/notguilty cust ok)--------------------------------
2. Non Compliance (guilty=custom good/not guilty=valid excuse)---------------------------- Mayhew v.SullivanMining(Hole platform/unreas ind. cu
Nati.Training Sch. v. Perotti(fail observn highr internal
ii. If No, D who tried to prove his conformity to it in an untaken precaution in trouble------------------- stand./reliance vs. discourage higher then norm precautions
c. Professional Malpracticeiv cases (Dispositive & req. expert testimony)Reasonble Physicians define standard----- The TJ Hooper (Tug boat radio/whole industry liable)
i. If Custom, compliance/noncompliance dispositive---------------------------------------------------------- Titus v. Bradford(Jery rig rail cars/indust. custom= dispo
Lama v. Borras (Back surg. & no bed rest/national custo
ii. If not custom, try Qualitative v. Quantitative (respectable minority) testsv----------------------------- Belinkoff(specialist held to standard of avg. specialist)
d. Informed Consent Cases (Injury+Reasonable Patient+Causal connection)Reasonable patients define stand.----- -Also taking note of advances in profession
i. Reasble patient: disclose what a reasonable patient in what physician knows to be patients Canterbury v.Spence(backsurg/reasonable patient standa
-not informing of 1% paralysis risk= negligence
situation, would want to know (expert test to show what information should have been disclosed)- A lot of places have codified I.C. rules in statutes
ii. Causation: Must show he would have declined treatment that lead to injury IF the requisite Bly v. Rhoads (Experts? Hooper standard/not dispositive
information had been disclosedvi. (objective and semi objective standard)vii------------------------- -req. exp. To testify that certain info is needed by patient
Cobbs(obj. causaion stand./protect dr. from 20/20 hindsi
4. Violation of statute = negligent (even if slightly defective) BECAUSE…(talk POLICYviii & proxcause ON EXAM)----- Arena(subj. causation stand/body autonomy argumemnt)
a. Purpose of statute is (1) protect this type of plaintiff (2) from this type of risk/harm (Railroad fence/cow------ Burnett(marble truck/not P statute intended to protect)
case) Establishes Duty & Breech… & defines intent of legislature------------------------------------------------- Kernan(kerosine lamp height/viol neg. cuz harmw/inrisk
Osborne(poison label statute violation/defines duty owed
i. negligent per se (dispositive/irrebuttable presumption)------------------------------------------------- Goriss(Sheep/aggregating v. disaggregate risks?)
ii. Rebuttable presumption (shift burden to D if established)------------------------------------------------- Running red light & hitting pedestrian
iii. simply evidence or inference of negligence (argue unreasonableness of actions) ix------------------- Ross(key in truck/evidence of neg. for violating statute)
Brown(chiropractor liscence case/violation of stat irrelev
1. Exceptionsx where compliance with statute be greater risk of harm then violating it-- -Stimpson(truck crushed pipes/purpose of licensing statu
5. Res Ipsa Loquitur (the smoking gun/Circumstantial evidence) = negligence BECAUSE…. ---------------------------------- Tedla(hit walking back to traffic violation of stat/Necess
i. (1) accident is the kind that does not usually happen without negligence-------------------------------- Byrne v. Boadle(Barrel of flour/otherwise no case)
Ybarra(Conspiracy of silence/smoke out method)
ii. (2) the plaintiff was not the one who caused it, and -------------------------------------------------------- Pfaffenbach(truck cross center line/rebuttable presumpti
iii. (3) defendant was in exclusive control of injury causing instrumentalityxi--------------------------- Wakelin v. London (Train hit/NO RI poss. P was neglige
b. Irrebuttable Presumption/Directed Verdictxii (overwhelming circumstantial evdence+weak D response)rare-- Colmenares(Escalator handrail/cant pass off duty of
exclusive control to third party)/Hotel(chair thrown by gue
c. Rebuttable Presumption (smoke outxiii when 1 or more D’s could have evidence of cause/1/2 loaf SL)---------- Newing v. Cheatham (Drunk pilot/NO possibl P control)
d. Inference in most jurisdictions (but shifts burden and gives to Jury)--------------------------------------------------- Ybarra(Jury must find Joint&several liability w/ least 1 d
6. Strict Liability (Liability imposed regardless of fault: D&B)+ ARGUE UNDERLYING POLICY REASON!xiv-------- 3d§17(p may invok RI even if d&p=ignorant of accdnt f

a. Ultrahazerdous Activities (storage of dangerous substances)----------------------------------------------------------- Policies of Optimal detterence and Corrective Justice
i. Store substance that although safe when contained, is likely to do harm upon its escape-------------- Class Hypo: (Cop shoots tank at hospital chasing crimin
b. Abnormally dangerous activities (Compare SL to negligence in an answer)xv -§519(unexpectable still liable+limited to harm-in SLris
Rylands (informational disparities/reciprocal caustion pr
i. Dangerousness (likely to destroy evidence of negligence)-------------------------------------------------
1. Extreme degree of risk ---------------------------------------------------------------------------- Siegler(Gas truck explode/SL cuz it was harm within ris
2. Probability of harm -------------------------------------------------------------------------------- Spano(TNT/Cost bearing policy reason)
 3. Inability to eliminate risk w/ reasonable care--------------------------------------------------- Madsen(Minks/NO SL abnormally sensitive P activity)
-Gets at the scope of SL & defensesxix
ii.unCommonness (activity level and research incentives: SL on victims less effective) Ind. Harbor(NO SL: reasonable care pos/act. Level chng
1. Extent to which activity is uncommon ---------------------------------------------------------
2. Inappropriateness to the area---------------------------------------------------------------------- Dangerous animals (wild animals)
7. Vicarious Liability (Respondeat Superior: Negligence of Employee=SL for employers)/dramshop?------------------------- Guille v. Swan(Hotair balloonNYC/activitylevelchange)
a. Is person an Employee? (Or Independent contractor?) Ira Bushy(coast guard/forseeable cuznature of employm
i. Hourly pay vs. pay by the job; Tools supp. by employer vs. ee; Right to change details mid job -Businesses benefit from, thus assume risk for employmen
-Loss spreading function
b. Is Employee within scope of employment? -Legal efficiency
i. Actions intended to benefit employer (Bartender hits rowdy patron vs. guy he doesn’t like) -Superior risk bearer&protection from insolvency
ii. At time of tort, employer had RIGHT to control employees conduct (even if violates orders, or
tending to incidental needs, or closely job related activities) Morin (doc cops a feel/not within scope)
 Cause = But for/factual cause + (Proximate/Legal cause – Superseding cause)
eliminate alt. causes and create connections (even if speculative) counterfactual- compare world without life jackets to world with em
1. Defendants conduct was a factual cause of plaintiffs harm when…
a. But/For Rule: P’s harm would not have occurred without D’s negligence xx------------------------------------------ NYRR v.Grimstad(cant swim/ neg. vs. world w/ life v
Haft v. PalmHotel (sign or lifeguard/recurring miss p
i. If two D’s combine to cause P’s harm, and P’s harm would not have occurred without conduct of -Reyes v.Steamship(counterfactual approach/boarderlin
BOTH D’s, both D’s are a factual (but/for) cause of P’s harm (1 pint of blood, 2 bullets example)/if
only for 1ps conduct, no harm!!
b. Substantial Factor Rule: (1) If D’s conduct was a substantial factor in bringing about injury, it was a factual--- Zuchowicz(Danocrine/significant increase in risk of h
cause of the injury(2)Conduct is a substantial factor when it would have been enough all by itself to bring---- Kingston (Train Forest fire/joint and several liability?
about injury xxi (Multiple sufficient causes & Joint and Several Liability[apportionment of fault])xxii Browning (Apportionment of fault beats thin skull P)
c. Alternate Liability Rule (Summers): ---------------------------------------------------------------------------------------- Summers (concurrent Joint Tortfeasors/50% likely ca
i. (1) When 2 or more D’s commit identical acts of negligence, ----------------------------------------------- -Reluctant w/ >2 d’s due to burden
ii. (2) ONLY 1 of which causes the harm,-------------------------------------------------------------------------- -D’s in better position to know who caused harm (Ybarr
-independent tort feasors still liable
iii. (3) EITHER of which could have caused the harm----------------------------------------------------------
iv. (4) under circumstances such that its impossible to tell which one caused the harm, -------------------- -Policy reasons to defend innocent wrong from burden
v. we presume BOTH caused harm, and SHIFT to each of D’s burden to prove it was not them -Kingston compared to Summers:
Former we know what harmed P but not who caused it
(Rebuttable presumption) IF both cannot prove it wasn’t them, we hold them both liable. Latter we don’t which one of two possible’s harmed P
d. Market Share Liability: (Substance, exposure and source causation 469 come back to this)xxiii------------------- Skipworth (non fungabilitydisproportionate market sh
i. all named D’s potential tortfeasors (NEED signature Disease/substance causation problems) --------- -100 year problem/relevant market problem
-Hymowitz (overall risk production/no ind. exculp ev
ii. all harmful products identical/equally defective (fungible/exposure problems) -------------------------- Black v. Abex (Asbestos brake/single risk factor restr
iii. P tried hard, but Cant identify harm causer (Source causation problem)----------------------------------- Sindell (class action nat. mark. Share vs. local single
iv. substantially all manufacturers that created relevant product at the time are named D’s----------------- Murphy(Relative market share approach/80% for 100
Brown (absolute market share approach/10% pays for
e. Loss of Chance Doctrine (Recurring miss=proportional liability when D always < prolly then not cause)xxiv---- Herskovitz (MPTN=inadequate risk reducing incentiv
i. Probabilistic Causation: recovery based on the probability that D cause injury (only when #’s avail)- Fennell(concern is overcompensation/optimal dettera
1. Statistical Proof/Toxic Harms: 80cancer cases usually/100 in area of defective product--- (Prop liability/Indeterminate plaintiff problem???)
2. Defendants conduct was a Proximate/legal cause of P’s harm when…(risked harm to P)… SCOPE OF LIABILITY
a. Forseeability Test: D’s harm was a foreseeable result of plaintiffs negligent conduct (take into consideration
everything we now know resulted from conduct?) what must be foreseeable?--------------------------------------- Kinsman(boatdriftbridge/if forsseable plaintiff, respo
for unforeseeable extent of harmaggregate risks)
i. Unforeseeable plaintiffs (Policy: if D responsible for these, its like SL&wont deter Ds risk taking) xxv Palsgraf(P injury not remotly forseable result of Ds n
ii. Unforeseeable extent of harmxxvi (Policy: “Thin Skull π Rule: 1.practical proof, 2SL/gr8er deter)----- Smith(molten metal lipcancer/unforeseeable but still
iii. Unforeseeable type of harmxxvii (Policy: case by case directness of harm/same sort same class)--- Polemis (platform falls Shipfire/liable for all harm tha
direct consequence of negligence)/Kinsman(Iceriver)
iv. Unforeseeable manner of harmxxviii (Policy: consequences of neg. in bosom of time yet unresolved)- Marshall(truck car snowbnk/not extraordinary in retro
b. Harm-Within-the-risk Test: Is the risk of particular injury P sufered one of the risks that made D neglgnt? xxix- Berry & Wagner
c. Superseding cause coming between P’s conduct and D’s injuries?xxx
i. Neg. of D1 Proximate Cause as matter of law
ii. Secondary/non principal risk, but foreseeable------------------------------------------------------------------ Wagner(trainopenedoor/Jury culdfind danger invite re
1. IF intervening D2’s actions were 1)but/for cause & 2) foreseeable by D1, Concurring---- East (Truck)/Brower(carriage-train/Criminal interven
Atherton v dev(Ambulanc crash/concurring; not to re
(doesn’t break cause chain) Can be negligent/intentional depending on circumstances-- -Med. Malpractice foreseeable result of accident, D1
a. Foreseeability: Action of D1 was risky at least in part because they subject P-- Price(train drop hotel fire/superseding) vs.
to risk that third party D2 would come along and injure him---------------------- Hines(train drop hobo rape/ intervening)
2. IF intervening cause was unforeseeable/remote, it is superseding (break chain)------------ Watson(arsonist throws match on crashd tankr/supers
3. IF intervening cause was intentional(concurring/interveining depends on…)-------------- Horton(dynamite cap/parents experts and superseding
a. 3d rest: if intervening cause, D1 limited to those harms that result from the
foreseeable risks that made his conduct tortious------------------------------------ Example of Sleeping security guard
b. §449: probability of tortious/criminal behavior is the very hazard that makes-- Bell(class trip forgets girl and shes raped/interveining
D1 negligent (Security guard sleeping/leaves girl on class trip)
iii. Neg of D1 NOT Proximate cause of Ps injuries as matter of law (Palsgraf/Wagonmound)-------------- Berry v. Sugar(trainspeedingtree/neg not prox cause)
d. Legal cause IF: Substantial factor & there is NO rule/happening reliving him
e. Jury Instructions:xxxi responsibility to use its judgments to decide whether D was sufficiently blameworthy
under all prevailing circumstances (take a step back and look at totality of situation)
3. LIMITED duty/Proximate Cause cases: Emotional & Economic harms (General rules= none, fear of FRAUD! exceptions)
a. Mental Suffering (Negligent infliction of emotional distress)xxxii
i. If physical injury, can usually collect for corresponding mental Mitchell (Horse&buggy almost hit woman miscarr
suffering----------------------------------
ii. If no physical injury, only under special circumstances where some physical injury at least risked!!! Kenny(mouse hair in stew toched roof of Ps mouth/re
Christy(horse takes dump on womans lap/recover)
1. Impact rule: can recover for mental suffering ONLY if there is a physical impact----------
a. Policy (distinguish valid/invalid claims; limit # of claims not successful)---- Dulieu(almost hit by horses premature birth/rejects m
2. Zone of Danger Rule: P in zone in which physical danger threatened & feared for safty--- Engler(recovery for fright/Not PTS for injuries to her
-objective fear for safety, physical manifeststaions
a. Sometimes must manifest itself in physical symptoms------------------------
b. Policy(limit class of cases/cost of denying recovery to people out of zone) Dillon (Mom&sis see daughter hit/recovery for both)
3. Bystander (Dillon) Rule: Third party sees someone else get injured(bright line rule)-------  Elden(unmarried gf witnessed death/no recovery)
a. Relationship: Only if P CLOSE relative(Duty foreseeability issue)-------------- Tobin(kid injured, mom heard but didn't see/no recov
b. Proximity: P was near bye when it happened (Duty foresseability issues)------ Thing(mother didn't witness/no recovery Maginot
c. Visibility: P perceived it with own senses (Duty forseeability issue)-------------
4. Fear of future injury:
iii. Direct victim rule: someone who D already owed independent duty of reasonable care
a. Negligent mishandling of a corpse
b. Negligently sending incorrect death telegram to loved one Mollene(false Syphillis/husband direct victim of negl
c. Negligent conveyance of important medical information--------------------------
b. Economic Harm (pure Lost profit, usually cant even make out a negligence case!)D risked some other Union oil(oil spill kills fish/fishermen can recover eco
harmxxxiii
 To whom do we owe a Duty of Reasonable Care… SCOPE OF LIABILITY
AFFIRMATIVE CONDUCT RULE: Usually you Don’t owe ANYBODY a duty to protect them against a risk, unless you created
the risk by actually doing something(can be negligent or non-negligent action in some cases)…xxxv
1. Normally, NO Duty to Rescue…EXCEPTIONS BELOW(look for reliance issues------------------------------------------------- Hurley(dr. didn't render aid/no duty by D to rescue P)
Yania(strip mine drown, Pcoaxed Din /no duty to resc
a. D Affirmatively does something to increase the danger to P(doesn’t HAVE to be negligent)------------------------ Montgomery(trucks stopd icy hill/duty warn cars dan
b. D has a special relationship to P (enabling torts can impose duty to rescue/early neg. entrustment cases)
i. Parents (custodians)-children
ii. Operators of Railroad-patrons (captain of ship)---------------------------------------------------------------- Pryce & Brower(railroad hobo rape & motel fire case
iii. Restaurant owners-patrons (if specific threat+specific harm)------------------------------------------------ Morris(bouncer didn't help patrons attacked/duty to p
iv. Fiduciary relationships (Rs based on trust)xxxvi
Kline(P mugged in apt hallway/duty by D to provide
1. Landlord-Tenant--------------------------------------------------------------------------------------- of security reasonably expected by P when she moved in
a. Pre existing relationship between tenant and proprieter (contract/invitation)--- Burgos(rapped in apt/causal link btw LL failure lock
b. Circumstances putn landlord on notice of a particular risk to P from 3rd parties PacificPlaza(raped at work/no landlord duty to provid
moresecuirty because no prior similar incidents had occ
c. (Then figure out if they breeched dutyrisks were probable/foreseeable ect)
2. Doctor-Patient ----------------------------------------------------------------------------------------- Tarasoff(Dr duty to act reasonably to protect 3rd parti
a. Limited to cases where specifically identified third party is at risk &----------- Thompson(juvenile murders kid/no duty cuz no victim
b. Psychiatrist either does or should have predicted harm to that party------------- Long(didn't inform wife husband getting released/reli
c. USUALLY must be seeing patient on full/semi full time basis(relationship)--- Morgan(man killed parents/outpatient setting=Dr. dut
c. D Undertakes to act (but ONLY if that act somehow increases danger that P is in)------------------------------------ Erie Railroad(No crossing watchman/D provided extr
security at crossing causing P to reasonably rely on it)
d. D is a Landholder (premises Liability)LIMIT on Duty differs depending on P’s classification
1. Invitees (Enters…): Duty of reasonable care
a. Businesspresence confers some economic benefit on landholder
b. Social Guests of tenants invitees cuz they confer economic benefit
c. Publicenters land based on invitation by landholder to general public (open
house)
2. Licensees (Enters with permission): Duty to give warning of known dangerous hiden
artificial conditions)
a. Social Guest Invited for social purpose
b. Public official EVEN IF you denied them permission
3. Trespassers (Enters without permission): Duty to refrain from intentionally injuring them
a. Discovered trespassers are owed care owed to Licensee--------------------------- Bush(8yr old mashed hand in Ds machine/no duty
-However, this decision probably overturned toda
b. Foreseen Child Trespassers: Attractive nuisance -----------------------------------
ii. Reasonable conduct under all circumstances Test (throws out categories/reduces Rowland(still not majority rule/administrative costs h
predictability)-------
1. Foresee ability of the harm
2. Closeness of connection btw ds conduct and Ps harm
3. Moral blame attached to P’s conduct

Defenses

Affirmative Defenses Based on Plaintiffs Conduct: (D’s burden to prove that P breeched duty to himself DBCD) Gyerman(Fishmealsacks/TJhooper custom/sub fac ca
1. Contributory Negligence(Policy: want to make both parties take injury reducing steps)xxxvii---------------------------------------
a. All or nothing approach P acted unreasonably & that contributed to accident, NO recovery…
EXCEPTIONSxxxviii Koenig(risky emplyment/no cont neg defense for emp
i. Safety Statute Violation by D (meant to protect that P from that type of harm)--------------------------- Dunphy(P refuse to wear castamputation/no cont n
cuz doc relation negates knowldge & appreciation of ris
ii. Medical Malpractice cases(general knowledge and appreciation of risk by P necessary----------------- Smithwick(Ice house instructions/not harm within ris
iii. Proximate Cause issues-------------------------------------------------------------------------------------------- Mahoney(Rolls Royce/cont neg speed increased dam
2. Comparative Negligencexxxix Derheim(seat belt/relative damages v. relative fault/n
a. Pure approach P’s recovery diminished in proportion to P’s own fault (never a complete bar)--------------------
b. Modified approaches 42Pa. Cons. Stat. §7102…where such negligence was
1. P’s recovery in proportion to his own fault, however once p’s > d’s fault, NO recovery--- greater then the causal negligence of D against whom re
2. If P’s fault= to D’s, he gets nothing-----------------------------------------------------------------
ii. Joint and several liability: 3 approaches
1. D jointly and severally liable for amount of judgment
2. Each defendant liable only for its own proportional share of the judgment
3. Responsibility for insolvent defendants apportioned between D’s and P’s by comparing
the amount of negligence attributable to each of them.
3. Assumption of the risk (Varies from Jurisdiction to Jurisdiction) xl
a. Express Assumption of Risk: like consent Dalury(Killington/exculpatory contract clause to broa
i. ONLY if P actually aware of the risk & encounter voluntary + strong prob harm will occur------------
ii. Complete defense that defeats plaintiffs claim Moulas(baseball game hit/heightend vulnerability ven
b. Primary assumption of the risk (no duty in this situation, so D not Maddox(baseball player knee/awareness+continued t
negligent)------------------------------------------- Murphy(Flopper/observed risk&expected danger; no
i. nature of activity+parties relationship to it= no duty reasonable care--------------------------------------- Meistrich(skating rink/P expert thus liable in loose se
ii. P must show intentional or reckless behavior by D to recover as no ordinary duty of care owed-------
c. Secondary Assumption of risk (comparative negligence) affirmative defense based on P’s conduct-------------
i. Partial defense in others/reduces amount of liability Eckert vs. Firefighters rule
d. Conscious Reasonable risk-taking (Like Cardozo treats rescuers)
i. Fact that P consciously but non-negligently assumed a risk is not a defense-------------------------------
 DAMAGES
1. Nominal: “In Name Only”
a. P who has been victim of tort, but has had no actual damage (6 cents)
i. Intentional Torts (Battery, Trespas, Assault) none of which require actual damage
ii. Unlikely in Negligence cases because actual damage is a requirement
2. Punitive: awarded to P for purposes of Punishing Dxli
a. Only awarded when D does something that merits punishment (Malice or fraudulent or oppressive actions)
b. Unconstitutional because like criminal punishment ??
i. Supreme courts regulated should never be more the 4-9x actual damages---------------------------- State Farm
ii. Award of Punitive damages cannot be based on what D has done to other people besides P
iii. % paid to state rather then P? Unlawful taking?
iv. Standard some require CLEAR AND CONVINCING EVIDENCE (between preponderance and
beyond reasonable doubt)
v. Can Insurance policies cover punitive damages? NO usually not, because it would be punishing
insurance companies and not D
3. Compensatory: Compensate P for harm sustainedxlii
a. Collateral sources rule if P has received money from anyone other then D (own insurance)… that doesn’t
matter in damage calculations
b. Duty to mitigate damages P must act reasonably to minimize that injury
c. Calculating Damages (done by Jury)
i. Jury can take into account future circumstances such as potential earnings
ii. But also deduct based on diminishing future returns (decreasing probability P will be alive 10 years
down the road)
d. Damages in survival or wrongful death actions (governed by statutes)
1. Family can bring suit for loss of future wages of a spouse, children or parents of decedent
2. Funeral expenses McDougal
3. Greif?
i
Jury must decide the mixed question of law and fact; ie “should defendant have behaved more carefully”…
ii
The questions is how a reasonably prudent person would have acted under the circumstances, not whether the Δ meant well or was in
good faith.
1. Subjective standard would be infinitely variable and would require much more complicated and difficult fact-finding
2. Subjective standard would encourage fraud and deception
3. Because Δ’s strengths and weaknesses do not count, objective standard has greater potential for encouraging the Δ to exercise
all the care and skill she can; threat of liability may push Δs to do their best.
4. Gives the public assurance that those to whose actions they are exposed will either act with a predictable level of care or be
liable for the consequences of failing to do so
5. Asks the members of the jury to judge the Δ based on their own knowledge and experience, not to engage in psychology or
attempt to look into the Δ’s mind. NEED ONLY decide how reasonable person would have behaved, and compare defendants
behavior to that.
iii
D ONLY negligent if a reasonable person in the same circumstances as Defendant would have taken precautions against the risk that
defendant did not take.
iv
Medical students get a lower standard?
1. Accepted in Rush v. Akron General Hospital – skill level only equal to others of same training to not be liable
2. Rejected in McBride v. United States – intern who misinterprets test is liable if not provide medical treatment of standard of
industry if med students not held to same standard BAD POLICY result because it would be just like children engaged in
adult activities: patients might not have a way to protect themselves (if they are unconscious), therefore shouldn’t be made to
bear all the risk from an essentially unavoidable harm. ALSO encourages med students to be more careful knowing they will be
held liable for their mistakes (like how the normal reasonable person standard might affect a dumb persons behavior)
3. Physician’s Desk Reference is not a standard – guidelines for many reasons
a. Morlino v. Medical Center of ocean County – prescription which violates PDR not always negligent
v
Jones v. Chidester: Respectable minority rule: non-compliance with a standard rejected by much of the profession is not malpractice, as
long as the Δ complied with a school of thought or practice followed by respectable minority of practitioners (quantitative= LOTS of
other physicians, just not custom; qualitative= small well respected subset of physicians whom it would be reasonable to follow… or else
no medical progress would be made)
vi
Physicians must reveal (i)Benefits of the surgery (ii) Possible alternatives to surgery (iii) Risks (iv) Consequences from doing nothing
(Truman v. Thomas- Papsmere Cervical cancer)
vii
Reasonable Patient/reasonable physician standard & Causation issues
a. 2 exceptions:(1) patient is unconscious/incapable of consenting or (2) if disclosure poses such a threat of detriment to
patient as to make treatment infeasible
b. Dangers inherent in every operation need not be disclosed, nor dangers the patient has already discovered
c. Must be causal connection between breach and patient’s injury
d. Medical custom regarding information disclosure may be relevant but is not dispositive.
2. Reasonable-Physician Standard: (MINORITY RULE)
a. Requires that physician comply with the standards of the profession regarding disclosure of information to patients in
the Π’s position.
b. Actionable only as malpractice.
c. requirement that there be expert testimony to the applicable standard of disclosure
d. possibility that liability will be imposed less often where the respectable-minority rule obtains.
3. Causation in Informed Consent Cases
a. Proof of a causal connection between failure to make proper information disclosure and the Π’s injury is required.
Ordinarily, this means the Π must show that he would have declined the treatment that caused his injury if he had
been given the requisite information about the risks posed by the treatment.
b. Courts have adopted an objective standard for this.
c. Doctrine of informed consent (1) protects the interest of idiosyncratic patients and (2) encourages the dissemination of
information to the great mass of ordinary patients.
i. (2) Encourages informed dialogue between patient, family and doctor.
viii
Violation of a statute may be prima facie grounds for negligence; Ask three questions:
4. What does the language of the statute say?
5. What are the legislators trying to accomplish?
6. How does this apply to my case?
a. Legislature can not intend a tort, but can intend to protect a party
b. Example: Osborne v. McMasters – Statute requires poison to be labeled by sellers. No label and plaintiff drinks and
dies. Court finds McMasters liable because the statutory sets a bright line for negligence. Statute intended to protect
buyers of poison and this purpose is violated by not labeling. Negligence results.
c. Violation of a statute is not by itself an indication of negligence
i. The statute must be linked to the plaintiff’s injury
ii. Teal v. DuPont – independent contractor injured falling from OSHA-violating ladder. OSHA’s purpose is
to protect workers thus indication of negligence
 iii.What is the purpose of the statute? To prevent injury to group x
1. Ross v. Hartman – Leaves keys in car in violation of statute. Theft and reckless driving injures
Ross. Purpose of the law is to prevent theft which may result in injury to bystanders from
reckless driving by thieves, or underage thieves. Thus, liable for injury to bystanders.
a. Ask: Will violating the statute increase the likelihood of the result in the situation at
hand
2. i.e. Dram Shop laws – hold those selling alcohol to already drunk people liable for the harm they
cause in drunk driving. Justification: “protect society from the danger of drunks”
3. Kernan v. American Dredging Co – coast guard regulation requires ship lamp to be > 8 feet
above water. Low light ignites oil on water. While regulation was not to prevent fire, purpose
was to protect sailors so Supreme Court allows liability.
4. Stimpson v. Wellington Service Corp. – Heavy truck drives on city road without permit.
Damages road and underground pipes resulting in flooding of a building. Court says purpose of
statute is to keep road in good shape, and also because heavy vehicles might hurt other property
so hold liable.
iv. Courts are generally liberal in extending statutes to cover plaintiffs with right injury in a similar situation
(e.g. Teal-independent contract treated like employee in ladder situation)
v. If violation of the statute had no relationship to the injury (i.e. no causation), then statute does not create
negligence per se
vi. Cannot aggregate risks: injury must have resulted from what the statute was specifically targeting (Gorris-
sheep overboard)
ix
Contributory Negligence inapplicable (Statutory violation does not permit a contributory negligence defense)
a) Licenses can function much like statutes
i) License’s purpose is important
(1) License granting permission
(a) Fishing license doesn’t tell us anything about the individual who has the license
(b) Lack of a fishing license doesn’t likely imply negligence
(2) License indicating skill
(a) To make a negligence per se argument, must be able to show that people without the license tend to act
unreasonably
(i) They are more likely to act without skill
1. Brown v. Shyne – chiropractor practicing without a license, woman injured from care. Court finds the
lack of a license is no evidence of negligence. Poor quality of care is grounds, but lack of license is
not enough. Likely because medical license isn’t chiropractic.
a. Dissent says lack of license is negligence per se. Trial court says it is some evidence.
(b) Driver’s license tells us something (some skill or training required to receive)
(c) Lack of a driver’s license may imply negligence

x
The Defense of Limited Statutory Purpose
1. Permits the Δ to show that the Π was not in the class of persons intended to be protected by the statute which Δ violated or
harms statute was designed to address were not this particular harm.
2. Defense rarely prevails in practice, because modern courts are likely to hold that at least a “secondary” purpose of the statute
was to protect individuals in the Π’s situation. -Brown v. Shyne (p. 81)
xi
Second Restatement reduces the “exclusive control” requirement
1. Even when another party is involved, some responsibilities are non-delegable.
 Colmenares Vivas v. Sun Alliance Insurance – riding escalator which jolts and injury results. Second party is
contracted to maintain escalator. However, court says that you can’t delegate responsibility so important to the
community. Res ipsa may apply
2. Without forewarning, hotels are not responsible for the behavior of guests
 Larson v. St. Francis Hotel – hotel not responsible for chair being thrown out window from hotel room.
 Connolly v. Nocollet Hotel – hotel liable for chair thrown out window when a rowdy group of students staying there
since hotel knew about their wild behavior.

xii
Burdens of proof

a) Plaintiff Burden of initial production

(1) Must tell a story
(2) Enough evidence to get to the jury
(3) Need enough evidence to get beyond the directed verdict line
b) Defendant Burden of shifted production
(1) Shifts to defendant after the plaintiff meets their burden of production
(2) Enough evidence to get to the jury
 (3) Need enough evidence to get beyond the directed verdict line
ii)  arguments against res ipsa (1) wrong kind of accident (not in control) & (2) Wasn’t negligent (demonstrate that their
control actually was not negligent)

xiii
USUALLY, IF MANY HANDS TOUCH AND HAVE CONTROL OF INJURY CAUSING INSTRUMENTATLITY, DIFFICULT
TO MAKE RES IPSA CASE cuz you cant just sue everyone (chicken salad case)
a. “Smoking Out” the Evidence from the 
i. Great advantage in cases where res ipsa is invoked is that the Δ is then forced to present evidence to defend
himself rather than hide behind the difficulty the Π faces in adducing direct evidence
ii. Res ipsa performs the function of “smoking out” evidence in the possession of the Δ
iii. May be that because of modern discovery the doctrine is no longer needed to perform this function
iv. Even if you had res ipsa loquitur, won’t smoke out the evidence in most cases because this supposes one
would lie in deposition and tell the truth in trial
b. The Ybarra Problem
i. Ybarra v. Spangard: Π sued several different health care providers, one of whom more probably than not
committed malpractice while the Π was unconscious; invoking res ipsa created the possibility of smoking
out evidence from one of the Δs who had witnessed another’s malpractice, or from the Δ who had actually
committed the malpractice in question, who might have preferred to admit his wrongdoing rather than see
his colleagues held liable for something they did not do.
ii. For res ipsa to be able to smoke out the evidence in situations such as Ybarra:
1. One or more of the Δs must actually have knowledge about the cause of the Π’s injury that would
be useful as evidence.
2. Any Δ who does have evidence that would be useful to the Π must be willing to lie under oath in a
deposition but willing to tell the truth under oath at trial.
**Res ipsa may be unfair way of obtaining under the table strict liability
xiv
The Theory Behind Strict Liability
a. Generally
i. Promote optimal deterrence and to achieve corrective justice. Imposed in addition to negligence.
ii. Imposing strict liability will not change the level of safety because s will act in self interest.
iii. Question becomes whether potential injurers or potential victims should bear strict liability.
1. With no strict liability, victims bear the cost of non-negligently caused injuries. Must decide
circumstances that victims would not bear this risk.
iv. 5 ways in which strict liability potentially can be superior to negligence (impose costs on injurers).
b. Greater Accuracy
i. Shifting from negligence to strict liability in cases in which inaccuracy by juries is likely to be most prevalent
might more effectively achieve the goals of negligence liability.
c. Administrative Cost Savings and the Level-of-Generality Issue:
i. Shift to strict liability saves admin costs b/c determination of Δ’s negligence is not required
ii. However, likely to have more claims when activity is subject to strict liability.
iii. Whether savings occur depends heavily on level of generality of strict liability rules in question.
d. Activity-Level Effects
i. Strict liability may create incentives for potential Δs to engage in safer activities
ii. 2 reasons why this is problematic compared to negligence:
1. For activities without readily available substitutes, strict liability would result in more claims, no
greater safety, and little or no change in activity level.
2. There is always strict liability and therefore always activity level effects—question is just whether
there should be injurer strict liability
iii. Results in mixed system in which negligence liability predominates with pockets of strict liability
e. Additional Research Incentives
i. Injurers have incentive to attempt to discover cost-effective methods of avoiding accidents that “are not worth
avoiding”
f. More Extensive Loss Distribution
i. To extent loss distribution is regarded as an appropriate goal, strict liability is probably superior.
Injurers more likely than victims to be large institutions that can spread the cost of liability or to purchase liability insurance, thus get a
broader distribution.
xv
Compare the rules: in SL
a) Negligence – not negligent, no liability (injured left with the costs)
b) Strict liability – cause harm, must compensate (injurer always pays costs)
c) If multiple actors and if one of the actors could have taken due care to avoid the accident, then it is hard to get strict liability.
d) Need a reason to apply strict liability
e) if nothing could have been done to avoid injury, strict liability might apply
i) Precaution
(a) Under strict liability you take more precautions (sometimes), but you still weight the costs of your remedy to the
costs post-injury.
 (b) There is a cliff under negligence after which the jury will hold the negligent actor liable for all injury and thus
there are situations where a defendant will take greater precaution under negligence
1. Especially because there are issues of uncertainty with juries
(c) Only matters if the defendant can take more precaution
(d) Strict liability may alter activity levels
(e) May encourage R&D to make a product non-harmful (avoid liability)
ii) Lawsuits
(a) More suits under strict liability
1. But the only litigation is on causation and damages
(b) Fewer suits under negligence
1. But litigation negligence, causation, and damages
2. So much more expensive litigation
iii) What kind of liability?
(a) Negligence
1. Reciprocal risks
2. Natural items (may be required to control if you take some control initially)
3. Non-dangerous
(b) Strict liability
1. Non-reciprocal risks
2. Non-natural
3. Dangerous items
4. Restatement §522-524 (p. 593, 607)
xvi
Daniels v. Evans: 19-year-old killed when his motorcycle collided with Δ’s car; can’t tell whether driver in approaching car is minor
or adult, so cannot exercise extra care; adult standard of care should be applied to minor drivers.
xvii
Breunig v. American Family Ins. Co.: Δ thought she and her car could fly “because Batman does it”; people who suffer delusions
but have periods of lucidity may have a duty to prevent oneself from causing harm while delusional; if Δ had forewarning, had duty to
take proper precautions to avoid injuring people
xviii
Newig v. Cheatham – plane crashes killing passengers. After eliminating weather as a cause, responsibility is on pilot who had
exclusive control over the aircraft. Res ipsa eliminates the burden on the plaintiff in showing what the precise cause was.
xix
Scope of Liability and Defenses in Strict liability cases
iii) Strict liability is not absolute liability for engaging in a particular activity, but only for those consequences that this form of
liability is designed to address.
iv) Madsen v. East Jordan Irrigation Co.: Π’s mother mink ate their young after being frightened by blasting; not strictly
liable, because the possibility that this would occur is not even one of the secondary risks that enters into the decision to
impose strict liability for blasting.
v) Δ is not strictly liable if the harm in question results from an act of God, or the unforeseeable intervention of a third party,
or from the Π’s knowing and unreasonable assumption of risk.
vi) In these situations, the purpose behind strict liability is less easily served, would affect the Δ only marginally, and not
much is to be gained from imposing strict liability
xx
But/For
 “but for” the Δ’s breach of care, the Π would have suffered injury or damage
 Being a negligent but-for cause makes a Δ eligible for liability, but the Δ is not liable unless his negligence was also a
proximate cause; a necessary, but not sufficient condition of liability
 NY Central R.R. v. Grimstad: Π’s decedent was knocked overboard; before his wife could find a line to throw to him, he
drowned; Π alleged Δ was negligent in not providing life preservers or other safety devices; proximate cause was falling in the
water; although the Δ was negligent, that negligence was not a but-for cause of the drowning; without “but-for” causation, can’t
go to jury
 Haft v. Lone Palm Hotel: father and son drowned in hotel pool; in CA, statute requires lifeguard or sign announcing lack of
lifeguard; Δ’s negligence is potentially responsible not only for causing the drowning, but also for absence of evidence, so make
exception of “but-for” rule when Δ’s negligence is responsible for lack of evidence of causation.
xxi
Substantial Factor
o In theory, merely requires a finding that Δ’s negligence was a major contributor to the Π’s injury or damage. In practice
difference between 2 tests is largely a matter of emphasis.
o Court must decide whether an inference about what would have happened in this situation if the Δ had not been negligent is
permissible.
o Reynolds v. Texas & Pacific Ry. Co: Π weighed 250 lb. and was warned to hurry to catch a train; hastening down unlighted
steps, she fell and was injured; if Π proves that the negligence of the Δ greatly multiplied chances of the accident, Π has made
out a jury question on the causation issue.
o In absence of other probable causes, jury permitted to find the Δ’s negligence is the probable cause
o Zuchowicz v. United States: suit for injuries and death allegedly caused by overdose of drug; question of whether
even an appropriate dose could have caused the harm; factfinder must be able to conclude that the overdose was the
 cause of Π’s illness/death, not exposure to drug; testimony of Π’s expert sufficient to support verdict for Π, b/c
expert ruled out a series of other possible causes, which made the Π’s contention more likely
 (Cardozo, Traynor) If the negligent act was deemed wrongful because that act increased the chances that a
particular type of accident would occur, and a mishap of that very sort did happen, it was enough to support
a finding by the factfinder that the negligent behavior caused the harm.
 Allocate assessment of the reliability of expert testimony to the trial court and assessment of the
persuasiveness of that testimony to the jury
xxii
The Theory Underlying the Causation Requirement
1. In part of the reason for requirement of a causal connection is the concern for corrective justice.
a. For purposes of deterrence, the fact that the Δ risked harm to others is the relevant consideration.
b. Requiring proof of causation is simply a way of communicating to the Δ in advance the scope of the liability it will
face
2. Injury Caused by Multiple Sufficient Causes
a. Two Simultaneous Forces: Both Negligent
i. Both are held to have caused Π’s loss.
ii. Law chooses overdeterrence (since the harm will occur anyway even when one of the Δs is careful) rather
than underdeterrence through failure to impose liability.
b. Simultaneous Forces: One Negligent, One Not
i. Kingston v. Chicago & N.W. Ry.: one fire was of unknown origin and other caused by negligence of RR;
any one of two or more joint tortfeasors whose concurring acts result in injury is individually responsible
for the damage; Δ’s burden to show that the fire that joined his fire originated from natural causes.
ii. Tendency of the courts is to hold the negligent Δ liable when one fire is set by human negligence and one
not, but not all courts do so.
iii. Slight over deterrence because damage would have occurred even w/o Δs negligence.
c. Sequential Forces: One fire arrives, then next fire arrives
i. The party responsible for the first force is liable if negligent, and party responsible for the second force is
not responsible, even if negligent.
3. Joint and Several Liability
a. Each party is liable to the Π as if he were the sole wrongdoer, responsible for the entirety of the Π’s damages. Π is
entitled to recover the full amount of his damages from either Δ, but cannot recover more than the amount of his
damages
b. Statutes have created “rights of contribution” among multiple tortfeasors
c. A right to be reimbursed by another Δ for a share of the amount paid to the Π
d. Many states now assess contribution shares in proportion to the amount of negligence attributable to each co-Δ,
rather than on a straight fractional basis
e. Places the risk of any Δ’s insolvency on the other Δs rather than on the Π
xxiii

How to allocate market share – based on the risk they caused

vii) If national, look at national market share
(1) i.e. class actions against many manufacturers
viii) Local, look at local market share
ix) If some of the market share is missing, sometimes we just allow recovery for the identified parties
(1) McCormack v. Abbot Labs – each defendant was entitled to establish its small share with the remainder divided
equally among the remaining defendants. If some part is missing after this calculation, defendants are not liable for
that portion.
xxiv
How Damages are affected (Herskovitz)
i) Majority held that the entire cause of death should go to the jury
(1) If more probable than not the 14 percentage point drop caused death, liability on D.
ii) Concurrence said the reduction in likelihood of the cure should go to the jury
(1) The lost chance of a cure (14 percentage point drop) is actionable
iii) In either case, you don’t recover the full amount for death, but a different calculation
b) Rule:
i) If over the range of cases, the more probable than not standard can apply, then keep it. If you can’t use the more probable
than not standard, change the causation standard to make it causation if the change in probability of survival rather than
allowing all who harm to get off.
(1) Probability of death from negligence / (probability of death from negligence + probability of death without
negligence)
c) Issues
i) How much increase in risk is enough?
ii) The new standard may allow too great a recovery
iii) Would medical monitoring be successful in preventing this disease
(1) P suffered increased risk of contracting disease
(2) Risk makes medical monitoring necessary
 (3) Technology exists that make monitoring feasible
(4) If so, may gain monitoring as a portion of damages

xxv
Unforseeable  (Forseeability most often required)
1. Generally, no liability.
2. Palsgraf v. Long Island Railway: RR employee helped a passenger on a train pulling out, dislodging a package of fireworks
which fell, exploded, causing scales on the platform to topple onto ; (Cardozo) case could not go to jury as Δ had not
breached a duty to , because harm to her was not a foreseeable risk of what the Δ had done; (Andrews, dissenting)
foreseeability more malleable concept and the question whether Δ’s negligence was a proximate cause of Π’s injury was
properly for the jury.
a. Sometimes courts employ Cardozo’s approach, sometimes Andrews’ approach
Foreseeability a more malleable concept than Cardozo believes, and the question should go to the jury
Once Defendant is negligent as to some unreasonable risk of harm to Plaintiff, defendant is liable for the full extent of harms so long
as they are:
(a) Same general sort (Wagonmound)
(b) Same kind of forces
(c) Same class of persons (Polemis– falling beam explodes ship, Peoples Airline – terminal evacuation)
2) Two parties have differing goals
(a) Plaintiff: convince judge foreseeable enough harm to send case to jury
(b) Defendant: show that there is a lack of proximate cause to get directed verdict and avoid jury
xxvi
Unforseeable Type of Harm
i) No liability; but done case-by-case depending on whose in best position to prevent.
ii) In re Polemis & Furness Withy & Co: plank fell into the hold of a ship where petrol was stored w/h caused an explosion
that destroyed the ship; Δ’s negligence was a proximate cause of even unforeseeable harm, so long as the harm was a
“direct” consequence of the Δ’s negligence; thin-skull case with the added caveat that the rule applies only where an
unforeseeable extent of harm is the direct consequence of the Δ’s negligence.
iii) The Wagon Mound: Δ negligently flushed oil from its ship harbor; oil eventually caught fire and destroyed Π’s dock;
overruled Polemis; Δ could not be held liable because the damage was not foreseeable.
(1) There can be no liability when a foreseeable Π suffers an unforeseeable type of harm, even if that harm is a direct
consequence of such negligence, but there is still liability to a foreseeable Π for an unforeseeable extent of harm.
iv) Wagon Mound rule more extreme than more US courts accept
v) Most American courts make the proximate cause determination on a case-by-case basis, taking into account variety of
factors, including:
(1) directness of the harm
(2) The degree to which it more closely resembles an unforeseeable type of harm than an unforeseeable extent of the
same type of harm that was foreseeable.
(3) Whether the Δ’s negligence caused other damage for which it is already being held liable and therefore not being
totally exonerated from liability.
xxvii
Unforseeable Extent of Harm
i. “thin skull” rule”: The Δ “takes his victim as he finds him” Vosburg v. Putney
i. Rejection of rule would create a multitude of practical problems for juries.
ii. Rule also imposes a desirable kind of strict liability.
ii. Threat of liability can promote optimal deterrence because potential Δs can make at least rough calculations of the
scope of the risk that their actions will result in such liability.
iii. Exceptions:
i. Δ does not take a negligent Π as he finds him
ii. even a non-negligent Π is obliged to take reasonable steps after injury to mitigate the extent of the losses
suffered.
xxviii
Unforseeable Manner of Harm (Forseeability least often required)
i. Injury Π is unquestionably foreseeable, but injury occurs in a peculiar or bizarre manner.
ii. Marshall v. Nugent: Δ’s driving forced  car off the road; Π suffered injury after he had walked down the road and was
struck by a third vehicle as he was attempting to warn oncoming traffic of the danger; despite the unusual way in which the Π
was injured, did not preclude liability on the part of the Δ.
iii. Unless in retrospect the manner in which a foreseeable Π suffered a foreseeable type of harm appears to be extraordinary, the
fact that the harm occurred in an unforeseeable manner does not bar recovery.

xxix
The Harm-Within-The-Risk-Test
i. Is the risk of the injury the Π suffered one of the risks that makes the Δ negligent?
ii. Berry v. The Borough of Sugar Notch: question of whether the negligence of operating a trolley above the speed limit was a
proximate cause of harm that resulted when a tree fell on the speeding trolley as it passed by; speeding did not increase the risk
of harm, so as a matter of law the negligence at issue was not a proximate cause of the damage that occurred
 i. Every case after Berry shows that Δ’s negligence increased risk.
iii. There are cases in which the risk that the Π would suffer the harm that actually materialized was not the principal risk, but that
risk was nonetheless a foreseeable (“secondary”) and relevant risk.
i. Question is whether, although the risk was not the principal risk, that risk was sufficiently significant to be a factor in
the negligence determination.
ii. Wagner v. International Railway Co.: Δ was negligent in failing to close the door to one of its cars, permitting Π’s
cousin to be thrown out as the car rounded a curve; Π was injured while attempting with others to rescue his cousin.
1. Over time stands for the notion that danger invites rescue.
2. One of the risks that makes it negligent to risk harm to another is the risk that a different individual will be
injured while attempting to rescue him from the consequences of the Δ’s actions.
xxx
Foreseeability matters
a) If actor 2’s actions were foreseeable by actor 1, then a harm within the risk and case goes to the jury (harm within the risk)
i) Ross v. Hartman – Leaves keys in car in violation of statute. Theft and reckless driving injures Ross. Keys in car is
proximate cause of injury because injury to people is foreseeable from theft due to keys in car.
ii) Hines v. Garrett – train passes stop at night, passenger has to walk home through dangerous area and is raped. RR is liable
under proximate cause because risk was foreseeable when made her walk through dangerous, unsettled, area
iii) Central of Georgia Ry v. Price – Train passes stop, woman escorted to hotel where a lamp explodes harming her.
Exploding lamps are not foreseeable when RR leaves one at a hotel.
iv) Dillon v. Twin State Gas & Electric – boy trespassing falls onto exposed wires and is electrocuted. Twin State liable for
exposure to wires because could foresee trespassing on the bridge near the wires and thus exposed wires were foreseeable
risk.
v) Exception – intentional torts
(1) If actor 2’s action is an intentional tort, must be clearly foreseeable to maintain liability for actor 1, even if actor 1 is
negligent.
(a) Actor 2 pours gas on smoldering leaves – D1 is not liable because this intentional act is not very foreseeable
(2) If actor 2’s action is the kind of thing D1 is supposed to be preventing, then both are liable
(a) Crime used to cut off liability.
(i) Watson v. KY & IN Bridge RR – tanker derails and arsonist throws match at spilled oil. Railroad is not
liable for damage due to crime.
(ii) But restatement says if negligence creates the risk that intentional tort (crime) will occur, the negligence of
D1 is still actionable
(b) Intentional arson inside building while watchman sleeps – D¬1 is hired to prevent harm to building, thus arson is
“foreseeable” and both are liable
(c) Brower v. New York Central & HRR – Train strikes wagon, not stop thieves. Railroad is liable for the theft
because they caused incapacity of wagon driver and indeed foresaw the risk of theft (protected own train) so
liable for loss.

xxxi
Negligence as a Matter of Law: The Role of Judges and Juries
1) Issues are submitted for decision by the jury if “reasonable people could disagree” about the resolution of the issue. Issues
are decided as a matter of law if “reasonable people could not disagree”
2) Unless there is evidence to find negligence, case can’t go to jury; directed verdict when there is no evidence for Π and/or no
credibility question.
3) Applies to both pure questions of fact and to mixed questions of fact and law
4) Driving Blindfolded Example
i) If factual issues not in dispute, court would grant Π’s motion for DV on issue of negligence
ii) If factual question of whether driving blindfolded is in dispute, jury will be instructed that “if it finds Δ drove
blindfolded, then it must find Δ negligent, because driving blindfolded is negligent as a matter of law”
5) In granting motion for directed verdict, a court is essentially making “little rule”; every time someone does x under following
circumstances, it is negligent.
6) Baltimore and Ohio R.R. v. Goodman: Goodman was killed when the truck he was driving was struck by the Δ’s train at a
grade crossing; (Holmes) S. Ct. held that nothing is suggested by the evidence to relieve Goodman of responsibility for his
own death and that someone in Goodman’s situation must stop and get out of the vehicle, although he would not be required
to do more than to stop and look; directed verdict should have been granted for Δ because Π was negligent as a matter of law
7) Pokora v. Wabash Railway Co.: similar facts to Goodman; Π approached railroad crossing; stopped, looked, listened but did
not get out of car; (Cardozo) the Π in Goodman may have been contributorily negligent as a matter of law given the particular
facts of his case, but a jury should have decided the issue of negligence based on the circumstances.
i) S. Ct. is moving away from setting rules and grating DVs and moving to jury verdicts.
8) Court’s discretion over time had been to leave juries with greater discretion and grant fewer DVs.
i) Fact situations sufficiently similar to warrant development of rules of law have not occurred.
ii) Politically less dangerous for elected judges to leave tough decisions to juries.
9) Judge & Jury
i) Courts are more likely to expand the class of plaintiffs and less likely to expand the list of crimes
ii) Effect of court decisions
 (1) Directed verdict creates a rule for future cases
(a) Certain issues are or are not negligent
(2) Affirming a jury verdict creates no rule
iii) Rules v. Standards
(1) Rules are more consistent
(2) Standards are subject to arguments of arbitrary application

xxxii
“Pure” Emotional Loss
1. Generally
a. Issue here is whether there is a cause of action for emotional loss that is not a result of the negligently-caused personal
injury.
b. Original rule was that there was no cause of action. High level of generality.
2. The Impact Rule
a. First relaxation of rule. Permitted recovery in negligence for pure emotional loss only if the s conduct resulted in
some physical impact on the ’s body. No req.  be physically injured.
i. Abraham likes idea of general rule, but this one is just bad.
3. The Zone of Danger Rule (Replaced Impact Rule)
a.  c/d recover for negligently caused emotional loss even if there was no impact, if the  was in the “zone” w/h
physical injury was threatened and feared for own safety.
i. Courts still worried @ fraud and floodgates still required some physical injury.
4. The Dillon Rule
a.  need not be in the zone of danger (no sense in that) but three factors to consider: (1) proximity, (2) visibility and (3)
relationship.
b. With or without Dillon test, court have drawn pretty bright lines on cases on can recover.
xxxiii
Economic harm must be foreseeable in a particular way
i) We don’t typically allow economic damages because it is not foreseeable
(1) Too many plaintiffs
(2) Too large of damages
(a) Defendant doesn’t foresee this type of harm
(b) Damages are out of proportion to the negligence
(3) Proof issues / fraud
(a) Difficult to prove that this indeed should receive economic damages
(4) Economically speaking
(a) Net social loss is zero
(i) The cost to plaintiff is same as benefit to some other un-named party
ii) People’s Express Airlines Inc. v. Consolodated Rail Corp – Railroad leaked chemical and had to evacuate the area
including People’s Express’ terminal. Court awarded economic damages for lost flights, lost bookings, etc.
(1) Rail Corp could have foreseen that their endangering the area and forcing evacuation would cause economic harm to
this nearby business (zone of danger)
(2) Because this is the only potential plaintiff, want to require damages from plaintiff to deter future negligence
b) Also, note the policy: provide a means for defendant to be able to predict, at least to some degree, the scope of liability it may
face
xxxiv
Defendant’s role in multi-defendant cases
o Must show a way to divide damages
o Otherwise both defendants are liable for 100% of damages
o If there are distinct injuries, the defendant may be able to prove which are the new damages they caused
o Tingey v. Christensen – Preexisting condition exacerbated by an injury caused by defendant. If the defendant is able
to disentangle the damages between the preexisting injury and the tort, jury may divide damages. Otherwise, thin-
skull plaintiff applies
o Browning v. Ringel – Preexisting injury, even if not manifest at the time of the accident, may be used to reduce
damages if defendant convinces the jury that the damages are divisible
o Concert of action – to avoid conspiracy of silence, hold all parties liable

xxxv
Rescuer and other special relationships may take on liability

i) Generally no duty to rescue (unless you caused the original harm)

(1) Yania v. Bigan – two mine owners (competitors) discuss their operation and taunt each other. Bigan challenges
Yania to jump into a mine full of water which he does, but can’t escape without assistance. Bigan refuses to assist
and Yania dies. No wrongful death suit allowed to stand because no duty to rescue – even if easy
(2) Restatement §322 imposes duty to rescue if cause initial injury
 ii) Promise to rescue – or history of protection may create reliance duty which may be breached and result in tort injury
(1) Erie RR v. Stewart – Stewart drives up to a RR crossing where Erie usually has a watchman to direct traffic.
Watchman is gone so Stewart drives and is struck by a train. Because he relied on the watchman, the RR is negligent
in abandoning their duty to maintain a watchman.
iii) Failed rescues may be grounds for liability
(1) If your attempt to rescue fails due to negligence, you may be liable to rescuee.
(2) By beginning the rescue, you preclude others from undertaking the rescue properly and thus deprive the rescuee the
opportunity to have a good rescue
iv) Duty to rescue from crime
(1) Normally, we are not required to protect against criminal behavior. However, if behavior is known risk and the
landlord/owner/other controlling individual negligently fails to avoid or prevent the risk, liability may be found
(a) Kline v. 1500 Mass. Ave Apartment Complex – Landlord knows of significant criminal behavior in the halls of
the apartment. Fails to lock doors, screen entry, or monitor hallways. When a resident is assaulted and robbed
outside her apartment, the landlord is liable because negligent in protecting complex.
v) In duty/special relationship cases, ask
(1) Who is in control (of the risky situation)?
(2) Is the harm foreseeable (as well as the platintiff)?
(3) Is the precaution feasible (use the Hand formula or at least examine ability to protect)
vi) Often, duty cases may be better addressed by a statute
(1) Statutes set the floor of precaution, not the ceiling
(2) Statutes provide a minimum baseline of protection/duty
vii) Psychologists
(1) In some cases, once a psychologist determines that someone is dangerous, they have a duty to warn others.
(a) Tarasoff v. Regents of U of Cal. – Deranged former lover tells psychologist at Cal he is going to kill Tarasoff.
Doctor suggests commitment, but hospital releases him. After release he indeed kills Tarasoff. Court finds Cal
liable for wrongful death because they did not warn Tarasoff.
(i) Difficult to balance warning with privacy
(ii) Need a specific threat against a particular person, otherwise simply commit dangerous individual
(2) Test for psychological experts
(a) Expertise
(i) Counselors are quite different from psychologists and psychiatrists
(ii) Relationship of physician and patient
1. More contact means better able to determine danger
(iii) Foreseeability
1. Would warning do any good?
(3) If little is known, can’t speculate that psychologist would have solved the problem
(a) Johnson v. United States – prisoner begins deteriorating. Fills out sick form seeking meeting with psychologist
which is not immediately scheduled. He hangs himself. Wrongful death finding overturned by appeals court
saying that meeting with psychologist for the only the second time in 6 months was unlikely to have indicated he
was in fact suicidal.

xxxvi
A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise
to a relationship of trust and confidence.
xxxvii
Don’t make a contributory negligence claim until after you have tried to show that you weren’t negligent.
 Always make both arguments – we’re not negligent, even if we are negligent, P is contributory negligent
 Much lower threshold for defendant victory in negating negligence than in proving contributory negligence
o Defendant makes this argument and must show all elements of a negligence claim
 Ask: “who is in the best position to avoid the injury?”
 If the defendant is, contributory negligence is unlikely.
 If plaintiff, likely a case of contributory negligence
o Defendant has burden of proof and must prove these issues: DBCD
o Typical arguments (same as regular negligence)
 Custom
 Statute
 Cost-benefit (reasonability)
 LeRoy Fibre Co. Flax stack near RR and is burned. Holmes’s dissent argues that contributory
negligence may be found by a jury when flax is stored “unreasonably” close
 Untaken precaution
 Mark v. Pacific Gas – A streetlight annoys residents of an apartment so they unscrew the bulb
from apartment window. One time a resident is electrocuted and dies. Appeals court sends back
for a jury determination of contributory negligence
o Contributory negligence is exculpatory in some states (Virginia is one)
xxxviii
Three areas contributory negligence doesn’t apply
 Safety statutes
o If D breaches a statute, contributory negligence may not apply
 Greater degree of blame exception
o Contributory negligence not a defense to intentional torts
o If defendant was grossly negligent, contributory negligence is not a defense
 Last clear chance – not used frequently
o If the defendant had the “last clear chance” of avoiding harm to P, contributory negligence does not apply
 Trespassing exceptions
 (might think trespassers are contributory negligent all the time, but not the case)
 Property owners have a duty to protect trespassers from reasonable risks of harm on the property (usually the hidden ones)
o Also, “attractive nuisances” are not eligible for contributory negligence

xxxix
Comparative Negligence
1. Basics:  negligence does not bar recovery, but it reduces it.
a. Pure or Modified Comparative Negligence
i. Pure: Π’s negligence is never a complete bar; applies regardless of how much more negligent the Π was
than the Δ.
ii. Modified: if Π is found to be as negligent as or more than the Δ, comparative negligence does not apply and
the Π’s contributory negligence is a complete bar to recovery.
iii. Problems for the jury to quantitatively assess the negligence of both parties.
b. Basis for Comparison: Lots of problems for jury in making the comparisons.
c. Assessment
i. Neither contributory nor comparative negligence is likely to be a systematically superior method of
deterring accidents.
ii. Appeal of comparative negligence to the ordinary individual’s sense of fairness is sufficiently great to
render this factor alone virtually dispositive on the issue.
2. Applications
a. Multiple s
i. Most courts prefer the view that a Π should be entitled to recover something unless she is principally
responsible for her own harm. E.g.  40% N, 1 35%N, 2 25%N.
b. Joint and Several Liability: 3 Approaches
i. Hold Δs jointly and severally liable for the amount of the judgment, even though the Π was also negligent
ii. Hold each Δ liable only for its own proportional share of the reduced judgment
iii. If each party including the Π is an injurer, then the injurers as a group should pay the injured party, and
should bear the risk that one of their number is insolvent (including the Π) (Abraham, most sensible
approach) Each injurer bears risk.
c. Effect on other Common Law Doctrines
i. GO OVER.
d. Strict Liability (Defenses in some jurisdictions and not in others.)
i. If the point of denying the defense of contributory negligence was that the Δ in the kinds of cases that are
subject to strict liability is the best bearer of the risk that the kinds of accidents in question will occur, then
that does not change with the enactment of comparative negligence.
ii. But, if contributory negligence was not a defense because it was viewed as excessively harsh, then a
comparative negligence defense to strict liability might make sense.
iii. Many courts conclude that regardless of whether it is conceptually coherent to employ comparative
negligence in products liability cases, it will be done b/c it is fair to do so.
e. Setoffs?
i. If neither party is insured, there ordinarily w/d be a setoff of the smaller award against the larger one, and
the net amount remaining w/d be awarded to party w/ larger judgment.
ii. But when both parties are insured, no setoff should be allowed; a major function of liability insurance is not
merely to protect injurers against liability, but also to assure victims a recovery from negligent parties who
cannot afford to pay judgments themselves; a setoff would further deprive victims of compensation, after
they have already been awarded only partial compensation in the first instance because of their negligence.

xl
Assumption of Risk (Abraham thinks this shouldn’t be called assumption of risk. 4 different concepts)
f. Express Assumption of Risk
i. Individual contracts in advance to waive right to a tort action against a potential injurer.
g. No Duty of Care Breached by 
i. Baseball game example. No duty to make the premises any safer than they already were. One of the reason
because it was evident to anyone that there was some risk associated with sitting there. Not really that the Π
“assumed the risk.” Δ is not asserting a defense, but rather that there is not cause of action and the Π has no
 prima facia case. Π assumed the risk because the Δ not negligent and has breached no duty. Sometimes referred
to as “primary” assumption of risk (not helpful).
h. A Subset of Contributory Negligence
i. Π’s conscious taking of an unreasonable risk, as opposed to just careless failure to recognize or appreciate a risk.
Ordinarily, only the conscious taking of an unreasonable risk is a defense.
ii. Secondary assumption of risk: a defense; based on the Π’s conduct in taking a risk; available as a way for Δ to
avoid liability even if proved negligent.
i. Primary or secondary assumption of risk
i. Primary assumption of risk – known to all so need not show that the defendant took precaution to protect
1. Defendant is not negligent
2. Plaintiff assumed the risk and any injury due to the known risk is his/her own fault
a. Assumption of risk requires experts to use their expert skill
b. Meistrich v. Casino Arena Attractions – Fall while ice skating. Fall is due to ice being
too slippery which only an expert would know. Expert staying on the ice is assuming
the risk
ii. Secondary assumption of risk – there are inherent risks to life, but the?? defendant must take precaution to
protect potential plaintiffs
1. Defendant is negligent (or must prove that she is not)
2. Plaintiff can only be contributory negligent here
3. Plaintiff consciously took an unreasonable risk
iii. Ask: Is plaintiff in a position where he knows of and can avoid injury?
1. Defendants are not required to protect against the risk that the plaintiff already knows about

iv.
j. Conscious, Reasonable Risk-Taking
i. Non-negligent conscious risk taking by the Π is not a defense.
ii. Of all the 4 types, assumption of risk more appropriately applies to this sort of thing; however, it has no legal
effect. Doesn’t matter in most cases. Π is in better position to decide whether to risk injury, even thought this is
not true in the vast majority of cases.
iii. Eckert v. Long Island R.R.: Π’s decedent was killed while rescuing a child from being struck by a train; jury
could find that this was not contributory negligence (assumption of risk) because the decedent’s behavior was
not unreasonable under the circumstances

xli
Punitive damages
ii) Punish
iii) Deter extremely blameworthy behavior
iv) Criteria
(1) Degree of reprehensibility of the act
(2) Proportion between the harm or potential harm resulting from the defendant’s act and the punitive damages awarded
(a) State Farm Insurance co. v. Campbell – Should be a single digit ratio
(3) Difference between the punitive damages and typical civil or criminal penalties for comparable cases
b) Wrongful Death and Survival Actions
i) Wrongful death
(1) Beneficiaries are the heirs
(2) Beneficiaries receive damages for the losses THEY SUFFER from the loss of the decedent
(a) If supported by decedent, wages may be appropriate
(b) Other emotional benefits of that person
(c) “Lost services”
ii) Survival Actions
(1) Pain and suffering of the decedent before death included in damages
(2) Economic damages (lost wages) are also usually calculated
c) Damages should be adjusted for inflation on front and back end, or not at all
i) O’Shea – have to take inflation into account on both ends of the calculation
d) Joint & Several liability
i) Comparative fault divides the damages among the defendant
(1) Background rule – join and several liability
(2) Joint and several liability with comparative fault is a modification
(3) Comparative fault alone is another modification

xlii
Principles of compensatory damages
ii) Single recovery
(1) Must include past and future loss in the claim for damages
(2) May only make one recovery
(a) If injury gets worse later, you can’t bring another suit for new damages
 (b) Must include probability of worsening in original damages calculation
iii) Future loss generally not compensated
(1) If there is no present loss, but simply a pretty clear weight of evidence that there would be injury (loss) in the future
from the negligence of D, recovery is typically denied
(a) Can obtain medical monitoring in this situation
(b) Otherwise unable to recover.
e) Main categories of damages
i) Special – need expert testimony to show
(1) Medical expenses
(2) Lost earnings
(3) Property damage
(4) Economic losses
ii) General – lawyer persuades the jury
(1) Pain and suffering
f) Medical Expenses
i) The value of the services is all that matters
(1) Recovery is limited to the reasonable value of medical services
g) Lost Earnings
i) Look at the earning capacity to determine damages
(1) Offsets for expenses to have this higher earning capacity
(2) Usually a probability of each year’s wage based on likelihood of still working
(3) Future earnings are annualized
h) Pain & Suffering
i) How do you determine pain and suffering?
(1) Tell the jury to put themselves in the role of the plaintiff
(2) Per Diem approach
(a) What is one minute living in this state worth?
(i) Multiply by remaining life
(3) Scheduled damages
ii) Must be aware of pain to obtain the damage award
(1) McDougald v. Garber – Brain damage results from surgery, appeals court refuses to grant pain and suffering because
no ability of the plaintiff to actually feel pain