TORTS --“Set of rules regarding compensation for personal injury, harm and property damage that one party causes another.”

I. Goals of Tort Law A. Compensation of Injured Victims B. Deterrence of Unsafe Activities C. Encouragement of Economic Growth and Progress D. Legal Administrative Effectiveness and Efficiency E. Fairness

II. Three Bases of Tort Liability

A. Intentional Torts B. Negligence—falling below the standard of care that puts others at undue risks of

harm C. Strict Liability—very narrow to recover without showing fault for unintentional

harm. i. responsibility is on causation without regard to defendant’s conduct being

at fault ii. three pockets of strict liability

1. harm by livestock or wild animals (trespassing of animals) 2. abnormally dangerous activities 3. product liability claims

III. Negligence— Restatement (2d) §282 --“any conduct which falls below the

standard established by law for protection of others against unreasonable risks of harm”, or “unreasonably risky conduct”

A. Prima Facie Negligence i. Duty

ii. Breach iii. Causation iv. Scope of Liability v. Damages

B. Risk—must evaluate both prongs, although fight is likely to be about reasonableness

i. reasonably foreseeable—reasonable person would see the risks 1. foreseeability arises out of knowledge (three types):

a. actual knowledge—knowledge that D possessed b. constructive knowledge—knowledge that D should have

known or had reason to know i. should know—a RPP would have seen the risks or

assumed their existence ii. reason to know—a RPP would have been able to

discern the risk or infer the risk ii. unreasonable conduct in light of risks—UTC, was action reasonable?

C. Reasonableness i. Balancing Risk versus Untaken Precaution

1. Carroll Towing (Hand’s Formula)—B vs PL where B is the burden and PL is the magnitude of risk, made up of the P-probability and L-injury inflicted

a. This approach is useful in cases involving economic loss but is not useful for physical injuries

2. Restatement §291—if risk is foreseeable and magnitude of risk outweighs the utility of conduct then it is unreasonable

3. Dobbs—if utility (not just $) of making it safer versus magnitude of risk (likelihood) and the gravity (amount) of risk

4. Economic—accident avoidance or prevention costs ($) versus accident or harm costs ($)

5. Vetri—untaken precautions (B) versus risk (PL) with emphasis on the untaken precautions to present safer alternative conduct that would not cost too much or impair overall utility of D’s activity

ii. Custom 1. normally the RPPUTC standard applies, but custom is a salient

circumstance. Can be used by either side to try and establish the standard.

2. can take on weightier factor in some jurisdictions and in some circumstances

Restatement (2d) §12

3. a practice becomes a custom when it rises to the level of industry standards, community standards, to protect from harm, is convenient, efficient, or economical

4. in medical malpractice cases the custom is the standard of care iii. Judicial Standards

1. established by judicial standard—Baltimore & Ohio RR v. Goodman—the holding applied to the specific fact pattern of the case. To apply it to other cases the analogy must be tight.

2. reason judicial standards are used is to promote efficiency so if same fact pattern (or simple, tightly analogous) is given then decision made as matter of law

iv. Statutory Standard of Conduct 1. can be established by legislature 2. can be adopted by courts

D. Standards Of Care—Restatement (2d) §285—lays out four ways of determining i. Established by Legislature—law speaks directly to the act committed—

often used in product safety standards ii. Adopted by Court from Legislature—Ferrell v. Baxter—several rules for

application 1. Plaintiff must be in class of people that statute was designed to

protect and harm suffered must be of type that statute was designed to prevent. (Vetri pp. 139)

2. Restatement (2d) §286— a. To protect a class of person which includes the one whose

interest is invaded b. To protect the particular interest which is invaded c. To protect that interest against the kind of harm which has

resulted d. To protect that interest against the particular hazard from

which the harm results 3. Restatement (2d) §288A—

a. An excused violation of a legislative enactment or an administrative regulation is not negligence.

b. Unless construed not to permit excuse, the violation is excused when

i. Violation is reasonable because of actor’s incapacity

ii. He neither knows or should know of occasion for compliance

iii. He is unable to comply after due diligence iv. He is confronted by an emergency v. Compliance would give rise to greater risk

Favored by P

Favored by D

4. Restatement (2d) §288B—

a. The unexcused violation of an enactment or regulation which is adopted by the court as defining the standard of care, is negligence in itself

b. The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligence

5. Effects of adoption of statute for procedural purposes a. strict—negligence per se (unexcused violations only)

i. negligence per se is NEVER used with a child—the policy is the incapacity of a child to conform to the standard of care (Bauman v. Crawford)

ii. some judges have argued against negligence per se arguing that reasonableness should be up to the jury to decide

b. presumption of negligence—rebuttable c. evidence of negligence—take it or leave it

6. Excuses for statutory violation reduces the negligence per se to evidence that is relevant for consideration. (Ferrell v. Baxter) minority rule shifts the burden of persuasion to the D, majority leaves it with P)

a. Incapacity b. no knowledge or occasion for compliance c. inability to comply after reasonable diligence d. emergency e. compliance involves a greater risk f. otherwise reasonable under the circumstances

7. Effect of compliance with a statute is evidence of due care but is not conclusive as to due care since sometimes reasonableness requires more than following a statute

iii. Established by Judicial Decision—Goodman—usually very narrow holdings that affect cases with a very similar fact pattern

iv. Applied by a judge or jury—usual application of the RPPUTC—this is the standard applied in medical malpractice suits

E. Reasonable Prudent Person Under the Circumstances (RPPUTC)—is an objective standard. Asks what the reasonable conduct would have been. There are several different categories that introduce subjectivity into standard.

i. Examples of Subjectivity 1. child—reasonable prudent child of similar age, intelligence,

maturity a. exceptions to this include:

1. inherently dangerous activities—Robinson v. Lindsay—this is majority rule

2. activity normally reserved for adults—Restatement (2d) §283A

Favored by P

b. child versus insane person—policy underlying the child standard is for an inability to comply due to a diminished capacity of a child (rule of 7’s). Policy says that someone has to pay for injuries to P so insane doesn’t get you off the hook. **possible exception for sudden mental illness

2. elderly people—a circumstantial factor only—unless infirmed then apply physical incapacity standard

3. blind person—reasonable prudent blind person 4. mental deficiency—RPP standard, caretaker is responsible 5. insane person—majority is RPP standard, Wisconsin, Canada

make exceptions 6. intoxicated people—no exceptions made 7. superior skill—SPLIT—some hold to a higher standard, others

have it as circumstantial evidence (Restatement 2d §289(b)) 8. common carriers—this is a salient circumstance, RPP

ii. Excuses for deviation from RPPUTC 1. emergency—SPLIT—some courts allow emergency doctrine

others leave to jury to assume emergency. D has to convince jury that emergency was:

a. sudden b. D was not responsible for emergency c. D acted reasonably UTC.

2. sudden physical illness—sometimes sudden onset of physical illness is a valid excuse—Hammontree v. Jenner

3. diminished capacity— a. for D—maybe only for sudden onset—Breunig v.

American Family Insurance (WI) is minority. For majority see Bashi v. Wodarz

b. for P—contributory negligence—Cooper v. County of Florence

c. insanity—sudden onset, difficult to quantify d. mental disability—permanent condition—foreknowledge

of condition

IV. Proof of Negligence A. Direct Evidence—testimony that is directly observed and that applies directly to

issue trying to be resolved in the case B. Circumstantial Evidence—no direct facts or testimony relating to the issues in the

case i. Slip and Fall—often uses circumstantial to avoid directed verdict. It

provides an inference of negligence (specific) and presence of constructive knowledge of D—Clark v. Kmart

ii. Mode of Operation—minority rule—used in cases with open food displays. Theory is that allowing self service the store assumes responsibility of behavior of customers

V. Professional Malpractice A. Two Components:

i. Medical performance negligence ii. Failure to provide informed consent—not to be tested

B. Standard of Care for Medical Performance—usually established by custom i. Locality rules for getting relevant custom

1. strict locality—custom in same community 2. modified locality—custom in similarly sized community 3. national standard—custom of physicians across country

ii. Evidentiary weight of Custom—is conclusive for establishing standard of care, any deviation is negligence

1. following custom is not necessarily not negligence if custom is below the reasonable standard of care.

iii. Sources of Custom—relevant community or national standard C. Experts in Medical Malpractice—usually required with few exceptions for

“common sense” injuries. i. Roles for expert testimony

1. establishes the customary standard of care for physician 2. gives opinion on the issue of breach

For GP, all three rules could apply, for specialists only national

VI. Duty

A. General Duty—the general duty is a presumptive duty of reasonable care for foreseeable risks arising from such conduct unless displaced by a limited duty rule. Macpherson v. Buick Motor Co. or Rudolph v. Arizona BASS Federation

i. Restatement (2d) §302(a)—in general, anyone who does an affirmative act is under a duty to others to exercise care of a reasonable man to protect them against unreasonable harm to them arising out of the act (for misfeasance and pseudo-nonfeasance)

B. Limited Duty—limited duty arises under specific fact patterns. There are several policy reasons for imposing a limited duty:

i. Allocation of loss—who will bear the loss if a duty is created or denied? ii. Fairness—was there wrongful conduct, should it be remedied? What does

fairness/justice require? iii. Deterrence of Accident Avoidance—does creation/denial of duty enhance

deterrence of conduct that involves risks of accidents? iv. Economic Considerations—will the creation of a duty impose undue

economic burden on class of potential defendants? v. Administrative Concerns—what impact will creation/denial of duty have

on court system? Can workable rules be implemented? vi. Legislative Concerns—are there safety statutes/regulations that already

exist? Will creation of duty interfere with legislative scheme? C. Premises Liability—duty is dependent upon the entrant status on the land in cases

about defects on the land that give rise to injury—American Industries Life Insurance Co. v. Ruvalcaba. The categories are:

i. Invitee—enters with owner’s permission and for the mutual benefit of both owner and guest.

1. The duty owed is not a limited duty—RPPUTC—duty to protect against unreasonable risks of harm which owner knows or should discover.

2. There is a SPLIT in the authority regarding business invitees: a. Majority rule—people on premises as long as open to

public and presence is consistent with public purpose—here business visitors and public invitees are equal in the duty owed being a RPPUTC

b. Texas rule—is more restrictive in that the public invitee must have been invited on premises for purpose of buying goods.

3. There is a SPLIT with regard to ‘open and obvious’ conditions on the land for invitees:

a. Defendant is not liable for open and obvious dangers. b. When danger is obvious, landowner is not liable UNLESS

landowner should anticipate harm in spite of knowledge/openness.

ii. Licensee—enters with owner's consent for guest's convenience or for business with someone other than the owner (social guest)

1. The duty owed is limited—not to injure willfully, wantonly, or through gross negligence AND when owner knows (actual) of danger to warn or make safe.

2. There is an exception for concealed traps on premises that are known to landowner but not discoverable to licensee. The standard of care becomes RPPUTC in these circumstances.

iii. Trespasser—enters without lawful authority, permission, or invitation. 1. The duty is also limited—not to injure willfully, wantonly, or

through gross negligence 2. There is an exception for frequent trespassers where the duty of

care is elevated to the RPPUTC. iv. Child Trespassers—have a special set of rules because they are children.

These rules only apply to artificial conditions, not natural or obvious ones (water, fire, moving vehicles). The conditions for landowner liability to trespassing children are:

1. the place is where a condition exists and the landowner knows or has reason to know that a child will trespass AND

2. the condition is one that the landowner knows or should know and realizes or should realize that will involve unreasonable risks of death or serious bodily harm AND

3. children, because of their youth, do not discover condition or realize the risk involved AND

4. utility of landowner of maintaining condition and eliminating danger are slight compared to the risk to children involved. AND

5. the landowner fails to exercise reasonable care or otherwise protect.

v. There is a SPLIT with regard to how the entrant status is applied by the court:

1. Trichotomy rule—duties owed are wholly dependent upon the status of the victim with regard to landowner.—minority rule

2. 2/3 abolition rule—Invitee and licensee are treated the same—with RPPUTC duty whereas trespasser still has a limited duty.—adopted in 13 jurisdictions, including NC (Nelson v. Freedland)

3. Complete abolition or California rule (Rowland v. Christian) —here the standard for everyone is the RPPUTC. The entrant status is relevant to determining foreseeability of harm but is not determinative.—adopted in 14 jurisdictions

D. Failure to Act—generally, defendant has no liability for failing to act (nonfeasance) unless a special duty is established or there is an assumption of duty.

i. Definitions: 1. Misfeasance—risk of harm arose out of one’s conduct—duty is to

exercise due care not to create risk of harm 2. Nonfeasance—risks of harm were not created by actor—no duty to

exercise reasonable care to eliminate risks not created by actor

Restatement (2d) 339

3. Psuedo-nonfeasance—here is really misfeasance because defendant actually created risk but failed in acting to prevent harm to plaintiff.

4. Distinction between misfeasance and nonfeasance is the participation of defendant in the creation of risk. A failure to act can be misfeasance (this is the pseudo-nonfeasance situation above)

ii. Special Relationships—traditional special relationships that gave rise to duty include:

1. innkeepers/guests 2. common carriers/passengers 3. landowners/entrants 4. sailor/passenger 5. employers/employees 6. jailers/prisioners 7. co-adventurers Farwell v. Keaton

iii. Arguments supporting no duty to act: 1. duty to assist would interfere with liberty of individuals to do what

they choose 2. creation of duty would contradict basic principles of causation 3. imposition of duty undercuts and demeans moral values by

depriving a person of making a purely moral choice to assist 4. creation of duty would create problems with process and

administration of courts iv. Exceptions to no duty to act:

1. traditional special relationships 2. duty for relationships of dependence/mutual dependence

a. Restatement (2d) 314A(b) 3. required custody relationships or voluntary ones that deprive other

of normal protections 4. voluntary assumption to render aid or protect

a. Restatement (2d) 323(c)—if because of assumption the victim is worse off or has foregone other help then duty to exercise care to not unreasonably terminate aid

5. taking charge of helpless plaintiff a. Restatement (2d) 324(g)—if have begun to aid victim then

cannot place in worse situation by placing in same peril or creating a new one

6. participation in non-negligent prior conduct that creates risk/injury 7. induction of detrimental reliance on gratuitous promise 8. negligent/intentional prevention of aid by others 9. statutory obligations

a. VT, RI, MN, HI, and WI make it a crime to fail to reasonably assist a person in peril. This applies if the potential rescuer has actual knowledge of peril and can

assist without harm to himself/others. VT carries civil penalties but other states may adopt statute.

E. Duty to Control—duty to control arises in situations where there is a special relationships exist. There is no general duty to control.

i. Special Relationships—must exist between the potentially controlling party and the bad actor OR the controlling party and the victim. This limited duty was established in the landmark case Tarasoff v. Regents of University of California. The status of the victim is important for recovery:

1. readily identifiable victims—those that are specifically named—Tarasoff-like plaintiffs—most favorable to plaintiff

2. probable victims—not a named victim but highly probable 3. foreseeable victims—less than probable victims, also not named 4. member of general public—generally no duty is held—best for the

defendant. ii. Policy reasons for limited duty—public interest in some circumstances

takes precedence over the confidential relationship of doctor/patient, jailor/prisioner

iii. Duty to warn (special recommendation situation)—duty is triggered by the misrepresentation of facts that leads to a substantial, foreseeable risk of physical injury to third person Randi W. v. Murdoc Unified School Dist.

F. Duty to Provide Reasonable Security—in these situations there is a heightened standard for breach or a corresponding narrow duty rule. The heightened breach requirement makes it difficult to establish that the harm was foreseeable. There is also some duty relationship attached to the entrant status of the victim.

i. Foreseeable Criminal Acts: SPLIT in the tests 1. Specific Harm (SH)—no duty unless defendant has knowledge act

was about to occur (hard for plaintiff to establish) 2. Prior similar incidents (PSI)—must relate to other similar acts on

the premises (difficult for plaintiff to establish and no remedy to first incidents)

3. Totality of Circumstances (TOC)—factors in prior similar incidents but they are not determinative (majority approach)

4. Balancing Test (BT)—degree of foreseeability of harm vs. duty burden imposed. (tests outlined in Delta Tau Delta)

ii. Landowner responsibilities—duty to protect invitees from foreseeable criminal acts (special relationships apply) and duty on commercial property owners to protect those on their property for business purposes.

G. Duty of Alcohol Providers—generally there is no duty to the intoxicated party (except a minor).

i. Duties of Social Hosts—generally no duty of social hosts to injured third parties—exception was Kelly v. Falin and was later limited by statute.

ii. Duties of commercial providers—governed by Dram Shop Laws—that establish criminal penalties for serving alcohol to minors or obviously intoxicate persons, may also establish civil liability. If adopt then it becomes the standard of care (Restatement (2d) §285).

Dunkle = general public Cansler = readily identifiable

Favored by Defendant

Favored by Plaintiff

H. Public Entity Duty to Protect Citizens—duty is to all citizens and not a specific group—stated otherwise “a duty to all is a duty to none”. There must be a special relationship to trigger a duty to act.

i. Special Relationship Requirements—Cuffy factors 1. assumption by municipality of affirmative duty to act on behalf of

party injured 2. knowledge on part of municipality’s agent that inaction could lead

to harm 3. some form of direct contact between municipalities agent and the

injured party 4. party’s justifiable reliance on municipality’s affirmative

undertaking ii. Policy Arguments

1. Limited duty: a separation of powers argument—not up to judiciary to dictate the allocation of resources of a municipality in terms of police protection, sovereign immunity

2. Kircher dissents—inaction is the same as misfeasance (thus negligent)—affirmative action was taken towards witnesses and not followed through with. Also, rigid rules prevented a worthy plaintiff from recovery. She contacted police through surrogates and their detrimental reliance caused her harm.

3. Minority argument—focus on whether duty extends to plaintiff as a member of a particular class (Kircher’s victim of ongoing crime)

I. Emotional Harm—claims for stand alone emotional harm were generally disfavored because: (1) open ended rules could lead to liability disproportionate to fault; (2) lead to numerous claims and burdensome liability; (3) limitations are necessary to preclude trivial claims

i. Ways to inflict emotional harm: 1. negligent infliction of emotional harm 2. intentional infliction of emotional harm (intent or recklessness) 3. parasitic damages—primary physical injury

ii. Types of emotional harm victims: 1. direct victims—some special relationship with tortfeasor and

tortfeasor has assumed duty to victim a. Conditions for direct victim recovery

i. Special relationship ii. Assumption of duty

iii. Duty as a matter of law b. Scenarios for direct victim—

i. Mishandling remains of family member ii. Misinforming relative about death/illness

iii. Theft of animal??

2. bystander victims—physical harm is to a third party and victim witnesses the harm

a. Conditions for bystander victim recovery: i. Thing factors: (CA rule)

1. plaintiff is closely related to injury victim 2. plaintiff is present at time of injury

producing event and is aware of injury 3. plaintiff suffers serious emotional distress

that is beyond casual bystander and still within normal range

ii. Clohessy factors: (CT rule) 1. plaintiff must be closely related to victim 2. emotional harm caused by contemporaneous

sensory perception of injury OR arrival at undisturbed scene soon after

3. injury to victim must be substantial 4. emotional distress must be serious

iii. Relational Requirement—SPLIT 1. Elden v. Sheldon (CA) co-habitation of

heterosexuals doesn’t count—must be married.

2. Dunphy v. Gregor (NJ) allows co-habitation relationships when stable and permanent in nature (heterosexuals in case but possibly extend to homosexuals)

a. Should be no bright line distinction between married and unmarried but should depend on ‘significance and stability’ of realtionship

3. Coon v. Joseph (CA) no recovery for lifetime homosexual partners

iii. Rules for Emotional Distress Recovery—SPLIT 1. Texas Rule—no recovery for independent emotional distress—rule

may reflect gender bias against women—Boyles v. Kerr 2. Impact Rule—plaintiff must have suffered some physical injury—

required in Oregon 3. Zone of Danger Rule—plaintiff must have been in zone of danger

of being physically injured 4. Bystander Emotional Harm—Thing/Clohessy factors 5. Direct Victim 6. General Negligence—Camper v. Minor—in TN, MT, HI—

Plaintiff must establish prima facie case for negligence AND have expert testimony as to severe emotional distress

a. TN only allows general negligence for direct; MT, HI allows for bystander

VII. Common Law A. Law of Leeways—doctrine that an appellate court is free to make changes in law

as a need and circumstance dictates to keep law consistent with policy goals and current societal norms. If a rule is no longer reasonable then it can be overturned by judges—“the rule follows where reason leads; where the reason stops, there stops the rule”.

i. Stare Decisis—stand by a decision. Doctrine promotes efficiency in the courts and allows litigants to know what to expect. Stare Decisis cuts against overruling precedent.

ii. Precedent—prior decisions by the court that are similar or on point to the issue at hand. Can be interpreted either broadly or narrowly depending on the situation.

B. Overruling Precedent i. For Overruling Precedent

1. earlier decision incorrect when decided 2. earlier decision currently inappropriate because of changed

conditions in society 3. earlier decision is currently incorrect because exceptions have

overwhelmed the rule 4. reliance on earlier decision is unjustified in light of evolving

exceptions 5. statutes or regulations important is background to earlier decision

have been amended in some essential way ii. Against Overruling Precedent

1. considerable value and efficiency resulting from adherence to established precedents (stare decisis, evenhandedness, prevents arbitrariness, reliable)

2. symbol of government of laws and not of mortals is potent force in society’s respect for the law

iii. Conditions giving rise to overruling precedent 1. court is confident that precedent is so unsound that importance of

abolition outweighs disadvantages in overruling 2. overruling can be done without injury to someone who justifiably

relied on precedent

VIII. Cause In Fact—the establishment of some connection between the negligent act/omission of defendant and injury or damage to the plaintiff. Must be a ‘reasonable connection’.

A. Types of Causation Analysis—these rules/concepts are context specific. The analysis will vary according to the type of case (single cause, multiple cause, competing explanations, alternative liability).

i. “But For Causation”—If the injury would NOT have occurred if defendant had not been negligent then it IS the ‘but for’ cause. Likewise, if the injury would have occurred even without defendant’s negligence then it is NOT the ‘but for’ cause (this is the counterfactual inquiry).

1. The contextual limitation of this type of analysis is that it works well for single tortfeasors in simple causation situations but fails in situations where there are multiple tortfeasors or complex causation analysis.

2. Sowles v. Moore and New York Central RR Co. v. Grimstad—both examples of but for analysis. The defendant’s negligent act must be BOTH necessary and sufficient for the injury.

ii. Substantial Factor Causation—inquiry is whether defendant’s negligent conduct was a substantial factor in causing plaintiff’s injury (necessary but not sufficient)?

1. In cases where there are multiple tortfeasors or multiple causes courts reject the ‘but for’ analysis and use the substantial factor analysis. Other courts throw ‘but for’ out altogether and only use substantial factor (Mitchell v. Gonzales). Reason is that it is easier for juries to understand and apply.

2. Sufficiency of Defendant’s conduct as substantial factor—is usually a jury question. Are asked to compare to a reasonable person. Would the defendant’s negligent act have an effect that produced injury to plaintiff that would lead a RPP to consider it a cause.

a. Danger to Plaintiff when they overstate any given defendant’s contribution to the cause is that the remaining defendant’s contribution may not be considered significant and they may not recover against them. This is sort of like the argument in Smith v. J.C. Penney Co., Inc.

3. Fire cases—substantial factor analysis is used in fire cases where a negligent cause merges with an innocent cause to produce injury. There is a SPLIT in the authority:

a. Jury question on causation when negligently started fire merges with a non-negligently started fire and either one could have damaged plaintiff’s property—Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co.—Minnesota case.

b. No finding of causation against defendant when the second fire had no known origin but if both were carelessly started

then allowed finding of causation—Cook v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co.—Wisconsin case.

iii. Legal Cause—the conflation of cause in fact and proximate cause into one concept.

1. Restatement (2d) §431—The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

B. Proving Causation—in trying to prove causation it is important to isolate the scope of risks created by the defendant’s conduct in order to show that the type of harm suffered is normally associated with the negligent conduct of the defendant. POLICY—enough that wrongdoing enhanced the chance of accident, that it increased risk in some appreciable manner.

i. Cumulative proof of defendant’s negligence—to show causation must bring negligence home to defendant and show that their negligent conduct is the most probable cause of the harm.

1. Tendency of the Evidence—where the negligence of defendant greatly multiplies the chances of accident to plaintiff and is of a character leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between negligence and injury. (Ingersoll v. Liberty Bank of Buffalo and Reynolds v. Texas and Pac. Ry)

ii. Alternative Causes—when various possibilities exist for plaintiff’s injury and are presented by defendant, plaintiff will argue:

1. defendant’s negligence increased the likelihood of the injury from the accident.

2. negligent conduct of defendant’s is type would ordinarily associate with this type of injury (scope).

3. in light of factors 1 and 2 (which constitute legal cause), we can reasonably infer causation being tied to defendant’s negligence

4. under these circumstances, mere possibilities of other causes do not eliminate the causal link between defendant’s negligence and injury

5. POLICY—the rule violated by defendant was designed to protect those in the plaintiff’s position (Reynolds v. Texas and Pac. Ry)

iii. Untaken Precautions—for causation analysis (as opposed to the breach analysis) plaintiff must show concretely that the untaken precautions would have altered the outcome. (Phillips v. Perils of Pauline Food Production, Inc. and Zuchowicz v. United States for positive outcomes; Nola M. v. University of Southern California and McCarty v. Pheasant Run for negative outcomes)

1. Burden Shifts to Defendant—Haft v. Lone Pine Hotel—father and son drowned in hotel pool. Burden was shifted to defendant to show that having a lifeguard would not have prevented the

accident. This is only fair to the plaintiff who cannot establish that a lifeguard would have made a difference since they didn’t have one.

C. Proving Who Caused Harm—sometimes there are cases where the wrong-doer is unknown. There are various methods for dealing with cause in fact in these situations.

i. Alternative Liability—limited factual situations where two (or more) defendants acted negligently at the same time to cause injury to the plaintiff. It is unknown who caused the injury.

1. Summers v. Tice—critical elements must be met to benefit from this holding:

a. Each defendant must have been negligent b. The harm must have been caused by only one defendant c. There must be relatively concurrent actions by each

defendant during the relevant time frame d. There must be potential of similar harm by each e. Plaintiff must be unable to show which defendant caused

the harm f. The responsible party must be in court g. Defendants must have better access to information h. Must be some sort of relationship among the defendants

2. If plaintiff can show all critical elements then the burden is shifted to the various defendants to show that they were not responsible. If they cannot exculpate themselves then they are held jointly and severally liable for plaintiff’s harm.

a. Policy is unfair to place such a heavy burden on an innocent plaintiff to determine which bad actor caused harm, to deter bad actors, to encourage the other defendants to expose responsible party. (compare to Ybarra).

3. Where alternative liability doesn’t work—cannot show that all defendants were in fact negligent but just can’t tell which one was responsible—Barron v. Martin-Marietta Corp.

ii. Market Share Liability—courts developed concept for situations involving many defendants where alternative liability won’t work. The policy reasons behind it are justice, fairness, administrative feasibility, cost of injury should be borne by wrongdoers rather than innocent victims. There are various formulations:

1. California—Sindell v. Abbott Labs, Brown v. Superior Court a. Joinder of D’s—substantial share but not all required.

National market determines each D’s share. b. Burden of proof—any D that cannot prove innocence is

liable for share c. Joint/Several Liability—liability limited to each D’s share

(several only) so less than 100% recovery.

Not part of Summers v. Tice and not always necessary

2. New York—Hymowitz v. Eli Lilly a. Joinder of D’s—not all before court, national market b. Burden of Proof—if did not market for pregnancy then out,

otherwise no exculpation c. Joint/Several—several only, share of only those before

court, less than 100% recovery 3. Washington—Martin v. Abbott Labs

a. Joinder of D’s—Only D’s before court, no market share calculated

b. Burden of Proof—D’s can exculpate themselves by showing that they did not injure P

c. Joint/Several—unexculpated D’s liable for shares divided equally to give full 100% recovery, jointly liable

4. Wisconsin—Collins v. Eli Lilly a. Joinder of D’s—D’s before court, no determination of

market share b. Burden of Proof—D’s can exculpate by showing did not

injure c. Joint/Several—liable in proportion to amount of risk

created, several only. D. Vicarious Liability—one party is liable for the negligence of another party by

reason of some relationship between the parties. The relational contexts giving rise to vicarious liability are: employer/employee, partnerships, independent contractors, fictional agency, franchises, and joint ventures.

i. Rationales for Vicarious Liability— 1. accidents are reduced if employers are liable 2. desirable to spread costs of accidents to community 3. employers can control the conduct of employers 4. since employees work is for employer’s benefit it is only fair that

they are liable 5. inevitable accident losses of a business should be considered as

expenses of the business 6. compensation to victims is more sure because employers are more

likely to be able to pay or purchase insurance for employees ii. Respondeat Superior—employer is liable for the torts of employee as

though the employer was original tortfeasor IF employee committed tort within the scope of employment.

1. Reason—negligence of employee is imputed to employer 2. Joint and several liability—employer can recover indemnification

from employee 3. Limit of doctrine—employee must have been acting within the

scope of employment—major factual dispute in these cases.

4. Scope of Employment Rules— a. Commuting to work—if accident happened b/c employee

was doing something for work then within scope (Cardozo test).

b. Frolic and Detour—frolic is pursuit of employee’s personal business; detour is employee’s deviation for personal reasons that is sufficiently related. Frolic is outside scope, detour brings back into scope

c. Dual Purpose Rule—like detour part of above rule—is within scope

d. Emergency Employee Rule—on own time but responding to emergency of company—must be imminent and grave danger.

5. Factors in measuring scope—time, place, purpose of conduct, extent of deviation from authorized methods, employer’s ability to foresee departure

6. Exception—independent contractors—distinguishing from employee—

a. Actual control of activities b. Right to control activities c. Kind of occupation d. Actor engaged in distinct business or profession e. Skill required f. Custom regarding supervision g. Decision maker on details of work h. Supplier of place, materials, equipment i. Terms of work j. Method of payment

7. Non Delegable Duties—duties of employer that cannot be delegated to an independent contractor—the duties are so important or risks so high that no reason to shift burden away from employer. Examples—

a. Duties imposed by statute or contract b. Duty of common carriers to passengers c. Keep city streets in repair d. Keep premises safe for commercial purposes e. Landlord maintain common areas

8. Inherently Dangerous Activities—activities for which the risk of injury is high so cannot hold contractor exclusively liable. Examples—

a. Construction of large buildings b. Maintenance of utility wires c. Crop dusting d. Demolition of buildings e. Building of dams

Look at factors and see how cut for or against employer/employee relationship

IX. Scope of Liability (Proximate Cause)—problem in these cases is whether the

defendant’s liability should be cut off even though the defendant’s conduct was both negligent and a factual cause of the plaintiff’s injury. Is defendant’s conduct sufficiently related to plaintiff’s injury?

A. Testing for Scope of Liability— i. Are there unforeseeable consequences? (Polemis, Wagon Mound)

ii. Are there unforeseeable plaintiffs? (Palsgraf) iii. Are there intervening forces? (McClenahan)

B. Direct Causation—directly traceable consequences without unforeseeable intervention, no regard for foreseeability of damages or manner of harm. Polemis—is now a MINORITY rule.

i. There is a significant exception to the directness test accepted by the courts where the harm is indirect but foreseeable. If the intervening act was foreseeable then it does not relieve the original tortfeasor from liability.

C. Foresight of Consequences—the test of reasonable foresight is a criterion for breach of duty and scope of liability. These two concepts (breach of duty/scope of liability) are not completely overlapping; foreseeability for scope of liability is much broader than for breach of duty. Wagon Mound

D. Foresight of Plaintiff—defendant’s scope of liability is confined to cases where the person harmed is within the general class of persons threatened by the negligent act. Palsgraf

i. Cardozo’s no duty argument— 1. the type of harm was not foreseeable (property v. bodily) 2. not foreseeable risk to anyone but package holder 3. right to suit is not derivative but must be original (couldn’t sue for

negligence to handling of package) 4. was outside of the range of foreseeable danger

ii. Andrew’s dissent— 1. orbit of danger is extended to all persons who’s harm was a direct

result of negligent act 2. limits role of foreseeability; argues that person who is negligent to

any class of persons is negligent to all persons harmed by act iii. Two aspects of foresight at scope of liability—

1. plaintiff must be within general class of persons that one may reasonably anticipate would be affected by defendant's conduct.

2. the general type of harm suffered must be within general class of harms that one may reasonably anticipate might result from defendant's conduct.

E. Superseding Forces and Causes—intervening causes are those that are unforeseeable, or independent of the original risk causing conduct or are extraordinary. Not all instances of intervening causes are superseding causes. Only superseding causes cut off liability. Superseding causes are a jury question.

i. Restatement (2d) §435(1)—to carry burden, plaintiff must generally show that defendant’s negligence was a substantial cause of events. Plaintiff

need not demonstrate that the precise manner in which the accident happened, or the extent of injuries, was foreseeable.

ii. McClenahan—illustrates a SPLIT in how courts treat keys left in car— 1. No liability for persons leaving keys in car that was later stolen for

reasons—(best for defendant) a. Owner owes no duty b. Theft and subsequent negligence was not foreseeable c. Even if negligent, actions were not cause because of

intervening, independent actions of thief 2. Some courts reject the actions of thief as automatic superseding

cause (best for plaintiff) 3. Some courts allow liability under certain circumstances when

owner did something to encourage theft. (fact dependent) iii. Three pronged test for scope of liability—

1. Defendant’s conduct was substantial factor in bringing about harm 2. There is no rule or policy that would relieve defendant from

liability 3. Harm giving rise to action could have been reasonably foreseen or

anticipated iv. The exact reason for the intervening cause need not be foreseeable, only

the general consequence of harm (Derdiarian). Independent act is superseding if the harm is different than the type that would be expected given the defendant’s negligence.

F. Restatement (2d) §435(2)—defendant is not liable for consequences which, looking backward after the event with full knowledge of all that occurred, would appear to be ‘highly extraordinary’.—very few courts have been willing to adopt this approach.

G. Practical Politics of Judge Andrews—because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. It is not logic, but practical politics. (from Palsgraf dissent)—Defendant argues that liability should be cut off before their act.

H. Shifting Responsibility—Intervening v. Superseding causes. Was the intervening act so gross that it shifts the responsibility from the original tortfeasor to the intervening tortfeasor—McLaughlin—heating blocks case—shifting responsibility worked; Bigbee—telephone booth case—shifting responsibility did not work.

i. Factors— 1. Culpability of intervenor—intentional, criminal, reckless,

negligent, innocent 2. Competence and reliability of person upon whom reliance is

placed 3. Intervenor’s understanding of facts of situation 4. Seriousness of danger 5. Number of persons likely to be at risk of danger 6. Length of time elapsed between conduct of parties 7. Likelihood that proper care will or will not be used 8. Ease with which each of the parties can take precautions

I. Other Proximate Cause Cases— i. Marshall v. Nugent—passenger of disabled vehicle struck while trying to

warn oncoming traffic—claim against first negligent driver ii. Gorris v. Scott—custom of penning sheep to avoid disease, sheep

drowned in storm b/c not penned up—claim against boat operator iii. Bak v. Burlington Northern, Inc—plaintiff died from OD on painkillers

from falling down stairs—jury question on scope iv. Ventricelli v. Kinney System Rent A Car, Inc.—plaintiff rented car and

trunk flew open while driving, stopped to fix was hit by negligent driver—not type of harm foreseeable from defective trunk latch

v. Firman v. Sacia—3 year old injured in car accident, grew up and shot plaintiff—held defendant not liable

vi. Dahlstrom v. Shrum—pedestrian hit by flying body that was thrown by car. Judgment for defendant

vii. McGuire v. Lloyd—driver broke down but failed to pull off road, driver of car behind who had stopped was killed when rear ended by truck—original driver not liable b/c superseding cause

viii. Rikstad v. Holmberg—wrongful death, decedent killed while sleeping in tall grass when car drove through field—jury question on scope

ix. No recovery for person injured in car accident (left with limp) who could not escape mugging later on.

x. Landowner placed rat poison all around at request of tenant, poison explodes, injuring cook on premises—no recovery against landowner.

J. Advocacy for Proximate Cause—the fight is likely to occur when the consequences are neither typical nor freakish—the unusual details will be arguably significant—if significant then consequences are unforeseeable, if insignificant then consequences are foreseeable.

i. Plaintiff’s framing of Argument—try to persuade that the unusual aspects of case are insignificant details

ii. Defendant’s framing of Argument—try to convince that freakish details are a prominent and significant part of the case

K. Exceptions to Foresight— i. Eggshell Plaintiff/Medical Complications—exception to foreseeability of

consequences test found in Wagon Mound. Here the defendant takes the plaintiff as they find them.

1. Cases— a. Association of Retarded Citizens-Volusa v. Fletcher—boy

with seizures nearly drowns in pool then develops respiratory condition that leads to death

b. Pace v. Ohio Department of Transportation—man hits finger in accident but has severe consequences because of pre-existing medical conditions.

i. Avoidable Consequences Rule—if after injury plaintiff fails to mitigate damages then can reduce award—does not defeat liability.

c. Steinhauser v. Hertz—unexpected harm was psychological (schizophrenia) did accident cause or merely aggravate.

d. Bartolone v. Jeckovich—after accident plaintiff has delusions that body is falling apart—qualifies under eggshell.

ii. Rescuer Rule—plaintiff is injured rescuing someone who was injured as result of defendant’s negligence. The intervention is foreseeable so the harm to plaintiff is inside scope.

iii. Criminal Conduct—third party criminal activity typically severs chain of causation, EXCEPT when activity was foreseeable

iv. Suicide—if defendant’s negligence leads to suicide because of irresistible impulse then not superseding cause. There is a SPLIT as to whether there can be intervening time between act and suicide.

L. Analyzing Scope of Liability— i. Existing exceptions to foresight

ii. Shifting Responsibility iii. Policy iv. Foresight analysis—unforeseeable consequences, unforeseeable plaintiffs,

superseding causes?

X. Damages—what legally recognized losses has plaintiff incurred to date and what

losses will be incurred in the future—what is the HARM? A. Three Types of Damages

i. Compensatory—common in negligence cases ii. Nominal—no actual harm yet but trying to protect a right (trespass action

to break adverse possessor’s time) iii. Punitive—only for recklessness and intentional torts

B. Pure economic damages—economic loss that does not flow from the invasion of a legally protected interest so no cause of action.

C. Two concerns for damages— i. Are certain types of damages appropriate?

ii. Is the damage award excessive? D. Compensatory Damages—

i. Pecuniary damages—those that can be easily calculated b/c are loss of money. Can be past/future earning losses or past/future medical costs.

ii. Non-pecuniary damages—more difficult to quantify. Includes— 1. pain/suffering 2. loss of convenience 3. physical impairment 4. disfigurement 5. loss of consortium 6. loss of enjoyment of life

iii. Compensatory Damages as a Trojan Horse—because of cap to punitive damages or because not available (negligence action) juries will often award huge non-pecuniary damage awards to punish defendants. Good lawyers will advocate for large compensatory awards since they are not subject to income taxes.

iv. Pain and Suffering—recovery often requires the testimony of medical experts to speak to sensation (pain) and mood (suffering) of victim. Victim and relatives or co-workers will also often testify.

1. Pain and Suffering—requires that the victim have been conscious before death—no recovery if in coma—Williams v. City of New York

2. Loss of Enjoyment of Life—sometimes considered as a subset of pain and suffering, sometimes separate, injury must be permanent—SPLIT as to the requirements—Eyoma v. Falco

a. Refuse any recovery for loss of enjoyment of life b. Loss of enjoyment is factored into the general damage

award for pain and suffering— i. Consciousness is immaterial

ii. Consciousness is required c. Allow separate and distinct claim for loss of enjoyment of

life.

3. Actions by victims family— a. Survival actions—beneficiary is estate, sue for any

damages victim would have had if living b. Wrongful death—beneficiary of deceased, sue for lost

earning power, husband, wife, child, usually testimony from economics expert as to earning potential.

4. Sherrod—argued in wrongful death action that hedonic damages (loss of enjoyment) are separate from pain and suffering—MINORITY

5. Contingency fees—attorneys that take cases on contingency basis usually take their fees from pain/suffering awards and collateral windfalls.

E. Collateral Source—payments from insurance that covers loss from damages—does not reduce award for plaintiff because was payment for services paid for (insurance premiums). This is an exception to the general rule that damages in tort should be compensatory only (only enough to make plaintiff whole) and not to give them a windfall.

i. Gibney—no damages for daughter’s gratuitous nursing services (bad for P)

ii. Kaiser—plaintiff could recover when nursed by wife/daughter (good for P)

F. Punitive Damages— i. Restatement (2d) §908—damages other than compensatory or nominative

that are awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

ii. Juries may consider— 1. character of defendant’s act 2. nature and extent of harm to plaintiff that defendant caused or

intended to cause 3. wealth of defendant (to punish)

iii. Goals of punitive damages— 1. punish defendant 2. deter defendant from acting in similar manner 3. deter others from acting in similar ways in future

iv. Controversial because of subjective nature—many states (about ½) have placed caps of some kind on punitives

1. State-specific caps— a. Maryland--$350,000 on non-economic damages b. California--$250,000 on non-economic damages when

defendant is health care provider 2. Supreme Court 9:1 ratio ‘cap’—punitives cannot exceed a 9:1 ratio

of compensatories—BMW v. Gore but can be higher if extreme circumstances—State Farm Insurance v. Campbell (but awards must still be reasonable)

v. Requires a showing of bad intent on part of defendant (recklessness or intent)

vi. Some states require a clear and convincing show of proof rather than just preponderance of evidence

vii. Three guideposts for evaluating punitive damage awards— State Farm Insurance v. Campbell

1. degree of reprehensibility of defendant’s conduct 2. disparity between the actual or potential harm suffered by plaintiff

and the punitive damages awarded 3. difference between punitive damages awarded by the jury and the

civil penalties authorized or imposed in comparable cases

XI. Defenses—plaintiff has done something wrong—what effect does this have on case? Defenses relating to conduct of plaintiff—

A. Contributory Negligence—only available in a severe minority of states, acts as a complete bar to recovery when plaintiff has contributed in some way to their injuries. The defendant has the burden to establish the prima facie case for negligence of the plaintiff.

i. Hoffman v. Jones—best argument for plaintiff against contributory negligence being a complete bar and the adoption of comparative fault.

ii. Seat belt use and contributory negligence—there is a SPLIT in how lack of seat belt usage should be treated—

1. May reduce plaintiff’s damages—Spier v. Barker (NY) 2. Not a factor in most cases, but relevant to causation in

‘crashworthiness’ cases where manufacturing safety defect is being brought up—General Motors Corp., v. Wolhar (DE)

3. Failure to wear seat belt cannot be considered contributory negligence—Amend v. Bell (WA)

B. Comparative Fault—found in the majority of states, plaintiff’s damage award is reduced by their proportion of the fault. Comes in three types—

i. Pure—found in 13 states, plaintiff can recover no matter what their percentage of fault (up to 100%), their damages are simply reduced by their percentage of fault.

ii. Modified 50%—found in 21 states, if plaintiff’s percentage of fault exceeds 50% then they are barred from recovery. Otherwise damages reduced by their percentage of fault.

iii. Modified 49%—found in 11 states, if plaintiff’s percentage of fault exceeds 49% then they are barred from recovery. Otherwise damages reduced by percentage of fault.

C. Assumption of Risk—General rule is that a plaintiff that voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover from such harm—Restatement (2d) §496(A) Falls into two categories; express and implied.

i. Has four basic subtypes—Restatement (2d) §496(A) 1. Contractual—express, usually found in contracts, does not cause

problems—Complete bar in all states, where contract is valid—P must argue that contract wasn’t valid.

2. Relational—implied, plaintiff has some relationship with defendant that relieves them from liability (spectator in baseball stadium)

3. Reasonable—implied, plaintiff knows of risk created by defendant’s negligent conduct but decides to go ahead anyway, weighing utility of conduct against risk, cases turn on whether plaintiff’s actions were truly voluntary

4. Unreasonable—implied, most typical, plaintiff encounters risk that was unreasonable and proceeds anyway,

a. overlaps somewhat with contributory negligence—

No duty is owed to the plaintiff

difference is here is subjective standard—did plaintiff actually know of risk whereas contributory negligence has an objective standard of a RPPUTC.

ii. Utility—Assumption of risk can be used as a defense for reckless and cases where defendant is subject to strict liability whereas contributory negligence cannot.

iii. Procedural effects—SPLIT 1. Complete bar for plaintiff’s recovery 2. In states with comparative fault

a. Abolished use of AR and treat as fault factor b. Still allow AR to be considered

iv. Defendant’s burden— 1. Plaintiff had actual knowledge of risk 2. Plaintiff had appreciation of risk 3. Plaintiff voluntarily exposed themselves to risk