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TORTS OUTLINE
PROFESSOR TRAVIS
I.
INTRODUCTION: THEORIES OF TORT LIABILITY
A. Definition of tort
1. Latin tortus – twisted; French – injuries  TWISTED INJURIES
2. Formal definition – “a civil wrong, other than a breach of contract, for which the law provides a
remedy”
B. Is there liability?
Yes Liability
“No fault”
No Liability
“fault”
Strict Liability
Negligence
(should know risk)
Intentional Tort
(meant to do it)
No Tort
Limits?
-Π behavior?
- Δ status?
- another Δ?
C. Purpose of Tort Law
1. To impose a duty upon members of society to act with reasonable care
2. To give injured party a monetary equivalent to “make them whole”
D. Why make someone pay?
1. Maliciousness (intentional)
2. Lack of Care (negligent)
3. Deterrence (Discourage other people from acting the same way)
4. Resolve disputes, to keep individuals from taking law into own hands
Intentional Tort Framework Template:
Intention:
D acts with the purpose of causing…… OR
D acts with the knowledge that …… is substantially certain to be produced.
Causation: But for the act, ….. would not have been produced
Result: P suffers ……
II.
INTENTIONAL TORTS
A. BATTERY: “Intentional infliction of a harmful or offensive bodily contact.”
In order to prove a cause of action for battery, the plaintiff must show: Intent, Causation, Result.
1) That there was an intentional act: an act done with the purpose of causing a harmful or offensive bodily contact;
or with the knowledge that a harmful or offensive bodily contact is substantially certain to be produced;
2) Causation: but for the act, harmful or offensive bodily contact would not have occurred.
3) Result: that the plaintiff actually suffered harmful or offensive bodily contact.
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1. Intent:
A) Purpose: D acts with the purpose of causing a harmful or offensive bodily contact. OR
B) Knowledge: D acts with the knowledge that a harmful or offensive bodily contact is
substantially certain to be produced.
2. Causation: But for D’s act, a harmful or offensive bodily contact would not have been
produced.
3. Result: P suffers a harmful or offensive bodily contact.
Cases:
Garratt v. Dailey
 Facts: D is 5 year old child. P is adult woman. D pulls chair out from under P as she is sitting down. P hits
ground and fractures hip.
 Issue 1: Can D, a young child, be liable for battery.
 Holding 1: Yes. Court looked at sequence in which events occurred and held that because the D saw that
the P had already begun to slowly sit down in the chair before D pulled the chair away, D had knowledge
that the harmful bodily contact was certain to be produced. The child’s age is a relevant factor in
considering whether the child D knew that harm would result from his action.
 Issue 2: Does harmful contact need to involve bodily contact between D and P’s physical bodies?
 Holding 2: No. Harmful or offensive bodily contact can be produced through P’s contact with the ground
when she falls. D does not actually have to physically touch P for there to be battery.
Picard v. Barry Pontiac-Buick
 Facts: P is suspicious customer and D is car repairman. P takes a picture of repairman as he is inspecting
the brakes. D uses index finger to touch the camera and says “who gave you permission to take my
picture?!”
 Issue: Can D touching camera that P is holding constitute battery?
 Holding: Yes. D’s harmful or offensive touching of anything connected with the P’s body is considered
harmful or offensive contact with P himself. Items such as clothing, a cane, or anything grasped in the hand
is considered part of P’s body in a battery claim.
Examples:
 Lightly Tapping: Tapping someone on the shoulder to ask for directions is NOT battery because this is not
considered a harmful or offensive bodily contact to the average reasonable person. Plus, the D in this case
does not have the right mindset; the D is not intending to cause any harmful or offensive bodily contact. D
could not possibly know that P would find this touching so offensive. If, however, P has warned D
beforehand not to touch her, than it would be battery, because the D would know that P considers this type
of touching and goes ahead anyway knowing (knowledge prong) that P will be offended when touched.

Life or Death Situation: Even if P will die without help, if she says “don’t touch me” and D does anyway,
D is liable for battery (meets intent through the knowledge prong).

What if D’s contact actually helped: Even if D actually succeeds in helping the P in the end, the fact that
P said not to touch him means that it would still be battery if all requirements of battery are met. No actual
harm needs to occur as long as P is offended.

Purpose without Knowledge: If P throws a rock trying to hit D, but P knows he has really bad aim and
will probably fail. Then if rock hits D anyway, purpose is met but knowledge is not.

Reasonable Force: D can use reasonable force to protect self. It is not considered battery if D hurts
someone to protect his interests.

Unconsciousness: P may not even be conscious during battery. Battery can happen while P is sleeping.
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
Intent to Batter is not a tort: There is no tort for intent to batter. D either commits battery or doesn’t
commit battery. D must actually succeed in the result.

Battering your own child: D is still liable for battery if the harm caused is to his own child.

No intent = No battery: If A and B are playing catch with a stick and the stick hits C who is walking by. A
and B not liable for battery of C because they did not have purpose to hit him, and were not substantially
certain that by throwing the stick they would hit him (may be liable for something else though, like
recklessness).
B. ASSAULT: “The reasonable apprehension of a harmful or offensive bodily contact.”
“An assault is the intentional infliction of the reasonable apprehension of an imminent harmful or offensive bodily
contact. In order to prove a cause of action for assault the P must show:
1) That there was an intentional act: an act done with the purpose of causing the reasonable apprehension of an
imminent harmful or offensive bodily contact; or with the knowledge that the reasonable apprehension of an
imminent harmful or offensive bodily contact is substantially certain to be produced;
2) Causation, and
3) That the P actually suffered the reasonable apprehension of a harmful or offensive bodily contact. ”
1. Intent:
A) Purpose: D acts with the purpose of causing the reasonable apprehension of an imminent
harmful or offensive bodily contact. OR
B) Knowledge: D acts with the knowledge that the reasonable apprehension of an imminent
harmful or offensive bodily contact is substantially certain to be produced.
2. Causation: But for D’s act, the reasonable apprehension of an imminent harmful or offensive bodily
contact in P would not be produced.
3. Result: P suffers the reasonable apprehension of an imminent harmful or offensive bodily contact.
Cases:
Western Union v. Hill
 Facts: P woman goes to D clock repairman to have her clock fixed. D tells P that he will fix the clock in
exchange for P allowing him to fondle her. D reaches toward P but never actually touches her.
 Issue1: Can D offensively reaching toward P constitute battery?
 Holding 1: No. There is no touching or contact of P, so this cannot be battery.
 Issue 2: Can D offensively reaching toward P and expressing unwanted desire to fondle her be considered
assault?
 Holding 2: Yes. Because D acts with the purpose of causing reasonable apprehension in P and the
knowledge that reasonable apprehension is certain to be produced, this is assault. Even if it is physically
impossible for D to actually reach beyond his desk and touch P, as long as P thinks it is possible and suffers
reasonable apprehension as a result, then it is assault. As long as D has the “apparent ability” then it is
assault.
Examples:

Apparent Ability- Whether D appears to be able to commit a harmful or offensive bodily contact is important.
It doesn’t even have to be really possible for D to complete the act of battery as long as P thinks it is possible.
(Western Union v. Hill). Use RP standard.

Toy gun counts toward assault: D uses a toy gun to threaten P, as long as P thinks that D could
actually
shoot him, then it is still assault because the reasonable apprehension of an imminent harmful or offensive
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bodily contact is produced in P.

P must see the harm coming: If D throws rock at P and P has his back turned at the time, even if P turns and
realizes that he could have been hit, this is NOT assault because P did not have a moment of apprehension. P
getting hit in back of head is not assault because P never saw it coming. P must be conscious during assault.

P must be apprehensive about harm to himself, not other people: It is not assault if the apprehension P feels
is apprehension that someone else will suffer a harmful or offensive bodily contact.

It doesn’t matter that P would most likely not get hurt or be able to defend self: Even if it is a very small
person threatening a very big person, assault turns on the acts and intent of the D, not on how good the P is at
self-defense.

An intentional tortfeasor is liable for ALL the consequences of their torts: P is so upset by D’s threat that P
develops a phobia and seeks therapy. D must pay for these resulting damage if D committed the initial assault.

Afraid: P doesn’t actually have to be afraid or show fear. P just has to think that something is about to happen.

Imminent: 2 weeks from now is not imminent.

“Apprehension”: When P thinks to himself, “I am about to have a moment of touching in a harmful or
offensive way”

Words Alone Not Enough: Just saying something threatening is not enough for assault. D must make a
motion so P thinks that what is being threatened is possible, and is actually going to happen right now.

Harm doesn’t have to actually happen: As long as P thinks that harmful or offensive bodily contact is going
to happen, it never has to actually come to pass.

All resulting damages: D intends threaten and scare P, but P is so startled that P falls down the stairs and
breaks both legs. D must pay for all resulting damage caused to P.
C. TRESPASS TO LAND “Interference with the exclusive possession of land.”
In order to prove a cause of action for trespass to land, the plaintiff must show:
1) That there was an intentional act: an act done with the purpose of causing interference with the exclusive
possession of land; or with the knowledge that an interference with the exclusive possession of land is substantially
certain to be produced;
2) Causation, and
3) Result: The plaintiff actually suffered an interference with the exclusive possession of land.”
Intent: A) Purpose: D acts with the purpose of causing an interference with the exclusive possession of
land. OR
B) Knowledge: D acts with the knowledge that interference with the exclusive possession of land
is substantially certain to be produced.
Causation: But for the D’s act, an interference with the exclusive possession of land would not
have been produced.
Result: P suffers an interference with the exclusive possession of land. “actual damage is NOT a
necessary result.
Cases:
Rogers v. Board of Road Commissioners
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

Facts: D government road worker has permission from P landowner to put up snow fence on P’s land.
Agreement is that when winter is over, D will remove all pieces of fence. D leaves an anchor post in the
ground and P’s husband hits it with the lawnmower and dies.
Issue: Can leaving something behind on someone’s land after your agreement expires constitute trespass?
Holding: Yes. Failure to remove the something that takes up space on the land is “continuing trespass”
With or without the damage, leaving post on land is still trespass.
Copeland v. Hubbard
 Facts: P homeowners invite D reporter into their home because D tells them that she is a veterinary student.
D then films and photographs P and their home and broadcasts on TV.
 Issue: Is coming onto someone’s property under false pretenses considered trespass to land?
 Holding: Yes. The “entrant moved beyond the scope of P’s invitation by using the visit for something other
than educational or vocational purposes.” D overstayed her welcome. If visitor D knows or should have
known that she is no longer (or never was really) welcome in P’s home, than it is trespass. Trespass begins
when consent ends and D is aware of the lack of consent.
Herrin v. Sutherland
 Facts: D stands on adjacent land and fires shotgun into the airspace of P’s land while duck hunting.
 Issue1: Is firing a gun over someone else’s land considered trespass to land?
 Holding 1: Yes. Interfering with the use and enjoyment of another person’s land is trespass.
 Issue 2: Is the airspace over P’s land possible to trespass upon?
 Holding 2: Yes. A property owner has rights to the airspace above his land, but only to a certain extent.
Courts usually look at how a property owner could hypothetically reasonably use his airspace, but actual
use is taken into consideration as well. Ex: If P operates a hot air balloon company out of his back yard,
maybe more wide-reaching airspace rights. Jet plane flying above land = not trespass, bullet zooming
through air = yes trespass, news helicopter hovering in airspace = could go either way. (Policy issue:
encourages business)
Restatement Section 160: Failure to remove a thing placed on the land pursuant to a license or other privilege
“A trespass actionable under the rule stated in 158 may be committed by the continued presence on the land of a
structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon
(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent
has been effectively terminated, or
(b) pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the actor fails to
remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.”
Examples:
 Tangible Physical Invasion: There is a requirement that the invasion be a physical one, which usually
must be accompanied by a tangible mass. Light and music from D’s outdoor movie theater is NOT a
trespass onto neighbor P’s land, just a nuisance. Nuisance begins where trespass leaves off. D throwing
trash onto P’s land is trespass because invasion is tangible and intentional. Taking photos of P’s land is not
a trespass because it is not tangible.
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Continued Presence: A trespass may be committed by the continued presence on the land of a structure,
chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon:
(a) with the consent of the person then in possession of the land, if the actor fails to remove it after
the consent has been effectively terminated, OR
(b) pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the
actor fails to remove it after the privilege has been terminated, by accomplishment of its
purpose or otherwise” (Restatement S 158, p. 368).

Continuing Trespass: D’s failure to remove an anchor stake on P’s land after the license to have it on land
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expired is a continuing trespass. Case is especially strong because tangible item is something dangerous, a
bullet. (Rogers v. Kent County).

Fences or boundaries: Land does not have to be enclosed or have marked borders in order for trespass to
occur.

No Purpose or Knowledge (No Intent) = No trespass: If A pushes D onto P’s land . There is no trespass
because D had no purpose or knowledge to touch P’s land. Person who pushes could be liable though. If D
is just wandering along distracted and trips onto P’s land, there is also no trespass because no intent.

Air Space: “The airspace, at least near the ground, is almost as inviolable as the soil itself. D firing a gun
or throwing a ball in the airspace over P’s land while duck hunting is a trespass. (Herrin v. Sutherland).

Air Travel: Air travel is a trespass only if it enters into immediate reaches of the air space next to the land,
and interferes substantially with the others’ use and enjoyment of the land. (Restatement SS 159, 194).

Absent Landowner: Even if P landowner is on vacation at the time that D steps onto his land, it is still
trespass because P still has a right to his land, whether or not P is using land at that exact moment.

“Easement”: D could hypothetically get a right to use of P’s land via easement if it is established that D
has been using P’s land in the past without P objecting.

“Prescriptive rights”: if you let someone do something enough times, they gain rights; if you don't assert
your rights, you can lose them

Negligent Trespass: “When the trespass onto the land is merely negligent, proof of some actual damage is
essential to the cause of action.

Beneficial Motive: Even if the D’s motive is to help the P, or if the trespass is socially useful, entering P’s
land without permission still constitutes trespass. If P sees a bear eating the crops on D’s land and goes to
stop him to try to help P, it is still trespass. “When a trespassory invasion is found, the fact that the D’s
conduct was socially useful or even beneficial to P does not take away liability.” (However, D may have
some kind of “good Samaritan protection”

P doesn’t actually have to say “get out”: If D comes onto P’s land under “false pretenses,” then P
doesn’t actually have to tell D to leave for it to be a trespass. D should have known that he was unwelcome
because he was under false pretenses.

Throwing trash onto someone’s land: Yes trespass. Every element is clearly met, it is a tangible physical
invasion etc. May be considered a nuisance.

Playing loud, annoying music right next to land: Not trespass. No tangible physical invasion, same as
light, smoke, pollution. Unless there is something tangible, it is not trespass.

Throwing a ball in airspace over land: Yes definitely a trespass. Even though a bullet may be a stronger
claim because it is something dangerous and a ball is not.

Standing off land taking pictures of land: No trespass. Possibly a nuisance, but no tangible invasion.

Trespass vs. Nuisance: Trespass protects space itself. Nuisance protects enjoyment of space.

Homer v. Bill Gates: D is invited for one purpose, but the purpose changed when D starting destroying
property

Ejectment: If D is not just temporarily on land, but is in possession of P’s land, P can have cause of action
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for ejectment against D.
D. TRESPASS TO CHATTELS “ Intentional interference with the exclusive possession of
a chattel”
In order to prove a cause of action for trespass to chattels, the plaintiff must show:
1) That there was an intentional act: an act done with the purpose of causing an interference with the exclusive
possession of a chattel; or with the knowledge that an interference with the exclusive possession of a chattel is
substantially certain to be produced;
2) Causation, and
3) That the plaintiff actually suffered an interference with the exclusive possession of a chattel, and
4) That actual damage has been produced.”
Intent: A) Purpose: D acts with the purpose of causing an interference with the exclusive possession of a
chattel.
B) Knowledge: D acts with the knowledge that interference with the exclusive possession of a
chattel is substantially certain to be produced.
Causation: But for the act, an interference with the exclusive possession of a chattel would not be produced
Result: P suffers an interference with the exclusive possession of a chattel whereby “actual damage” is
produced.
A. “Actua.l Damage Test”: One who commits trespass to a chattel is subject to liability only if…
(a) he disposes the other of the chattel OR
(b) the chattel is impaired as to its condition, quality or value, OR
(c) the possessor is deprived of the chattel for a substantial time, OR
(d) bodily harm is caused to the possessor or harm is caused to some person or thing (not the chattel itself)
in which the possessor has a legally protected interest.
In other words:
(a) D took your thing and never gave it back or destroyed it.
(b) usually means D caused physical damage to your thing
(c) D took your thing but eventually gave it back (substantial time can be relative, seeing eye dog)
(d) no need to show physical damage here
Cases:
Glidden v. Szybiak
 Facts: 4 year old child D jumps on back of P’s dog and pulls his ears.
 Issue: Can D be liable for trespass to chattels without causing any actual damage?
 Holding: No. Child did not a)take the dog, b) hurt or impair the dog, c) deprive P or dog for a substantial
period of time, or d) cause bodily harm to any person or thing in which owner has legal interest. Thus no
damages, so, no trespass to chattel.
CompuServ v. Cyber Promo.
 Facts: P and D are both computer companies. D sends unsolicited junk mail to P even though P has
requested them to stop. The mass e-mails D sends burden P’s system and takes up storage space and causes
loss of customers and therefore loss of income.
 Issue: Can a seemingly intangible trespass without physical harm be considered trespass to chattels?
 Holding: Yes. There is actual damage because P has suffered injury to something in which it has a legally
protected interest: its customers/income from customers. Also, there is actual impairment to the server.
Electronic signals ARE tangible chattels.
Intel v. Hamidi
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Disgruntled ex-employee D sends 6 e-mails to former employer company P that damage reputation;
promote unwanted discussion and waste time and resources to put a stop to.
Issue: Can sending of 6 mass e-mails to 30k people constitute a trespass to chattels?
Holding: No. There is no actual damage from the e-mails. There was no impairment to the computers. Only
damage was wasted time, energy, reputation etc.

No Damages = No Trespass to Chattel: There can be no cause of action for trespass to chattel if actual
damage is not met. (Glidden v. Szybiak)

Tangible chattels: Chattels can be something that seems intangible such as electronic signals (Compuserv
v. Cyber Promotions).

Using Force to Defend: “Sufficient legal protection of the possessor’s interest in the mere inviolability of
his chattel is afforded by his privilege to use reasonable force to protect his possession against even
harmless interference.

Absent owners: The owner of the chattel does not have to be present in order to have a claim for trespass
to chattels. Policy issue: if owner had to be present, this would mean that anyone could use their neighbor’s
things when he went off to work.

“Intermeddling”: Intentionally bringing about a physical contact with the chattel.

Trespass begins when ends consent and D is aware of the lack of consent.
E. EXTENSIONS ON INTENT
A. Mistaken Identity
“D is clearly liable for the damages caused by his mistake; notwithstanding that D was acting in good
faith.”
Cases:
Ranson v. Kitner
 Facts: D wolf hunter shoots and kills P’s dog because D thinks it is a wolf.
 Issue: Can D be held liable for mistaken identity when D was acting legally and in good faith?
 Holding: Yes. Even though D did not have the purpose to kill the dog or the knowledge that it was the dog
he was shooting. D is still liable because his act of aiming and shooting was intentional even though he was
mistaken as to what exactly he was shooting at. In other words, onduct is treated as intentional even if
though D acts under an innocent mistake. D intended to kill the animal. D intended to harm something. It
doesn’t matter that killing a wolf would have been lawful. Intent is met through the purpose prong because
the D purposefully aimed and shot intending harm, it just so happened that he was aiming at the wrong
target.
Dougherty v. Stepp
 Facts: D goes onto P’s land thinking it is his own. D does not cause any harm to P’s land.
 Issue: Is D walking onto P’s land a trespass to land if D thinks the land is his?
 Holding: Yes. D walked onto the land with purpose and therefore intent. The fact that he thinks it is his
own land does not negate the fact that the purpose prong has been met. Mistaken identity of land is not a
defense for trespass, even if there is no damage. In other words, D still intended to interfere with the
exclusive possession of land, it just turned out that that land belonged to someone else instead of him.
Examples:

Mistaken Identity is never a defense: D can never use mistaken identity as a defense for lack of intent.
Just because D thought target was someone/something else is not an excuse. Mistake does not negate the
purpose that D had to affect the person or property. D’s conduct is treated as intentional even though the D
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acts under an innocent mistake.

Includes: Touching someone D thought was someone else. A doctor operating on a patient he thought was
someone else. D drives off P’s herd of sheep thinking that they are his own. D takes a chattel he thinks is
his own chattel. Etc.
B. Transferred Intent
“When D intends any intentional tort and commits a different intentional tort, he is held liable, even if the P
was not the intended target.



Defenses: ??
Consent (P said it was ok)
Privilege (you had a specific right to do it)
Necessity (you had no other choice)
Cases:
Talmage v. Smith
 Facts: D throws a stick intending to hit one boy and instead the stick hits the other boy.
 Issue: Is D liable for battering Boy #2 when what he really meant to do was batter Boy#1?
 Holding: Yes. D intended battery and committed battery, so he should be punished for battery, it
doesn’t matter that the battery happened to the wrong target. The intent via purpose and knowledge to
harm A will transfer to fill the intent prong in B’s battery claim.

Battery  Assault: D throws a stick at A intending to batter A but misses and stick goes zooming past P’s
head. P sees the stick coming, has a moment of fear and just has enough time to duck and avoid getting hit.
D’s intent to batter A can transfer to fill the intent requirement in the cause of action for assault against P.

“The right of P to recover could be made to depend upon an intention on the part of the D to hit somebody,
and to inflict an unwarranted injury upon someone. Under these circumstances, the fact that the injury
resulted to another than was intended does not relieve the defendant from responsibility.”

Transfer to any: Intent to commit any intentional tort (assault, battery, and trespass to land or chattel) can
be transferred onto any other intentional tort to fill an intention gap.

Fills intent requirement: “When the D intends any one of the four torts (battery, assault, trespass to
land/chattel), and accomplishes any one of the four, the doctrine applies and the D is liable, even if the P
was not the intended target.”

The jury decides if there was intent.
Note: Damages for Intentional Torts
Compensatory:
How much P would actually have to pay to fix the problem (Dr. bills, replacing broken item etc. )
Punitive:
To deter or punish D from repeating behavior, or deter others from copying D’s bad behavior.
Nominal:
Just to set an example and show that P won the case. Could be as little as $1. Also useful when P needs to show that
D does not have ‘easement’ rights to P’s land, because P has already sued and won.
III.
NEGLIGENCE
A. Elements of Negligence
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
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Duty: There is a duty to act reasonably. To use reasonable standard of care for the protection of others
against unreasonable risks.
Breach: When someone fails to live up to the standard of care set out by duty.
Causation: Must be a reasonably close causal link between the D’s breach and the harm suffered by P
Damages: Actual loss suffered by another. P must show that real harm was caused to them
B. DUTY
If D was acting reasonably when he caused the tort, then there is no liability
For Duty, Person can mean different standards: professional, person with a disability, child etc.
2 Questions about Duty:
1.
2.
Did the D owe a duty?
If yes, what is the duty?
Rule: When D is out in the world engaged in risk creating behavior, D generally owes a duty of RPUC.
1.
Standard of Care: “Reasonable Person Under the Circumstances” (RPUC)
Vaughan v. Menlove
 Facts: D is of below average intelligence. D builds a haystack near P’s cottages even though others warn D
that the hay is in danger of catching on fire from the sun.
 Issue: Should D, who is not very smart, but doing the best that he can, be held to the same objective duty
standard as everyone else?
 Holding: Yes. A D of lower intelligence cannot be held to lower, subjective standard. We need one uniform
standard because there are policy problems of having a different subjective standard for each individual
person. D of lower intelligence should still be measured up against the ‘reasonable person of ordinary
prudence under the circumstances’ standard.

Default Standard: RPUC. Hypothetical person is reasonable with ordinary prudence in his brain.

Test: Take the hypothetical reasonable person and place them into the situation and think “what would they
do?”

Mental Handicaps: Even the mentally handicapped are held to the same RPUC standard for negligence.
Even if their handicap renders them the mental equivalent of a child.

Overly smart and overly stupid: Both are held to the same basic RPUC standard.

Auto accident analogy: Whether D got his license yesterday or 20 years ago, he will be held to the same
driving standard as everyone else on the road, even if he has never driven in snow and there is a blizzard.
Cordas v. Peerless Transport
 Facts: Taxi driver D is driving while being held at gunpoint by robber n backseat. D pulls e-break and dives
out of the car which then rolls and hits P standing on sidewalk.
 Issue: Should a D who is in an emergency situation not of his own making be held to the RPUC standard?
 Holding: Yes. D is still held to the same RPUC standard, only the circumstances have changed to one of
emergency. So the question is, did D act as a reasonable person would in that emergency circumstance?
Here, the court found that jumping from the car to save his own life is what a RPUC would have done.

Sudden Emergency: Must be unforeseen, sudden, unexpected, and not of the D’s own creation.
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Ex: black ice on the road, falling boulders, low swooping airplane, street darting children or animals. Being
blinded by the sunset is NOT a sudden emergency situation because it is foreseeable.
Roberts v. Louisiana
 Facts: D 3 year employee of post office is totally blind and uses a cane. D trips P while walking in post
office. D is not using cane at the time.
 Issue: Is a blind D held to the same RPUC standard for negligence?
 Holding: No. Ds with physical handicaps get their own standard. “Reasonable person with that same
physical disability under the circumstances” (RBPUC). Since D was being reasonably prudent and not
using a cane at work is considered reasonably careful for a blind person, this D was judged to be reasonably
careful. Blind D used expert witness to say what RBPUC would do.

Physical vs. Mental Disability: Ds with physical disabilities get their handicap mapped onto the RPUC
standard. Ds with mental deficiencies do not. There is a push in curts to blur that line, but it is still the rule.
Robinson v. Lindsay
 Facts: D child is driving a snowmobile pulling behind it P child on a sled. Rope wraps around P child’s
hand and thumb is severed.
 Issue: Should a minor child be held to the same RPUC standard as an adult?
 Holding: When D child is engaged in a) inherently dangerous or b) adult behavior, that D should be held to
an adult standard because child was operating a powerful mechanized vehicle, even though cild was only
driving 10mph.

Default Child Standard: Child engaged in non-dangerous or childlike behavior should be held up to
standard of child or “same age, intelligence, maturity, training and experience” as this same D child has.
(very subjective test). Policy issue: Children should be allowed to grow and learn with experience before
being held accountable. Kids get a buffer period until age 18, and then the learning time is up.

Bart vs. Lisa: Even though Lisa is younger, she is much more prudent and smart in many ways. Bart is
smart in his own street-smart sort of ways. It is very difficult to compare one child to another as far as
intelligence, maturity etc. Defining intelligence especially is very controversial.

Dangerous Child Standard: Child engaged in dangerous or adult behavior should be held up to adult
RPUC standard. (objective test)

Location matters: Different parts of the country label different things as ‘child activities’. Ex: Adult
behavior has been held to include: driving a car, motorcycle, motor boat, motor scooter and golfing. Child
behavior includes: riding a bicycle, building a campfire, downhill skiing and deer hunting.
Heath v. Swiftwings
 Facts: D Pilot crashes private plane and kills self and all passengers.
 Issue: Should D pilot be held to RPUC who has some flying experience standard?
 Holding: No. The ordinary care standard must take into consideration the special profession of whatever
the D is holding himself out to be t the time (i.e. a pilot). D should b held to a minimum standard applicable
to all pilots. Allows court to call in expert witness because flying a plane is not something that the normal
jury member would know anything about.

Professionals: A professional standard used for: Accountants, Engineers, Clergy, Health Insurance Plan
Designers, Doctors, Dentists, Veterinarians, Pharmacists, Teachers, Lawyers, Pilots. Etc.

Specialists: Person who holds self out to be a specialist has even higher skills than a professional, and will
be held to an even higher standard than regular professional.
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
Pro Bono: A professional or specialist who provides services for free is still held to professional or
specialist standard.

Professional doing action in his profession: A professional race car driver will only be held to the
professional race car standard when he id race car driving, not when he is just driving to the grocery store.

Professional acting as different professional: Professional race car driver who attempts to fly plane is
holding himself out as a pilot and will be held to the pilot standards. Similarly, a law student who gives
legal advice while holding themselves out to be a real lawyer will be held to a higher lawyer standard, and
not just RPUC.
2.
Limits on Duty: Failure to Act
Rule: Bystanders and witnesses do not generally owe any duty unless they fit into an exception.
Exceptions to the Duty Rule:
Generally D owes no duty unless an exception applies:
1)
2)
3)
4)
5)
Voluntary undertaking by D and detrimental reliance by P
Special relationship between D and P
D controls the instrumentality of harm
D creates the danger (even if in a non-negligent way)
Special relationship between D and 3rd party harm inflictor
Duty invoked is only that of a RPUC.

Bystander A sees stranger B drowning. No duty

Bystander A who accidentally bumps stranger B into ocean who then starts drowning. Yes duty because A
created the danger.

Friend A dares adult B to jump into the ocean. B does and starts drowning. No duty. B is an adult and made
the choice to jump. Very weak causal relationship between A’s dare and B’s jump. (Yania v. Bigan)

Wife sees husband drowning. Yes duty because special relationship. Wife does not have to risk her own
life, she can just get help.

Employer sees employee during summer break drowning in the ocean. No duty. Unless employee is
actually working at moment of the incident, boss has no duty.

On duty lifeguard sees someone drowning Yes duty. Lifeguard has voluntarily undertaken the duty to help
people in this situation. People have detrimentally relied on fact that lifeguard is there to help them.

Off duty lifeguard sees someone drowning. No duty. Just because lifeguard knows how to save person,
doesn’t mean he has to off the job. There is a liberty interest. Otherwise lifeguards would not be able to go
anywhere in their free time without worrying about saving everyone. Same for doctors or anyone with
medical training.

Off duty lifeguard who has said to the person swimming, “go on, I will watch you.” And swimmer knows
that person is a lifeguard. Yes duty. The lifeguard has voluntarily undertaken the duty by making a promise
that the swimmer relied on. If swimmer doesn’t know person is a lifeguard, and lifeguard not holding self
out to be, then lifeguard just held to RPUC standard?

Support of the No Duty Rule:
If situation is not the actor’s fault, he shouldn’t have to help
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


Imposing a duty makes it hard to draw the line
Imposing a duty would infringe on the liberty interest of the actor
By trying to save someone, actor could actually make them worse or hurt other people in the process.



Criticism of the No Duty rule:
We are all in this together, no care for safety of others
Someone who could easily be saved would be let to die
People who have the skills to help should have a duty to do so.

The Good Samaritan: To encourage people to help out, there is a Good Samaritan law that shields people
from some liability if they are just trying to do a good deed. Especially doctors who may try to help out in
unsterile circumstances with no assistance and no tools. They will not be held to the same strict ‘doctor’
standard unless grossly negligent. They will be held to reasonable doctor under those circumstances
standard.
Promises to Act:
 Promise to warn, supervise, call doctor or police, to keep pet locked up etc.
Hegel v. Langsam
 Facts: Ps parents of 17 year old college student sue D university for allowing their daughter to get involved
with criminals and drugs, be seduced, be absent from dorm, and not return to parents after school is out.
 Issue: Does D university have a duty to supervise and protect 17 year old student in her private life?
 Holding: No. D assumes that students are old enough to handle their own private lives. D is not a babysitter
or daycare. It would be different if student was a baby or very young child. It would be different if harm
happened inside the dormitory where D has specially undertaken to care for students. (compare to Yania v.
Bigan)
L.S. Ayres v. Hicks
 Facts: 6 year old boy shopping with mother P, in department store. Boy falls on escalator and gets fingers
stuck. D store unreasonably delays stopping the escalator which results in exacerbation of boy’s injuries.
 Issue 1: When does D store’s duty to customer begin?
 Holding 1: The moment the customer walks through the door, but the duty D has is to act as a RSUC
reasonable store under the circumstances.
 Issue 2 Is D store liable for customer getting hurt inside their store?:
 Holding2: No. until the store actually does something wrong, D store is not liable
 Issue 3: Is D store liable for not stopping the escalator in a reasonable amount of time.
 Holding 3: Yes. So D will be liable for any injuries that occur as a result of the escalator in time, but not the
original injury. Just the exacerbation of the injury. D is not liable for not being able to anticipate or prevent
injury. Since D controls the instrumentality of harm (escalator), D falls under exception to duty rule.
Special Relationships:











Store and customer also have a special relationship of invitor/invitee.
Shipmaster/sailor
Employer and on-duty employee (only during work hours, not on lunch break etc.)
Common carrier and passenger
Jailor/prisoner
Legal custodian and his charge
Innkeeper and his guest
Teacher and student, but only during school hours
Occupier of land and entrant onto land
Husband/wife or parent/child
Bar owner has duty to good Samaritan who wants to use the phone to call police. Bar owner himself does
not have duty to call police to help someone outside of bar. (Soldano v. O’Daniels)
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Negligent injury by D: When the D by his own negligence injures another, there is general agreement that he is then
under a duty to take reasonable affirmative action to aid him.
Innocent injury by D: When D, without negligence, creates a dangerous condition on the highway, it is agreed that
he is under a duty to take reasonable precautions against injury to other people using the highway. i.e. If truck driver
breaks the bridge, he has duty to warn other drivers that bridge is broken.
Tarasoff v. UC Regents
 Facts: D Psychiatrist is told by patient that he intends to murder a pinpointed and identifiable target P.
 Issue: Does D have a duty to warn P of the 3rd party harm inflictor?
 Holding: Yes. P has a special relationship (doctor/patient) to the 3 rd party harm inflictor. P needs to exercise
the reasonable care of a doctor under the circumstances. P can foresee that P target is in danger, and should
reasonably warn P, even if it breaches his confidentiality with his patient.

Non-pinpointed victim: Even if 3rd party says “I intend to kill a child in this neighborhood” there is no
duty to warn parents in the neighborhood unless a specific child is identified as a target. Policy issue, have
to draw the line somewhere.

Doctor’s duty to warn: California psychotherapists are immune from liability to warn except where the
patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably
identifiable victim or victims. (Can’t be a huge set of victims i.e. every brown haired girl etc.) Duty to warn
parents of a suicidal child. Doctors have duty to warn partners of HIV positive patient, but this duty is
satisfied through warning the patient himself of the risks involved. Doctor does not have to physically track
down and warn any of patient’s partners that patient has AIDS. But courts have held that Doctor has duty to
warn patient’s wife.
3.
Limits on Duty: Emotional Distress
Rule: As long as P gets a physical injury as result of incident, then P can recover for that AND the “parasitic”
emotional injury that happened as result.
No physical injury: courts are generally not going to allow P to recover if he just has emotional distress and no
accompanying physical injury. Even if the physical injury is a sprained ankle.
Policy issue: the court needs to draw the line somewhere; otherwise too many people would claim emotional
distress. ED is easy to fake, hard to put a monetary value to, harder to prove.
Exception to the no recovery for emotional distress rule:
2 broad categories of cases:
1) Direct Distress Situation
When the P’s distress followed directly from D’s conduct
2) Indirect Stress Situation
When P’s distress is caused because of D’s harm to someone else
i.
Zone of Danger
ii.
Dillon
iii.
Thing
Daley v. La Croix
 Facts: P who has pre-existing neurosis condition witnesses D driver careening off the road, flying threw the
air and taking out a power pole which causes explosion next to P’s house. A year after event, P begins
losing weight, finding house chores difficult and getting nervous and disturbed. Expert witness Doctor of P
15




says that the event triggered an imbalance which lead to these conditions in P. P’s young son is also
affected and now gets nervous but has no physical symptoms and no expert testimony.
Issue1: Can the son recover for emotional distress?
Holding1: No. the son had no physical manifestation of injury and not enough concrete evidence.
Issue 2: Can P recover for emotional distress?
Holding2: Yes. P cannot recover under impact rule because there was nothing that touched P. P cannot
recover under parasitic distress rule because there was no immediate physical injury. Court uses new rule
(case rule) about “definite and objective physical injury produced by result of emotional distress” (this rule
broader than parasitic rule). P’s physical injuries include weight loss, inability to do housework etc. Case
gets remanded to look at issue of whether P here is hypersensitive (thin skull P). Even though P has
existing neurosis condition, P can sue for the amount by which this condition worsened as a result of the
incident.
General Rule: No duty to prevent emotional distress only unless exception applies:
1) Impact
2) Distress causes a definite and objective physical injury
Impact Rule: P can recover for emotional distress if P suffers an impact. Requires only minor touching, does not
even have to result in physical harm. Most jurisdictions do not apply the impact rule.
What is impact: impact can be something very small. Doesn’t have to physically touch the P. D just has to put
something in motion that causes impact to P. Impacts have included: slight blow, electric shock, trivial jolt, dust in
the eye, smoke in the face, or having someone’s horse ‘evacuate his bowels’ onto P’s lap.
Case Rule: “Where a definite and objective physical injury is produced as a result of emotional distress
proximately caused by the D’s negligent conduct, the P in a properly pleaded and proved action may recover in
damages for such physical consequences to himself, notwithstanding the absence of any physical impact upon the
plaintiff at the time of the mental shock.” And D’s standard of conduct is to be measured by the RPUC standard, and
there is no special allowance for egg shell Ps. (instead of emotional distress arising from physical injury, here,
physical injury is arising from emotional distress)
P’s burden of proof: P has the burden of proving that the physical harm or illness was a natural result of the fright
proximately caused by the D’s conduct.
Parasitic Distress Rule: Requires that P suffers some immediate physical injury.
Thing v. La Chusa
 Facts: P mother is too far away to hear or see accident caused when D driver hits her child with his car. 3 rd
party tells P about the accident, and when she sees child lying in the road, she thinks he is dead. P claims
that her emotional injuries as a result of seeing child like that are proximate cause of D;s negligence in
hitting the child.
 Issue: Can P who did not witness the accident recover for emotional distress suffered upon reaching the
scene of the accident?
 Holding: No. P cannot recover because she was not present at time of incident, and only learned about it
after the fact from a 3rd party. P has no “contemporaneous or sensory” perception that accident was going
on which is a prong of the “Dillon” rule. P can’t use parasitic rule because no physical injury to P. This is
indirect distress situation.
Thing Rule: (narrow) (need all 3 prongs) (more predictable result)
P can only recover damages for emotional distress caused by observing the negligently inflicted injury of a 3rd
person if and only if P:
1) Is closely related to the injury victim
2) Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing
injury to the victim
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3) As a result, suffers normal but serious emotional distress beyond that of the average disinterested witness
but below any abnormal response to the circumstances. (not too big, and not too small)
Footnote 10: close relationship = relatives who live together, parents, siblings, children and grandparents of
victim.
Dillon v. Legg
 Facts: P mother and sister of victim infant watch as D negligently drives his car over infant in a crosswalk.
 Issue 1: Can sister recover for emotional distress from witnessing baby sister get hit by car?
 Holding 1: No. Why not?
 Issue 2: Can mother recover for emotional distress from witnessing baby get hit by car?
 Holding 2: Yes. Because mother was in the zone of danger and met 3 Dillon requirements.
Dillon Rule: (broad) (don’t need every prong) (but just prong 3 not enough) (maybe more fair?)
1. Was P located near the scene of the accident? (as opposed to someone who is far away)
2. Did the shock to P result from direct emotional impact upon the P from the sensory and contemporaneous
observance of the accident (see or hear the accident happening?) (as opposed to learning about the accident
later form 3rd party)
3. Were the P and the victim closely related? (did they have something besides a distant relationship)
Eldon v. Sheldon held that cohabitation without formal marriage does not constitute a close enough relationship to
satisfy the Dillon rule. Policy issue: what about gay partners who can’t legally get married, or unmarried parents
with kids, fiancées etc.??
Zone of Danger Rule: P must be near enough to accident to also be put in danger. Unless P himself is actually
threatened with injury, he cannot recover under this rule. (Rule no longer applies in California, some states kept the
rule and added more requirements on.)
Falling Coins Hypo:
 Facts: Mr. Burns wants to make more friends so he starts throwing gold coins off the top of a
building to the people down below. Lenny gets hit in head and suffers serious injury. Carl, who is
standing next to Lenny does not get hit, but sees Lenny get hit.
“Parasitic Injury Rule”
o Lenny can recover for physical injury and any resulting emotional distress under “Parasitic Injury Rule”
because he suffers an immediate physical injury
o Carl is not physically injured, so he cannot recover under the “Parasitic Injury Rule” Carl cold claim either
direct or indirect distress. Carl suffers indirect distress because he saw Lenny getting hurt. But he also
suffers direct stress because he too was in danger of becoming a potential victim, because he was standing
right next to Lenny.
“Zone of Danger Rule”
o Carl can recover under the “Zone of Danger” rule because he was also a potential victim.
“Dillon Rule”
o 1) Carl was near the scene of the accident
o 2) Carl had contemporaneous and sensory observance of the accident
o 3) we don’t know if Carl had a close relationship to Lenny,
Carl can recover with or without the close relationship because the first two prongs are met.
“Thing Rule”
o 1) Carl does not have immediate family relationship to Lenny (so, no b/c need every element)
o 2) Carl is present at the time of the accident
o 3) Carl does not seem to have suffered serious emotional distress as a result of seeing Lenny hurt.
17
Other Hypos:
a) What if Lenny’s dad saw the whole incident on TV on lie news and then 48 hours later had a heart attack?
Can he recover under any rule?
b) What if an unrelated bystander, who never saw Lenny get hurt, and never got hurt herself, started having
recurring nightmares about falling coins? Can she recover under any rule?
C. Breach
U.S v. Carroll Towing
 Facts: D Barge worker leaves to go have a drink when he supposed to be on duty on P’s ship. Ship breaks
loose due to other party’s negligence, but because worker wasn’t present, no one knows that ship gets a
hole, leaks, spills flour cargo and sinks. There is no standard rule to determine when absence of worker will
make ship owner liable for damages caused to cargo and other vessels. The court employs the Learned
Hand Formula.
 Issue: Did the worker breach according to the LH formula?
 Holding: The burden of having a worker on board during daylight hours is very low. The probability of
something happening to an unattended boat, and the likely gravity of injury if something was to happen are
relatively high. So B< PL, so the worker was in breach.

The Learned Hand Formula: If B < P L then there is breach.
B = burden of adequate precaution,
P = probability that some risk will occur if D does not take that precaution,
L = likely gravity of harm that would occur if that risk actually did happen.

B < PL: This test is never given to a jury; it is only to help the judge decide if the case should be given to
the jury.
Lubitz v. Wells
 Facts: D father leaves a golf club in the yard where child son and child playmate P are playing. Son uses
golf club to hit P in the face. Father is sued for not putting club away or warning son. Son is sued for not
warning P that he was swinging club so she could move out of the way.
 Issue 1: Is son liable for breach under the LH formula?
 Holding 1: Burden of warning P is very low. Probability that son will hit P if he does not warn is medium.
Injury resulting if son does hit P with golf club is high. So B<PL so son did breach.
 Issue 2: Is father liable for breach under the LH formula?
 Holding 2: The burden of moving the golf club is very low and the probability of severe injury is high
(B<PL) so the court should find breach for the father, but they do not. Court held that a golf club is not so
obviously and intrinsically dangerous that it was negligent for the father to leave it lying in the yard. So the
LH formula fails here.

LH Formula: Not mathematical in nature, it won’t be correct all the time

Hindsight colors judgment: What actually occurred in the case colors our judgment in hindsight. It is easy
to say being hit with a golf club would create seriously grave injury, but it all depends on how hard the club
was being swung, what type of club it was, and which part of the P’s body it came into contact with.
Blyth v. Birmingham Waterworks
 Facts: D water company puts fire hydrant on sidewalk by P’s house. After 25 years of working just fine,
there is a very unexpected cold snap and the pipes underground break causing flooding inside P’s house.
 Issue: Can D be held liable for pipe that breaks suddenly and unexpectedly under unforeseeably harsh
weather conditions?
18

Holding: According to the LH Formula, D would be liable for breach. But court says D definitely did not
breach. D did not do anything that a RPUC would not have done, and didn’t avoid doing anything a RPUC
would have done. Just because D didn’t prepare for completely surprising bad weather, doesn’t mean D
was negligent, especially when all data from past 25 years show that there is no reason to expect incident.

Past occurrences and patterns: Whether D has breached will depend on factors such as foreseeability of
the accident. In San Francisco, it would be negligent to build a skyscraper that could not withstand
earthquakes. If floods or lightning storms have happened in the past under similar circumstances, or in the
same area, D should know that he is responsible safeguarding against such disasters.
Chicago Railroad v.Krayenbuhl
 Facts: D railroad does not lock its turntable which is located 70 feet from a pathway that children use. P 4
year old child plays on turntable and severs ankle.
 Issue: Is D liable for child’s injury according to the LH Formula?
 Holding: burden of locking the turntable is very low. Probability of a child getting hurt if turntable is not
locked is high because location is right next to children’s path and D knows that kids play there. L is high
too, because the most typical injury that would likely occur would be a very grave one. So B<PL. So D
breached duty to act as reasonable railroad would have. If kid path was 70 miles away instead of 70 feet,
probability would be much lower. Changing any of the variables can yield a different outcome.
1. Who Decides Breach: Rules of Law
- Breach
2 historical approaches to who decides breach: Cardozo and Holms
Approach
CARDOZO rules
(Pokora)
(current standard)
Judge Decides:
Judge is a screen only: judge asks self if
reasonable jury could find breach on given
facts.
if yes, judge decides how to frame the RP
question and case goes to jury
Questions Jury Decides:
Disputed facts (if any)
What would RPUC have done?
Was it ultimately a Breach?
Custom
Was statute violated?
if no possible breach because facts are
undisputed and judge couldn’t expect
different behavior, judge throws case out at
motion stage and never gives to jury.
Does statute apply?
HOLMS rules
(Goodman)
Judge decides if there was Breach and
Sets specific rules of law for jury
Disputed facts (if any)
What did D actually do?
No room for jury to decide breach.
(Neither rule is perfect, but the Cardozo approach is what we use today.)
B & O Railroad v. Goodman
 Facts: P driver was slowly approaching railroad tracks and should have seen the train coming.
 Issue: Did P live up to the RPUC standard?
 Holding: No. Justice Holms says P should have stopped, looked, listened, and gotten out of vehicle to check if
train was approaching. Trial and Appellate courts agree that P should have gotten out of the car, and was
negligent because he didn’t. Supreme Court reverses and Cardozo says that P should NOT get out of the car, but
it is up to a jury to decide what would be reasonable under those particular circumstances.
Holms benefits:
19
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

Predetermined rule, so attorneys know in advance whether to take a case and when to settle. More
predictable outcome every time.
One hard and fast rule. Judicial approach is more economic,
Jury only has a small role if any “judicial efficiency”
Holms Drawbacks:
 A hard and fast Holms type of rule cannot be reasonable all the time without considering external factors.
 Static Holms rule doesn’t make room for new technology.
 Process to modify the static Holms rule would take time, effort, money on the part of the court.
Pokora v. Wabash Railroad Co.
 Facts: P truck driver slowly approaches set of 4 train tracks and can’t see past a line of boxcars on track #1.
P stops and looks, and then proceeds slowly, but once out in the middle of the tracks P’s vehicle is hit by a
train.
 Issue: Was P negligent in slowly proceeding onto tracks after stopping, looking, listening when he couldn’t
see past the boxcars parked on the tracks?
 Holding: No. Cardozo court throws out the Goodman rule requiring drivers to also get out of car and look.
Court says that sometimes this is unreasonable and even more dangerous. P here did what a RPUC would
have done, so P is not negligent. P can sue the D railroad for leaving the boxcars there in the first place.
2.
Who Decides Breach: The Role of Custom
Using Custom: An industry custom can be the deciding factor in breach. But the jury still ultimately decides, and
can go either way. Custom only comes in where the jury would need extra info to determine breach because they
don’t know about the industry. For activities like driving a car, the jury does not need special custom info.
Timarco v. Klein
 Facts: D landlord replaced shower door with regular glass instead of safety glass. P tenant steps out of
shower and glass door shatters on him causing injury. Expert testimony shows undisputed industry custom
that that regular glass on shower doors no longer meets safety requirements, other landlords use safety
glass, and safety glass is required by new safety bulletins.
 Issue: Did D landlord breach by not putting safety glass in the shower door?
 Holding: New trial ordered because judge should not have allowed jury to use the statute.

Custom is not always the rule: just because everyone is doing it doesn’t mean that it is smart. Most
roofers may not use harnesses, but the fact that this is custom does not mean that it is safe or reasonable.

Sometimes the custom is the rule: A driver on a private road where no statute applies can be found in
breach for violating the custom of driving on the left side of the road.

Not every custom will fit every business. Depends on who is making the custom and why (money vs.
safety), how big the business is.
3.
Who Decides Breach: Violation of a Statute
Second Restatement Section 228 A
1) An excused violation of a legislative enactment or an administrative regulation (i.e. statute) is not
negligence.
2) Unless the enactment or regulation (statute) is construed not to permit such excuse, its violation is
excused when:
a) The violation is reasonable because of the actor’s incapacity.
b) He neither knows or should know of the occasion for compliance
c) He is unable after reasonable diligence or care to comply
d) He is confronted by an emergency not due to his own misconduct
e) Compliance would involve a greater risk of harm to the actor or to others.
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Using a statute to determine breach
Osborne v. McMasters
 D pharmacist failed to label a poison bottle and P’s intestate died as a result. There was a statute saying that
all poison must be clearly labeled.
 Issue: Did D pharmacist breach by failing to label the poison?
 Holding: Yes. The court holds that violation of the statute constitutes conclusive evidence of breach per se.
The jury has no room to decide.
Without a Statute:
 Judge would ask himself “did the pharmacy owe a duty of care?” and “what was the standard for a
reasonable pharmacist?” then
 judge would ask self “could a reasonable jury find breach based on these facts?”If yes, then
 jury would decide if there was actually breach based on what they think a reasonable pharmacist would do.
 If there is no statute, then the jury will most likely find breach. Assuming there is no statute, we would
expect result to be yes breach.
With a Statute:
(Statute here is a criminal statute, says that any pharmacist needs to label poison before they give it out. If a druggist
violates the statute then he may be prosecuted. It is a crime to give out poison if you didn’t label the bottle. With no
statute)
 The jury will decide any disputed facts, but judge ultimately decides whether there was any breach. We
have three options when a statute comes up in a civil torts case;
1) don’t admit the statute at all
2) admit the statute, but treat it as custom evidence and let the jury decide
3) don’t give the jury room to come to different conclusion, if you break the statute, you breach
reasonableness and are therefore liable. If statute broken = breach per se.
Martin v. Herzog
 Facts: P buggy driver is driving at night with no lights. D car driver is driving with lights, but on the wrong
side of the yellow line. P and D collide at a bend in the road. There is a statute requiring that drivers have
lights on after dark. But both drivers were negligent in their own way.
 Issue: Did buggy driver breach by not having lights on after dark?
 Holding: Under the Osborne rule, by breaching the statute, the P breached per se. The jury here gets a
larger role than in Osborne, though, because they get to decide whether P’s breach was innocent or
culpable. Also, the rule for P is not as strict. If P had a good excuse for not having his lights on then jury
would decide breach under the RPUC standard. Here, P here had no good reason.
Stachniwicz v. Mar Cam
 Facts: P is injured in a bar fight after D bar owner gives more alcohol to an already intoxicated patron.
Statute precludes bars from giving already drunk customers more alcohol, to allowing drunk customers to
stay, and allowing fights or noisy, disorderly conduct/offensive language etc.
 Issue: Did D bar owner breach because he breached the statute?
 Holding: Case must be retried because disagreement over whether to bring in the statute. Judge names 3
criteria for deciding whether a statute should be brought in (all 3 criteria must be met):
1) Is the P from the group of Ps meant to be protected by the statute?
2) Is the harm suffered the type that was meant to be prevented by the statute?
3) Is violation of the statute “appropriate” in tort situation? (from language of the statute, is it workable?)

Back to the RPUC: “Generally, if the P is not permitted to use the statute to prove the standard of conduct,
the P’s case defaults back to the RPUC standard and may still succeed if the P can prove that the D failed to
act as a RPUC would have acted.
21
Zeni v. Anderson
 Facts: Statute says that pedestrians must walk on road facing traffic. P is walking to work in the snow and
has fallen on the ice before. Rather than risk falling again, she walks on snow path on wrong side of road. P
is hit by D’s car.
 Issue: Is P liable for breach per se for violating the statute?
 Holding: No. P knows that she has violated the statute, but she had a rebuttal for
1) Breach Per Se (Osborne) (this rule is pretty much obsolete)
The strictest rule you can have. Fully takes the breach element out of the jury’s hands, but they
will still have a role in determining causation and result
Good because: juries have no wiggle room
Bad because: imposing liability in every single situation is unreasonable
2) Breach Per Se for Unexcused Violations (Martin) (used today)
More lenient than the Osborne rule. Ruling will be “breach per se” for all violations that do not
have a good excuse. Jury has a role of deciding whether the excuse is a valid one. If jury finds yes,
excuse works, then statute falls out of picture and we go back to the RPUC standard and the jury
decides. If jury says excuse is not ok, then the jury has to find breach. I.e. jury doesn’t have the
full role of deciding whether there was breach, but they do get to decide whether excuse works.
Bottom line: jury must find breach unless there is a good excuse.
3) Rebuttable Presumption OR Prima Facie Breach (Zeni) (used today)
Means there is an assumption that the breach occurred unless the D can come forward and prove
otherwise. The jury gets to decide whether the presumed breach has been rebutted by D. If yes,
then statute falls out and jury decides breach under the RPUC standard. If D does not successfully
rebut, then we go back to breach per se. (very similar to approach 2) Bottom line: jury must find
breach unless there is a rebuttal by D. Rebuttal can mean that D claims P was also negligent.
4) Evidence of Breach (Zeni)
Similar to custom evidence. Does not take the decision away from the jury.
4. Proof of Breach: Direct and Circumstantial Evidence
Big picture question: What does it take to get past the judge’s screen?
Judge is asking self “Do I think that a reasonable jury could find breach here?”
Judge needs consider both direct and circumstantial evidence.
Direct Evidence:
Direct means we need no inference of breach.
 Video cameras capture direct evidence.
 Recorded report made by someone saying that breach happened.
 An eye witness who saw breach happening.
 D actually confesses to breaching
Circumstantial Evidence:
Facts from which breach can be inferred.
Usually not as strong as direct evidence.
22
Case
Banana Peel Cases
Outcome
Direct Evidence
Accident + something
else
Circumstantial
Evidence
Accident + something
else to infer
Goddard
Slipped on RR
platform; Relatively
fresh banana peel;
Many passengers on
train platform
Case dismissed: didn’t
get by judge’s screen.
Judge throws out.
No.
Only evidence is that
incident happened on
D’s property. No
evidence of how or
when peel got there.
No
Evidence of accident
itself not enough.
Anjou
Slipped on RR stairs;
Black, flattened
banana peel; RR must
maintain station
Case to jury: did get
by screen
Joye
Slipped on store floor;
Dark brown, sticky
banana peel; store not
told
Case dismissed: didn’t
get by judge’s screen
No
No.
Can’t tell whether
peel is old or just dirty
because floor is dirty.
Yes
Peel has been there a
long time. Strong
possibility there was
time to do something
about it. (Fault)
Breach that peel
wasn’t picked up
sooner
Not Enough.
No evidence to show
that D put peel on
floor or knew it was
there.
Res Ipsa Loquitur
Last ditch effort
before case is thrown
out.
No.
To use RIL, it must be
strong likelihood that
D is responsible, here
it is strong likelihood
that other people are
responsible
Not Needed
No
Goddard v.Boston maine Railroad
Anjou v. Boston Railroad
5.
Proof of Breach: Res Ipsa Loquitur (RIL)
Res Ipsa Loquitur: “The Thing Speaks for Itself”






A last ditch effort to have the case go to a jury before getting thrown out
Instead of P having the burden to prove that breach DID happen, D has burden to prove that breach
DIDN’T happen.
P can get past judge’s screen without showing any direct or circumstantial evidence
Doctrine comes in under unusual circumstances. Things that do not normally occur. (things flying out of
windows etc.)
Idea is: We don’t know exactly what went wrong, but something must have or this event would never have
happened.
Judge decides whether case invokes RIL and then sends case to jury who must find breach unless D proves
otherwise. Like in custom evidence, jury still gets to decide breach. Judge will ask self “Do I think that
breach went on here?” If his answer is “Duh!” then case is good candidate for RIL.

Use RIL if judge decides that reasonable jury could determine that:
1) The event would doesn’t ordinarily occur without somebody’s breach
2) The breach is likely attributable to D (ex. D has exclusive control over the instrumentality etc.)
(both requirements must be met)

If the 2 requirements are not met, then case goes to no breach. D is off the hook
23


If the 2 requirements ARE met, case goes to jury for question of breach. Then 2 approaches:
a) Jury will likely use either rebuttable presumption or prima facie breach.
b) RIL is only some evidence of breach, but jury could still go either way on the breach decision. (most
common approach)
Cases only get to RIL if they are weak on evidence to begin with, so we don’t want to make it too easy for
the P by making RIL strong proof of breach like a statute.
Byrne v. Boadle
 Facts: P pedestrian is walking by D’s store when a flour barrel falls out of upstairs window and lands on P
knocking P down and injuring him. The event is the only evidence P gives.
 Issue: Can D store owner be held liable based solely on the facts of the accident?
 Holding: Yes. (based on RIL) There is no evidence about what D did wrong, just the evidence of the
incident itself. D must have done something wrong because flour barrels don’t just go flying out of
windows. The fact that barrel fell out the window is prima facie evidence of breach.
Larson v. St. Francis Hotel
 Facts: P pedestrian is walking on sidewalk near D’s hotel. A stuffed armchair comes flying out the window
and hits P in the head knocking him unconscious. No evidence of why or how chair came out the window.
Only evidence is the chair itself.
 Issue: Can RIL doctrine be invoked to determine possibility of breach?
 Holding: No. This case fails RIL on the second prong. Prong 1 is met because chairs do not ordinarily fly
out of windows onto sidewalks. Prong 2 not met because breach is not likely attributable to the D. It could
have been any number of people who threw the chair. It is equally likely that a hotel guest threw the chair,
and not a hotel owner or employee. Different than Byrne v. Boadle because of the nature of the business.
Hotels by nature have many unaffiliated people inside. Flour making shops usually just have owner and
employees inside. Hotel could have had other breaches: not putting bars on windows, having too big of
windows etc. Always look for additional breaches that could have contributed. RIL does not apply so case
dismissed.

Likelihood Judgment: While it IS possible that trespasser snuck into the building and threw the object
from the window, this is NOT the most likely scenario for why breach happened.
McDougald v. Perry
 Facts: P is driving behind D’s truck. D drives over railroad tracks and spare tire underneath truck is
dislodged, falls out and hits P’s windshield. D said he checked before leaving to make sure the tire was
secure in it’s cradle with a chain.
 Issue: Can RIL come in as evidence of breach?
 Holding: Yes. Element 1 is met because tires just don’t fly off of trucks. Element 2 is met because D had
exclusive control of truck, so breach was likely attributable to D. It is possible that someone snuck up at a
gas station and unhooked the chain, but this is not the most likely scenario for why the tire fell out.



Car kicking up a rock: Not enough to invoke RIL. Doesn’t meet prong one because this sort of thing
happens all the time.
Multiple Ds
Collision between 2 or more vehicles : Does not invoke RIL. Prong 2 not met because breach could be
attributable to either driver. RIL assumes no other evidence of breach, so court would have no idea which
driver caused the accident. Both are equally likely. Court cant show breach is likely attributable to one D so
all are dismissed.
Bystander hit by car after collision: No RIL. See above. P not putting trust in hands of the drivers.
Ybarra v. Spangard
24


Facts: P patient goes in for appendectomy and when anesthesia wears off P has severe pain and paralysis in
right arm and shoulder. Surgery was performed by multiple doctors and nurses working collaboratively.
Issue: Can RIL be invoked to determine breach of multiple doctor and nurses for unexpected surgical result
when patient was unconscious?
Holding: Yes. A group of doctors and nurses working on the same surgery are working together as a unit,
unlike the multiple drivers in the car example. A patient under anesthesia has no recourse because he was
unconscious. P put his trust completely in the doctor’s hands. All medical staff involved are held
responsible. This was a stretch, but it was done for good reason. (P trying to check off breach)

Jointly Liable: Because no one D can be held liable, ALL Ds are held liable.

Policy Issue: The two options in a medical RIL situation are:
a) Hold all doctors strictly liable for any harm caused in any surgery (P always recovers), Not fair to
Doctors. Plus this would increase insurance costs, or
b) Never allow a patient under anesthesia recover because P can’t show breach. Not fair to Patients.
The court wants to stretch RIL here to provide some kind of happy medium.

Incentive to rat others out: In the car collision example, each driver would have an incentive to try to
prove that the other drivers were liable for breach so that he could save himself. There is no incentive to
protect others. Here, the medical professionals are working cooperatively and there is less incentive to rat
out a co-worker because of the consequences it may have on one’s career. “Incentive for disclosure is
different in the two cases”

Presence of liable party: In Ybarra, the court knows that the breaching party is there somewhere because
otherwise the surgery could not have gone wrong. The person who breached must have had contact with
the patient. In the car example, the court has no idea if the breaching party is among the Ds. The car
accident could have occurred because of a breach by a mechanic, a child running into the road etc.



1.
D. Causation
There must be a causal link between the D’s breach and the P’s damage.
P must prove BOTH Actual and Proximate cause.
1.
“Actual Cause” or But-For Cause
a) A factual assessment.
2.
“Proximate Cause” or Legal Cause
a) More of a policy determination.
b) Can occur through unforeseeable chain of events.
c) D won’t be held liable for every harm he causes, the court has to draw the line
somewhere.
d) A subset of actual cause
ACTUAL CAUSE
Actual
Prox.
P
wins
P loses.
P loses
25
Perkins v. Texas Railroad
 Facts: P driver’s truck hit by D train that is going 12 mph over speed limit. P does not see or hear any of the
warning signs that the train is coming. D train tries to stop but can’t in time.
 Issue: Is the excessive speed of D train the cause of collision with P?
 Holding: No. In order to be an actual cause of the harm, there needs to be “but for causation.” (but for the
train’s excessive speed, the accident would not have happened). Here, but for (actual) cause cannot be
proven, because it is likely that accident would have happened whether D was speeding or not. Saying that
the collision “might not have happened” without D’s breach is not enough. P failed to show that the D’s
breach was the “cause in fact” or “actual cause” of the accident.


Both parties negligent: One party’s negligence does not cancel out the other party’s negligence.
Ask did D’s BREACH cause the damage: Not “did D”s conduct cause the damage.
But For Causation Test for Actual Cause.
D’s Specific Breach
Actual Outcome with
D’s breach




Hypothetical outcome
without D’s breach
“But For” Causation
(Yes or No?)
D1’s breach = X
A
A
NO because same result
D2’s breach = Y
A
B
YES because different
If columns 2 and 3 are different: Then there is “but for” cause
You can have breach per se of a statute that doesn’t actually cause the harm. So D not liable
Think “what is the most likely outcome?”
If statute falls out in deciding “but for” cause, then the question goes back to the jury (may be harder to
prove) If statute drops out, then jury won’t even hear about the statute.
Hill v. Edmonds
 Facts: D driver left his tractor trailer in the middle of the road at night with no lights. P driver saw trailer in
time to avoid it, but failed to swerve out of the way. (Both parties are equally negligent)
 Issue: Which party will be liable when both breaches are necessary causes of the harm?
 Holding: Both P and D will be held equally liable because both P and D were actual cause of harm.

“Multiple Necessary Causes”: When both parties breaches are necessary to cause the harm that happened.
Both parties will have to pay damages (but there can be no double recovery)
Herskovitz v. Group Health
 Facts: P patient has a less than 50% chance of survival. P goes to D Doctor who fails to diagnose P with
lung cancer. Lung cancer caused an additional 14% decrease in P’s chances of survival.
 Issue: Is D doctor liable for causing a decrease in P patient’s life expectancy?
 Holding: Court decides that the decrease in ‘lost chance of survival’ (39% to 25%) is substantial enough to
give the question to the jury. Court could have gotten around but for causation by saying that actual cause
is not the fact that P died, but the fact that P died earlier than he would have without the D’s breach.
Instead, though, court just throws but for test out altogether. Instead, the court uses the “substantial factor
test” from Hamil. If the P can prove that the D’s breach increased his risk of harm, then that is enough to
get the question to the jury. Dissent wants to use the traditional ‘but for cause’ test which would throw the
case out. Concurrence wants to use ‘but for’ test and look at the actual harm as P’s decreased chance of
survival, not P’s death.
Opinion
1. Majority
Test
Was D’s breach a substantial
factor in increasing P’s harm?
Answer
Yes
Result
Causation decision goes to
the jury.
26
Opinion
2.
Concurring
3.
Dissenting
D’s Breach
Outcome w/
D’s breach
Failing to
diagnose
“loss of
chance”
Failing to
diagnose
P dies sooner
P dies
Outcome w/
out D’s
breach
P dies later
(loss of
chance) (145
damages)
P dies
(all or nothing
damages)
But For
Cause
Result
Yes
Causation
decision
should go to
jury
Case should
be thrown
out. (but for,
No

Substantial Factor Test from Hamil: (An easier test, used by Majority here) Once a P has demonstrated
that the D’s acts or omissions have increased the risk of harm to another, such evidence furnishes the basis
for the jury to make a determination as to whether such increased risk was in turn a substantial factor in
bringing about the resulting harm”

Substantial Factor Test: should be used instead of the but for test in cases involving “concurrent,
independent causes”
“Substantial”: “’Substantial’ is used to denote the fact that the D’s conduct has such an effect in
producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense,
in which there always lurks the idea of responsibility, rather than the so-called philosophical sense, which
includes every one of the great number of events without which the happening would not have occurred.”


Not all 14% decreases have the same result: drop in life expectancy from 59%-45% (P may live), drop
from 14%-0% (P most likely dies).
Multiple Defendants:
Anderson v. Minneapolis Railroad
 Facts: D railroad causes a forest fire that merges with another forest fire from an unknown origin and both
fires together burn P’s property.
 Issue: Is D’s fire an actual cause of destruction to P’s land?
 Holding: No. There is no but-for cause even if other fire-starter could be identified. Both D1 and D2 should
be jointly and severally liable for the damage to P’s land. Since D2 cannot be found, then D 1 will have to
pay total damages to P. Court here uses the substantial factor test. The but-for test would cause the case to
get thrown out even if other D could be found. Neither D’s breach is the actual cause of harm caused to P.
D/ But For Test
D’s breach
D1 Railroad
Starts fire
Result w/ out
breach
P’s land burned
D2 Unidentified
fire-starter
Starts other fire
P’s land burned
Result w/ breach
But For Cause?
P’s land burned
anyway by D2’s
fire.
P’s land burned
anyway by D1’s
fire.
No.
No.
Court is uncomfortable with this result, so they use the ‘substantial factor test.’ So jury decides “Was D
railroad’s breach a substantial factor in causing harm to P’s land? Yes. So D railroad pays.
27

Reasoning: The P did not do anything wrong, and both D’s did. The other fire shouldn’t matter
because D’s fire alone would have destroyed P’s land. (Multiple sufficient causes)
Summers v. Tice
 Facts: Both Ds and P are in a hunting party together. There is a quail next to P and both D’s negligently fire
at the same moment trying to hit the bird. One of the two bullets hits P in the eye. There is no telling which
D’s bullet it was that hit P. (one single cause, but 2 Ds are equally likely to have been the cause.
 Issue: Which D should be liable when they both have a 50% chance of having hit P?
 Holding: Both D’s were acting in concert (NO), so both are held liable (as in Ybarra v. Spangard). Burden
of proof should go to both Ds. Unless one D can prove that it was not his bullet, both Ds will be held liable.
Court does not use the but-for cause test, because this would result in the case getting thrown out and the P
getting nothing.
D/Test
D’s Breach
D hunter #1
Negligently
shooting
Negligently
shooting
D hunter #2
Outcome w/
breach
P hit in the eye
P hit in the eye
Outcome w/ out
breach
P hit in the eye
anyway by D2
P hit in the eye
anyway by D1
But-For Cause
No.
No.
Court is uncomfortable with this result so they use the ‘substantial factor test.’ If jury can find that both Ds
breaches are substantial factors in the harm to P, then both Ds will have to pay.

Policy issue: Court is ok with making both Ds pay even though they know that one of the Ds is 100%
innocent. Injury is very severe, and it is better to have both Ds pay something than neither pay anything
and P left high and dry with a missing eye. 
Actual Cause:
“But-For Test: (Causation)
Exceptions:
a) Substantial Factor Test
b) Burden-Shifting (All Ds liable unless rebuttal) ????
Sindell v. Abbot Labs
 Facts: P develops cancer as a result of her mother taking DES pill when pregnant. P sues D 5 DES
manufacturers, but there are still at least 195 other DES manufacturing companies out there that are not
named as Ds. There is no way to tell which company actually manufactured the DES pill that P’s mother
took.
 Issue1: Can Ds be held jointly liable when not all possibly responsible Ds are even named?
 Holding 1: No. Court is hesitant to hold all named Ds liable because it is possible that the correct D is not
even a named D in the lawsuit. Court moves away from ‘but-for’ test, but not all the way to ‘burdenshifting.’ Courts do not want to use the % market share rule because first of all, they don’t even know if
correct D is present. Second, bigger companies will be held more liable and it is possible they didn’t even
produce the one pill that P’s mother took. Plus, % market share test is very difficult to decide because there
are so many factors to decide.

% Market Share liability: problematic and unfair because it is difficult to define market shares, what
point in time should be measured at etc.

Multiple necessary causes: Go through each cause individually to determine if there is but-for cause. If
there is breach with one alone, then maybe not MNC. (tractor in the road case)
2.
PROXIMATE CAUSE
28

Assuming that P has already shown Actual Cause, the court will then decide whether D’s breach was also
the Proximate Cause of the harm caused to P.

The line needs to be drawn somewhere. P cannot be held liable for every single harm his breach was the
actual cause of. The line of dominos would get too long.

Even if actual cause can be traced all the way back to the D’s breach, sometime s the domino way down
the line seems too remote and far-removed for D to be held liable. You can’t say everything you do is your
mom’s fault just because she is an actual cause of you being born.

Imposing liability harms that are for far-removed from D’s breach doesn’t encourage people to ac more
reasonably or change their bad behavior.

Some dominos in the chain are out of P’s control.

Purpose of Proximate Cause is to pull people out of the domino chain who are more culpable than the
original breacher.

Proximate Cause is a policy decision. It is a fuzzy line drawn between when breachers that are actual cause
will be held liable and when not.

Proximate Cause has 2 strands:
a) Directness Strand (farther away in time or geography = more remote) (hindsight)
b) Foreseeability Strand (how foreseeable was the damage?) (foresight)
Ryan v. N.Y. Central
 Facts: D railroad sparks fire on P’s land that burns P’s woodshed, house and neighbor’s house.
 Issue: How far down the domino chain will D railroad be liable?
 Holding: D is responsible for burning P’s woodshed but not P’s house or neighbor’s house. D’s sparks were
actual cause of all the damage, but court draws the line of proximate cause of burning the woodshed. Court
says that it is not natural or expected that the fire would also burn the houses. This case hinged on the
directness strand. Court ruled that harm done 130 miles away was too remote to recover for.

Fire cases: Important to know that the court is willing to draw the line somewhere.
Polemis v. Furness
 Facts: D worker is unloading flammable petrol cargo from P ship owner’s ship. D negligently drops a board
which causes a spark when it lands which causes petrol fumes to ignite, which causes entire ship to
explode.
 Issue: Is the explosion a proximate cause of D’s negligence in dropping the board?
 Holding: Yes. Directness strand is met. It is enough to show that it was negligent to drop the board and that
doing so could foreseeably harm. The exact harm that happens does not have to be foreseen. Harm caused
was not remote in time or geography, it happened right then and there. It is foreseeable that dropping a
board could hurt someone or damage something, but the type of harm (the explosion) is unforeseeable.
Harm was direct but type of harm was not foreseeable. So D is liable for actual cause but not proximate
cause.
Directness
Proximate Cause
Foreseeability (at moment D decided to act)
o unforeseeable type of harm [D off the hook? probably yes]
o
unforeseeable plaintiff [D off the hook? likely yes]
o
unforeseeable degree of harm [ D off the hook? likely no]
29
o


unforeseeable manner of harm[D off the hook? probably no]
P will want to move case DOWN on the continuum and talk in very GENERAL terms
D will want to move cases UP on the continuum and talk in very SPECIFIC terms
Wagon Mound 1
 Facts: D freighter pours furnace oil into the ocean 600 ft. from P’s wharf. 2 ½ days later, P then drops
molten metal into ocean which ignites oil-soaked cotton particles on the surface of the water.
 Issue: are Ds liable for causing the fire by negligently pouring oil into the ocean near P’s wharf?
 Holding: No. Court determines that it is not foreseeable that a reasonable freight worker could have known
that oil on the surface could ignite. Court says strand 2 foreseeability is not met, but proximate cause would
also fail on strand 1 directness. The fire happened almost 3 days later, and in order for the fire to occur, it
was necessary that a 3rd party dropped the cotton debris into the water as well, so not direct. Court uses
foreseeability over directness. Why? (turns out later that P knew they were contributing to the possibility of
fire when they poured the molten metal in the water, but they can’t admit this because then they would
have been foreseeable cause of the fire. Back in these days contributing to harm = no recovery)
Wagon Mound 2
 Facts: D freighter pours oil furnace oil into the harbor which reacts with wharf’s molten metal and catches
P’s boats on fire. (same facts as above)
 Issue: Is D liable for causing the harm to P’s boats?
 Holding: Yes. Actual cause and proximate cause both get checked off. Court says that the D engineer
should have foreseeably known that pouring oil into the water would cause a fire. P in this case does not
have to get over the hurdle of being a contributing cause, so P recovers.
Polemis
mis
Actual
Cause
WM1
Ryan
Prox.
Cause
WM2
30
Examples of D liable for Actual but not Proximate Cause:
1.
2.
3.
4.
Type
Plaintiff
Degree
Manner

D serves rotten shrimp to P  P throws up  3rd party slips and falls on P’s vomit.

D drives fast in snow  creates snow whirl  blinds other driver behind D.

D designs defective dog collar  P’s dog breaks free  P’s dog bites 3rd party after escaping.

D gas station lets customer pump gas with engine running  car rolls back  car hits P.

D builder improperly welds hook to ceiling  P climbs up to fix hook  P falls of ladder

Manager fails to post sign that pond water carries diseases  P swims  P drowns

D day care lets baby eat rat poison  poison causes dark bruising  CPS takes baby because child abuse (type)

Rat example:

Bartolone v. Jeckovich
 Facts: P gets into car collision and suffers minor physical injuries. P has pre-existing paranoid
schizophrenic condition which he is usually able to keep under control through going to the gym. After car
accident, P is hospitalized and loses all motivation to go to gym, gets disillusioned, hears voices etc.
 Issue: Is D who negligently causes car accident liable not only for physical injury caused to P but also flareup of P’s preexisting mental condition?
 Holding: Yes. D must take P as he finds him. D cannot say “well P may have suffered same result on his
own later anyhow” D is liable for actual cause and proximate cause via foreseeability strand because
physical and psychological harm is foreseeable for victim in car accident. Court says only degree of harm is
unforeseeable, so D is still on the hook.
 Talk about eggshell P
Palsgraf v. Long Island Railroad
 Facts: Man tries to jump aboard moving train. D guard tries to help him and dislodges unmarked package
from under man’s arm. Package happens to contain fireworks which hit the ground and explode causing
scales to fall which injure P who is standing a short distance away.
 Issue: Is D guard liable for causing injury to P?
 Holding: No. D doesn’t even have a duty to P so there can be no breach and we don’t even get to causation.
Cardozo says the person injured was an unforeseeable P because she was not inside the orbit of danger and
therefore not inside the orbit of duty either. This situation has a very small orbit of danger/duty. In dissent,
Andrews says there is no such thing as an unforeseeable P because duty extends to society at large. The
Andrews approach is winning today.



Under Cardozo: unforeseeable P = duty issue, so judge makes decision.
Under Andrews: unforeseeable P = proximate cause issue, so jury makes the decision.
Today, we follow Andrews: unforeseeable P is treated as a proximate cause issue, and not a duty issue, so
jury gets to decide.
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Intervening and Superseding Causes:
Intervening:
A descriptive term, not a legal conclusion. Describes any event that takes place between D’s breach and harm to P.
Not all intervening causes will break the chain of causation. In other words, not all intervening causes will make it
so D is not liable for proximate cause.
Superseding:
A legal conclusion. Means that the chain of causation will be broken and as a result there will be no liability to D
because no proximate cause. A superseding cause cuts across both directness and foreseeability. If an event is too
indirect, then it may be a superseding cause. If an event is too unforeseeable, then it might be a superseding cause.
In other words, if direct/foreseeable strand(s) fail(s)  look to see if superseding cause.
Main Exam Goal: Look at the set of facts. See if proximate cause is an easy yes or an easy no. If it falls in the maybe
area, then you should know how to argue both sides for whether there is proximate cause.
Derdiarian v. Felix
 Facts: D1 construction company fails to but up barrier around road work site. P buts kettle of boiling
enamel in wrong place. D2 passes out while driving and careens onto job site hitting P who gets covered
with hot enamel.
 Issue 1: Is D1 contractor liable for causing injury to P?
 Holding 1: Yes. The type of harm that a barrier would have guarded against is exactly the type of harm that
happened when D1 failed to put up barrier. That is, the possibility that a car would drive onto job site and
injure a worker, and this is just what happened.
 Issue 2: Is D2 driver liable for causing injury to P?
 Holding 2: Yes. D2’s breach was also actual and proximate cause of harm to P. so both D1 and D2 are held
jointly and severally liable and will be responsible to jointly cover the full amount owed to P. Court holds
that the P’s behavior only affected the degree of harm. Both D1 and D2’s breaches are necessary to cause
harm to P. D2 did not act as a RPUC.

A P’s own conduct can constitute an intervening cause that breaks the causal connection between D’s
breach and P’s injury. However, in order to be a superseding cause, P’s conduct must e more than
contributory negligence that would be relevant in apportioning negligent conduct.

D can’t argue that something was a superseding cause if it happened before D’s breach.

Courts will usually assess proximate cause via the foreseeability strand because they are more comfortable
judging foresight. Directness strand uses hindsight which is too easy for the jury to manipulate by saying
what D should have done.
Examples:
D1 doesn’t barrier  D2 drives up and hits P  P goes to hospital  Earthquake  P concussion from falling obj.
D1 is actual cause of P’s concussion because but for D1’s breach, P would not be in hospital in the first place.
Earthquake is superseding cause which cuts off liability of D1 as far as the concussion only. If hospital was not
negligent in making object fall, then there is no breach by hospital, so hospital not liable for concussion.
D1 doesn’t put barrier  D2 hits P  P goes to hospital  Doctor uses non-sterile tools  P gets infection
D1’s breach is the actual cause of P’s infection because but for D1’s breach, P would not be in the hospital. The
doctor is breaching by using non-sterile equipment. But, D1 CANNOT argue that Doctor’s breach is a superseding
cause because Doctors causing infection in hospitals is a foreseeable breach. So D1 and D2 and Doctor are all
jointly and severally liable for P’s infection.
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D1 doesn’t put barrier  D2 hits P  P goes to hospital  Dr. intentionally exposes P to SARS  P gets SARS
D1 and D2 are actual causes of P getting SARS. But it is not foreseeable at the time of either of their breaches that a
doctor would intentionally give the P SARS. Negligent behavior could be foreseeable, but doctor performing a
intentional malicious and or criminal act is not foreseeable so it does break the causal chain.

When intentional malicious or criminal behavior IS foreseeable, then it will NOT break the causal chain.
Examples: Yes criminal behavior is foreseeable so No break in causal chain.

D is by contract or otherwise under a duty to protect P from criminal misconduct and fails to do so.

D’s affirmative act destroys a protection that P has placed around his person or property to guard against
crime.

D brings into association with P someone he knows or should know is peculiarly likely to commit crime
under the circumstances thus creating a recognizable unreasonable risk that he will do so.

D has taken custody of a person of dangerous criminal tendencies and fails to restrain him.
McCoy v. American Suzuki
 Facts: Defective car made by D company starts to tip over. Driver swerves and passenger grabs the wheel.
P pulls over to rescue people in car. sheriff comes to help and tells P to take flares and set them on the road.
Sheriff helps people get to ambulance and then leaves P alone. Hit and run driver hits P as he is walking
back to car.
 Issue 1: Should actions of driver and passenger be considered superseding causes that should cut off
liability of the breaching car manufacturer?
 Holding 1: No. It is foreseeable to D manufacturer when they put a defective car on the market that when it
starts to tip over, the driver and passenger will freak out and swerve/grab steering wheel.
 Issue 2: Is P rescuer himself a superseding cause that would take liability away from D car company?
 Holding 2: No. The Rescuer Doctrine says that it should be foreseeable that rescuers will stop to help in
this type of situation.
 Issue 3: Is the sheriff leaving the scene before P is safely back in his car a superseding cause?
 Holding 3: No. D car manufacturer cannot say that the sheriff’s behavior breaks the chain of causation.
There is no actual cause between the sheriff’s breach (leaving early) and the injury caused to P from the hit
and run. If there is no actual cause, then court cannot analyze proximate cause.
 Issue 4: Is the hit and run driver a superseding cause that would take liability away from the D car
company?
 Holding 4: Yes. Unforeseeable type of harm? Unforeseeable P?
The Rescuer Doctrine: (need all 4 prongs)
It is foreseeable that a rescuer will come.
To achieve rescuer status, one must demonstrate: D was negligent to victim and:
1) D’s negligence caused peril or appearance of to the victim
2) Peril or appearance of peril was imminent
3) A reasonably prudent person would have concluded that peril or appearance of peril existed and
4) The rescuer acted with reasonable care in effectuating the rescue.
Yun v. Ford
 Facts: D tire rack manufacturer made a defective rack. P is driving along when rack breaks and rack and
old spare tire fall off of van. P safely pulls over and stops. P’s passenger gets out of van, crosses two lanes
on road and retrieves tire and rack. When walking back, passenger is hit by oncoming car and dies.
 Issue: Is rack manufacturer’s breach in making the defective rack a proximate cause of passenger’s death?
33






Holding (Majority): It was dark and rainy at the time and passenger was insane to get out of a safely parked
car and run across two lanes of traffic to retrieve a broken rack and a worthless bald tire. So passenger
jumping out was a superseding cause and liability of original D should be cut off.
Holding (Dissent): The traffic was very light and visibility was very good at the time. Passenger was not
crazy to try to get the rack and tire. So passenger jumping out is not a superseding cause and D should still
be liable.
Reasoning: The two opinions disagree about the facts, and it makes a big difference how case is described
when trying to determine superseding cause. The majority describes the facts very specifically (rules for D)
and the dissent describes very generally (rules for P).
E. Damage
P must prove that actual damage occurred in order to have a claim.
There must be tangible harm to person or property. (burned house, tree cut down, broken laptop, broken
arm etc.) OR
Physical injury plus “parasitic distress” means that P could likely recover for emo. Damage too.
If distress only, generally no recovery. If distress only, go back to the duty issue to discuss.
F.
Defenses to a Negligence Claim
“Assuming that D can also prove all elements of negligence against P…”
The harm sued upon in a defense must be the same harm alleged in the original suit.
“Yes, but….”
Contributory Negligence
“But he started it” or “But P was also negligent”
If D, B, C, D can be proven against D, then turn it around and try to prove D, B, C, D against the P. If this works,
then recovery is barred, P can’t recover.
Butterfield v. Forrester
 Facts: Both parties were negligent. P was riding horse too fast. D left a pole laying in the middle of the
road. Both breaches are actual and proximate cause of injury to P.
 Issue: Can P recover in a Contributory Negligence jx when P was also lible for breach?
 Holding: No.
 Reasoning: Because this is a strict Contributory Negligence jx., P cannot recover for anything because P
was also negligent.
HELD: As long as D can prove elements of negligence (D,B,C,D) back at P, then P can recover NOTHING (Pro D)
All or nothing recovery
Strict Contributory Negligence Jurisdiction:
PROS
“Clean Hands” P shouldn’t be part of the cause.
More incentive for P to take reasonable care
Rule is clear and efficient. It would be too difficult to
allocate culpability.
P should be held to the same RPUC as everyone else, if
P is negligent, then P shouldn’t recover.
CONS
P suffered at least in part because of D’s negligence, so
P should get something
Ps wont necessarily know the rule or what reasonable
care means.
Rule doesn’t consider proportionality of harm. What if
P were only 1% culpable? Still no recovery? = not fair
Rule puts a higher standard on P than on D.
Rule really favors D. if P drives 1 mph over the speed
limit then the whole case gets thrown out. Too extreme.
Cripples the But-for analysis.
If other D is also at fault, costs are split, but if P is at
fault, case thrown out. Not fair to P.
Last Clear Chance
A transitory doctrine
34
Did D have the last clear chance to prevent the harm?
All or nothing recovery
Davies v. Mann
 Facts: Both parties are at fault. P left donkey on side of road of the road with his feed tied together. D drove
his carriage too fast down the road.
 Issue: Can P who is also negligent recover in a contributory negligence jx?
 Holding: Yes. Because there is an exception that applies.
 Reasoning: Exception = “last clear chance” doctrine. Under standard contributory negligence, P cannot
recover because P also negligent. However, Ct here says that there is an exception because D had the last
clear chance to prevent the harm to P. P recovers the full price of the donkey. (Party with last clear chance
must have actually had the opportunity to prevent the harm)
Last Clear Chance Exception:
PRO
Rule doesn’t fix the problem, but it is a step better
than strict contributory negligence
CON
Rule seems worse because it is even more
arbitrary than contr. negl. Depends on nothing but
timing. Whoever’s breach happened first is off
scott free.
Comparative Negligence
The doctrine that the majority of states follow some form of
2 forms:
1. Pure Comparative Negligence
Means that P and D will split the difference of harm.
If P was 10% culpable and D was 90% culpable, then P will pay 10% to D and D will pay 90% to P.
In other words, if D is 90% liable, then D will only recover for 10%.
50% (P’s damages must be less than or equal to D’s for P
to recover)
2.
Modified Comparative Negligence
49% (P’s damages must be less than D’s for P to recover)

In jx that uses modified comp. negl., the damages will be calculated the same way they are in a pure jx,
but there are a few more rules.
McIntire v. Balentine
 Facts: Both P and D are liable for breach. P was drunk driving and D was speeding. Both P and D were the
actual and proximate cause of the resulting harm.
 Issue: Can a P who is also liable recover in a Comparative Negligence jx?
 Holding: Yes. Court goes with a modified comparative negligence rule.
 Reasoning: Court uses the 50% rule. If D’s negligence is 50% or higher, then P can recover. In other words,
if D’s negligence is greater than or equal to P’s negligence, then P can recover. P can even recover if P is
50% negligent.
35
PRO
∆P
PRO
1.
Contributory Negligence (∆ pays $0)
2.
3.
Modified Comparative Negligence 49% (∏ will recover nothing if harm was 50/50)
Modified Comparative Negligence 50% ( ∏ will recover nothing if ∏ can’t meet threshold)
4.
Pure Comparative Negligence (∆ pays a %, so ∏ will recover something if ∏ is not 100% liable.)
PRO ∏


CON 49%:
Juries like to split harm 50/50, so this is fine until you get to a 40% jx, and then P will not be able to
recover anything.
CON PURE:
It is hard to divvy up harm, like comparing apples and oranges
Homer v. Vending Machine Co.
 Facts: Homer is in a hospital at a vending machine. His snack doesn’t fall down, so he shakes the machine
and it topples over on top of him. Both parties here are negligent. Homer for shaking the machine, and the
Co. for not tying down the machine.
 Issue: What defenses to negligence can Homer successfully raise?
 “Last Clear Chance”
Homer can’t use “last clear chance” because there was nothing the vending machine co. could have
done to stop him.

“Contributory Negligence”
Homer can’t recover anything under a contr. negl. jx because Homer was also negligent

“Pure Comparative Negligence”

∏ Homer
∆ Vending Co.
PURE Jx
25% liable 
60%

50%

75% liable
40%
50%
∏ gets 75% recovery
∏ gets 40%
∏ gets 50% (∏ = ∆ IS OK)
∆ Vending Co.
49% Jx
25% liable
40%
50%
∏ gets 75% recovery
∏ gets 0% (∏ > ∆)
∏ gets 0% (∏ = ∆ NOT OK )
“49% Modified Jurisdiction”
∏ Homer
25% liable 
60%

50%

36

“50% Modified Jurisdiction”
∏ Homer
25% liable 
60%

50%

∆ Vending Co.
50% Jx
25% liable
40%
50%
∏ gets 75% recovery
∏ gets 0% (∏ > ∆)
∏ gets 50% (∏ = ∆ IS OK)
Joint and Several Liability in Defenses


Recovering party can never doubly recover
If one liable D is bankrupt or has fled the country, then the other liable D is solely liable to pay both
shares.
Homer v. Vending Machine Co.
Homer = 10% liable
D1 Vending Co. = 60% liable
D2 Hospital = 30% liable
We are in a 50% modified jx.
Parties/ Liability
∏ Homer = 10% liable
∆1 Vending Co. = 60% liable
∆2 Hospital = 30% liable

Joint and Several Jx.
Not J & S Jx
∆1 and ∆ 2 J & S liable for
90%
∆1 and ∆ 2 J & S liable for
90%
∆1 will pay 60%
∆ 2 will pay 30%
This is a 50% modified jx. Homer was only 10% liable. So, compare P and Ds and see if P was equal
to or less liable than the Ds. The question is: Do you compare P to one D at a time, or all Ds together/
Homer v. Vending Machine Co. / Homer v. Hospital
Homer = 30% liable
D1 Vending Co. = 60% liable
D2 Hospital = 10% liable
Assume 50% Modified Jx
Compare ∏ to all ∆s Combined
Compare ∏ to each ∆ one by one.
J & S Jx
∆1 and ∆2 J & S liable
for 70% together
Not J & S Jx
60%
J & S Jx
∆2 falls out b/c ∆2 is less
liable than ∏
Not J & S Jx
“
∆1 and ∆2 J & S liable
for 70% together
10%
“
“


Analysis
1st Question: Are we in a Jx that compares Ds altogether or one at a time?
2nd Question: Are we in a Jx that uses J & S liability?
If comparing Ds one by one, as long as P is more liable than each D, P will get nothing in a 40% or
50% jx.. (ie: if P is 20% liable and 3 Ds are 19.3% liable, then P cant recover)
37






Think: Is J & S liability kept or thrown out?
In 49% Jx., P’s negligence must be less than D’s.
If P’s negligence is less than each D’s, then each D will fall out and P will get nothing (if we are
comparing one by one)
If one D falls out, his share will be broken up among the other remaining D’s pro rata. (divided equally
among them)
Assumption of the Risk (A o R)
D is pointing out P’s own behavior
There are 2 types of A or R
1. Expressed AoR
2. Implied AoR
Question: What does D need to prove for each?
Expressed AoR:
1. Whether the risk that injured the P fell within the unambiguous terms of the agreement…
2. Whether the K itself violates public policy and shoulf therefore not be enforced.
If D can prove 1. Risk is not covered or 2. K does violate public policy, then AoR fails as a defense for P.
 Expressed:
Winterstein v. Wilcom
 Facts: P signed a release form waiving all liability before he went drag racing on D’s track.
 Issue: Can P use AoR as a defense?
 Holding: No.
 Reasoning: P could not satisfy either element of the test. The injury to P did fall within the waiver
agreement he signed, and there were no public policy issues that were violated.
Criteria for Public Policy:
Party seeking to be exculpated…..
1. Is involved in a business generally thought suitable for public regulation, where party is engaged in
performing a service of great importance to the public. (healthcare, airlines, public utilities)
2. Holds self out as willing to perform this service for any member of the public who seeks it.
3. Possesses a superior bargaining power.
OR
4. Person or property of purchaser is placed under the control of the seller, subject to the risk of carelessness
by him or his agents.
Policy Concerns: Is there an incentive for Co. to create a safe environment?
PRO
Judicial economy is an incentive for Co. to create
safe environment because otherwise will have to
pay for lawsuits.
Bad business to have people dying at your race
track, so incentive because of reputation.
CON
No incentive to create a safe environment
 Implied
Rush v. Commercial Realty
 Facts: P needs to use the bathroom and her only choice is an outhouse at D’s building. She walks in and
falls through the weak floorboards into the accumulation at the bottom of the pit. P sues D owner. D raises
2 defenses: 1. P was also negligent and 2. P assumed the risk (AoR)
 Issue: Can D’s defenses prevail against P who fell through the floor when she had no other choice but to
use that outhouse?
 Holding: No.
38

Reasoning: Ct. holds that P did not assume any risk, that outhouse was her only option, so AoR fails. It was
not a voluntary assumption of risk to use that outhouse. In order to say P assumed the risk, P must have
actual knowledge, appreciation of the magnitude and voluntary encountering. Here she did not. P had no
way of knowing outhouse was risky, and had no other option. Ct. also does not find that P was negligent.
Implied AoR has 3 requirements: (must meet all 3)
1. P must have actual knowledge of the particular risk
2. P must appreciate the magnitude of that risk
3. P must voluntarily encounter the risk
Point to keep in mind:
(Involves meeting of a subjectively known risk… Contributory Negligence on the other hand may involve a P
exposing himself to a danger of which he was subjectively unaware but which would have been apparent had he
used due care.)
Some Examples of Contributory Negligence vs. Assumption of the Risk
SITUATION
A. P voluntarily enters into a relation with D
which he knows to involve some not
unreasonable risk  P voluntarily offers
to teach a beginner to drive a car.
AVAILABLE DEFENSE(S)
IMPLIED AoR:
Teacher knowsthere may be a danger and volunteers
anyway. So, teacher has actual knowledge, knows
magnitude and voluntarily encounters.
B. P enters D’s premises in the dark, does
not know that it is dangerous and fails to
exercise the ordinary caution to find out.
∏’s NEGLIGENCE:
∏ was not aware of the risk, so can’t be AoR because
no actual knowledge and no appreciation of magnitude
of risk because no knowledge.
IMPLIED AoR:
Facts even say that P was “quite reasonable” so can’t
be negligence. P knows ride is dangerous, appreciates
magnitude of risk (sees other people on the ride and
what happens to them) and voluntarily encounters
anyway.
C. P knows that D’s activity, or a condition
created by F involves some danger, but
quite reasonably concludes that he can
safely encounter it and proceeds  In an
amusement park, P buys a ticket for a ride
called “the flopper” that tips over the
riders.
D. P is fully aware of an unreasonable risk,
but voluntarily proceeds to encounter it
 P consents to ride with a drunk driver
behind the wheel on a dark night.
IMPLIED AoR:
P knows that there is a risk involved in riding with a
drunk driver, knows magnitude (getting in car
accident) and voluntarily does it anyway. May be
different if can prove P has no other choice. (like in
outhouse case)
Q) Is there a non-dangerous alternative available? May show P was unreasonable if decides not to take it.
Hypo: D’s negligent operation of a train endangers a child on the tracks. P jumps onto the tracks to save the child
and as a result gets hurt himself. Can D use AoR as a dense? Ie: Did P assume the risk?
Apply the Rescuer Doctrine.
Implied AoR cuts off liability altogether, so D will shoot for implied AoR first.
Whether P’s negligence will cut off liability depends on what type of jx you are in. (comparative, contributory etc.)
IV.
STRICT LIABILITY
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Yes Liability
“No fault”
Strict Liability
No Liability
“fault”
Negligence
(should know risk)
Intentional Tort
(meant to do it)
No Tort
Limits?
-Π behavior?
- Δ status?
- another Δ?


With Strict Liability (SL), there may be “no fault,” but there is still liability.
Intentional torts and negligence are “fault-based” theories, meaning that D has to have some kind of
“bad mindset”
 Compare SL to trespass to land. D may not have bad intention, may even want to help P, but there is
still liability if D walks onto P’s land without permission.
Strict Liability
 Law does not care whether D had a good or bad mindset. It is an activity based theory. Ie: “IF you
choose to participate in these certain activities, then you will be responsible, even if there is no bad
mindset or “fault”
 If activity is very common or necessary (flying) there will not be SL imposed
3 Requirements for SL:
1. D must be engaged in the right kind of activity
2. Causation
3. Damage
Why hasn’t Tort law only adopted Strict Liability?
 Maybe some dangerous activites are necessary to society
 Sometimes bad things just happen, no one’s “fault”
 Its too black and white to apply to every example
 No one would ever want to do anything if they knew they would be subject to SL for every single
harm. This is called a “reduction of activities”
Then, Why not get rid of SL altogether?
 We need to have means for redress of harm in activities that may cause harm even though everyone is
being as careful as possible.
 There are certain categories of conduct that are just that dangerous.
Activities that meet prong 1
1. Keeping certain types of pets
2. Dangerous Activities (blasting, storing dynamite)
3. Products
Animals that get SL treatment:
 Wild animals kept as pets (No safe way to keep a tiger in your backyard)
 Domestic pets that has “dangerous propensities unusual to its class” (if has already bitten once)
 Pets that roam around and do damage to other people’s crops and yards
40
Spano v. Perini
 Facts: P1 is an auto shop owner, P2 is the owner of a car that was in that auto shop. D is a blaster. Blasting
causes something heavy to fall off ceiling in garage and land on P’s car.
 Issue: Is D’s blasting an activity worth SL?
 Holding: Yes.
 Reasoning: Activity D was engaged in was inherently dangerous, could not be guarded against even by
exercising reasonable care, and was not in a smart location. Important to keep location in mind. Blasting
usually falls under SL, but sometimes if it is in rural area etc. may not be as inherently dangerous.
First Restatement (very strict)
Applies SL to an “ultrahazardous activity,” which is an activity that
(a) “necessarily involves a risk of a serious harm to the persons, land or chattels of others which cannot be
eliminated by the exercise of the utmost care” AND
(b) “is not a matter of common usage”
 Transporting nuclear waste
 Blasting
Second Restatement (more flexible) : A factor test
Applies strict liability to an “abnormally dangerous activity,” and says that “the following factors are to be
considered” in assessing whether an activity is abnormally dangerous:
(a) Existence of a high degree of risk of some harm to the person, land or chattels of others,
(b) Likelihood that the harm that results from it will be great
(c) Inability to eliminate the risk by the exercise of reasonable care
(d) Extent to which the activity is not a matter of common usage
(e) Inappropriateness of the activity to the place where it is carried on,
(f) Extent to which its value to the community is outweighed by its dangerous attributes
 Analyze as: c-e-a-b-d-f
 Location is relevant in 2nd but not in 1st restatement
 More like the LH formula
 Foreseeability is relevant
Indiana Harbor v. Cynamid
 Facts: Ds are transporting really dangerous but very necessary chemical through a really urban area, but
they have no other choice since all train routes run through urban areas.
 Issue: Is transporting the chemicals an activity that deserves SL?
 Holding: No.
 Reasoning: Ct. looks at the Second Restatement
(a) just by transporting, there is no risk of harm
(b) no likelihood that harm will be great
(c) if exercising reasonable care would fix it, then it is just pure negligence, not SL
(d) this type of dangerous chemical is shipped by rail all the time
(e) there is no other way to ship it
(f) this is a very valuable activity that needs to happen
To determine whether activity falls under SL, first (c) must be satisfied, then every prong thereafter that IS
met will strengthen the SL argument (not all have to be met to get SL). Judge decides whether activity
deserves SL. Jury decides causation and damages. Here, policy was a deciding factor that made this activity
NOT worthy of SL.
Foster v. Preston
 Facts: Noise from a nearby blasting site scared a mink and caused her to kill her babies.
 Issue: Should blaster be SL to mink owner?
 Holding: Hell to the no.
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
Reasoning: Blasting is the right type of activity (1 st prong met), but damage was unforeseeable (like in
Spano), and it was the wrong type of harm, so no SL.


Some Jxs say P needs to show just actual AND proximate cause.
Actual Cause:
Blasting is but for cause of mink babies dying
Proximate Cause:
Mink dying is not direct or foreseeable enough
Damage:
Mink babies die
Result:
No prox cause so no SL
Some Jxs say P needs to show just actual cause, but damages must be “damage of the type that makes
the activity subject to SL in the first place”
Actual Cause:
Blasting is but for cause of mink babies dying
Proximate Cause:
Proximate cause not needed
Damage:
Must be of the type that makes the activity subject
to SL in the first place: debris, things falling, etc.
Mink dying is not the type of damage that is the
reason for blasting being a SL activity, so no.
Result:
Damage element not met, so no SL


So possible to get the same result in both jxs, but the court will arrive at them in different ways
It is possible to get no SL even though right type of damage if the harm occurs in an unforeseeable
way.
Hypo: D is storing a bunch of dynamite in a building downtown. Policeman shoots at a criminal who is running
away and bullet hits building, flies through window and hits container of dynamite which explodes.
1.
2.
3.
D engaged in right kind of SL activity? Yes. Storing dynamite in inappropriate place.
Causation? Difficult to determine……. (see chart)
Result? Yes. Explosion.
Jx that requires actual and proximate but same type of damage: D wins.
Actual Cause:
Storing dynamite there is but for cause of explosion
Proximate Cause:
No. b/c police was a superseding cause.
Damage:
Explosion. (result)
D not held SL. P wins b/c no proximate cause.
Result:
Jx that requires actual but no proximate and only appropriate type of damage: P wins
Actual Cause:
Storing dynamite there is but for cause of explosion
Proximate Cause:
No proximate cause needed
Damage:
Explosion is type of damage that made storing dynamite
a SL activity in the first place, so damage = met
P wins because all elements met.
Result:
Actual Cause
Actual Cause
Proximate Cause
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SL in Products Liability
Greenman v. Yuba Power
 Facts: SL claim against the manufacturer of a woodworking machine with a lathe. P’s wife bought P
the product for Christmas from a retailer and gave to P. P never had any direct dealings with the
manufacturer D.
 Issue 1: Should P consumer have warned D manufacturer that P was bringing a breach of warranty
suit?
 Holding 1: No. Since P never dealt directly with manufacturer, P could not be expected to know that
this type of warning was customary, and shouldn’t have to give warning.
 Issue 2: Can D be held liable for SL, product liability?
 Holding 2: Yes.
 Reasoning: Justice Traynor has a hidden agenda here to start talking about strict liability in products
context because he is meanwhile trying to write the Second Restatement, and needs something to
reference. Traynor thinks products should get SL. Says that D had a duty to make sure product was
safe before putting it on the market.
Strict Liability in Product Context
PRO
Big incentive for manufactures to take care
Imposing SL wont hurt the reputable
manufacturers
Manufacturers better able to absorb cost than
buyers
CON
Unnecessarily raises costs
manufacturers are too afraid to invent new
products
Possible that consumer caused the harm himself
Not all products dangerous enough for SL standard
Careless consumers use SL as excuse
3 types of product defects:
1. Manufacturing
2. Design
3. Warning
Manufacturing Defect:
Product is flawed because it was not constructed correctly by the manufacturer. Imperfections that inevitably occur
in a small percentage pf products of a given design as a result of the fallibility of the manufacturing process. Doesn’t
conform to the intended design, doesn’t conform to the other products of that design. Doesn’t look to whether design
of the manufacturer was safe or not. Iproper workmanship, defective materials, comes off the assembly line
deformed etc.
Design Defect:
Second Restatement § 402A: “Special Liability of Seller of Product for Physical Harm to User or Consumer”
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer
or to his property is subject to liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if…
(a) The seller is engaged in the business of selling such a product [excludes shipper and 1-time seller]
and
(b) It is expected to and does reach the user or consumer without substantial change in the condition
in which it is sold.
(2) The rule stated in subsection (1) applies although…
(a) The seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation
with the seller.
 Focuses on the P’s expectation, called the “consumer expectation test.”
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Rix v. GMC
 Facts: P is rear ended by driver of a GMC truck. P sues D GMC for both manufacturing and design
defects. Manufacturing defect = brake tube is flawed, came off assembly line bad. Design defect =
GMC should have designed truck with a dual brake system instead of single brakes.
 Issue: Is GMC liable for manufacturing defects? Design defects?
 Holding: No.
 Reasoning: The court applies Second Restatement § 204A and finds D not liable, really a question of
whether jury instructions were correct. (1)(a) GMC is the seller of the product, engaged in business of
selling. (1)(b) If someone else made changes to product after it was sold, then GMC off the hook. Ct
focuses on whether actual P thought product was unreasonably dangerous instead of using the
“consumer expectancy test” Court should compare defectively manufactured product to good product
from the same company to see if the bad one is unreasonably dangerous.
Manufacturing Defect
Strict Liability
Negligence
R. 3rd

R. 2nd
§402A, the “Consumer Expectation Test” is based on whether the product with the defect is dangerous
beyond how a hypothetical ordinary consumer with normal knowledge in his brain would expect it to
be.
Restatement 3d:
“Liability of Commercial Seller or Distributor for Harm Caused by Defective Products”
(1)(a) One engaged in the business of selling or otherwise distributing products who sells or
distributes a defective product is subject to liability for harm to persons or property caused by the
defect.
(2) A product is defective when at the time of sale or distribution, it contains a manufacturing defect,
is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though
all possible care was exercised in the preparation and marketing of the product.
(b) is defective in design when the foreseeable risk of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe.
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the provision of reasonable instructions
or warnings by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the instruction or warning renders the product not reasonably safe.
2nd Restatement
(widely adopted) does not separate types of
defects.
3d Restatement
Has different definition for the 3 types of
defects.
Doesn’t care about consumer’s expectations: if
D puts product on market and it causes harm, D
on hook. (P must only prove defect)
Law cares about sellers and distributors
Law doesn’t consider whether there is fault.
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Risk utility analysis
No requirement that the product was
unreasonably dangerous, just that it differed
from the original design.
Design Defects
There is a design defect if the utility of the product is outweighed by the risk the product presents.
Deciding whether there is a design defect is largely a policy decision.
“Risk-Utility Test” (O’Brien)- to see if manufacturer SL
Some factors relevant in risk-utility analysis are:
(1) The usefulness and desirability of the product ie: its utility to the actual user and the public as a
whole.
(2) The safety aspects of the product ie: the likelihood that it will cause injury, and the probable
seriousness of the injury (compare to L and P of the LH formula)
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability,
because of general public knowledge of the obvious condition of the product (knives are sharp), or
the existence of suitable warnings or instructions.
(7) The feasibility on the part of the manufacturer, or spreading the loss by setting the price of the
product or carrying liability insurance.
Design Defect
Strict Liability
Negligence
R. 3rd
& R. 2nd

The nature of design defect is more fault based, more like negligence, it means you actually designed
the product wrong, some inherent detail of the design was flawed (not like manufacturing defect where
it was just an oops accident) . Design defects are harder for P to prove.
O’brien v. Muskin Corp.
 Facts: adult P dove into above-ground pool that was at most 4 feet deep. When P’s hands hit the vinyllined bottom, they spread apart and his head hit the bottom of the pool; most likely no alternative to vinyl,
but the risk of pool may have outweighed utility.
 Issue: Is using vinyl lining on a pool a design defect?
 Holding: No.
 Reasoning: Court uses the O’Brien risk-utility analysis to determine:
(1) Is the pool useful? Depends on location/climate etc. its recreational and not therapeutic, so not everyone
needs it.
(2) Safety aspects of the product.
(3) Availability of a substitute product to use as a liner, such as laytex.
(4) Could manufacturers make the product more safe at a small cost?
(5) Could the user have avoided danger by using product more carefully? Yes
(6) Was the user aware of dangers in using the product? (obvious you shouldn’t dive into 4 foot deep water
(7) Could manufacturer spread the costs? (costs would cut across whole pool industry)
Ct. ultimately holds that the case should be remanded. The jury should decide issues of user behavior etc.
(more like negligence, so jury has bigger role)
Warning Defect:
45
Anderson v. Owens-Corning Fiberglass Corp.
 Facts: D is manufacturer of asbestos-containing products. P was exposed to products at work in a shipyard
and later developed lung problems.
 Issue: Can state of the art evidence be brought in by D as defense against P’s claim of failure to warn?
 Holding: Yes, s.t.o.a. evidence may be relevant in determining whether D knew or should have known the
risks in order to know whether D should have provided a warning.
 Reasoning: Ct. decides that D is strictly liable for not warning against dangers that D knew or should have
known about.
 2nd Restatement: Once a company is sued once for something, even if its stupid, that risk is now known
and needs to be put on the warning.
 3d Restatement: If manufacturer thinks its not reasonable to put a certain warning on, can choose to
leave it off. The problem arises when the omitted warning renders the product not reasonably safe.
 Whether a product/lack of warning etc. is not reasonably safe/ unreasonably dangerous, goes back to
the consumer expectation test to decide.
Warning Defect
Strict Liability
Negligence
R. 3rd
R. 2nd

So, out of the 3 line graphs, which are closer to negligence?
SL
Negl.
3rd Manufact.
2nd Manufact.
2nd Warn
2nd & 3rd Design
3rd Warn
Defenses to SL:
 Learned Intermediary:
Warnings and instructions should usually be given to the doctor who is a learned intermediary between the
drug company and the patient. In situations where the helth-providor’s role is diminished by
circumstances, though, warning should be given directly from drug co. to patient. (nicotine patches bought
over the counter, Rule: Learned Intermediary is not a defense when:
 Drug or product is bought over the counter
 Product is birth control pills
 There is no sit-down consultation with the doctor to get the product
 The drug manufacturer advertises directly to the public (Viagra)

Rebuttable Presumption:
Courts will generally assume that the consumer will read and heed a warning that is on a product.

Obvious Dangers:
Courts will not generally find a duty to warn about dangers that are generally known (knives are sharp)

Allergic Reactions:
Usually there is a duty to warn if product contains ingredient that causes allergy to substantial number
of people, or if the allergic reaction is very severe when it experienced.

Sophisticated Users:
46
If the narrow set of end users is a group that all has expertise, then warning can be tailored to those
people. But problems arise when the group of customers includes people with and without high degree
of experience. D can argue that P was an expert user so he should have known the risk.





P was also negligent
Daly v. GMC
Facts: P driver is injured in D’s brand car when he is thrown onto the street. P says because of D’s
defective door latch, but there is evidence that P was drunk and not wearing his seatbelt.
Issue: Can D use P’s assumption of the risk (AoR) as a defense in products liability
Holding: No.
Reasoning: Even though AoR is sometimes an acceptable defense in most Jxs. Here, ct. says it is not
because it overlaps with negligence.
V.
REMEDIES
Assuming that the P can prove all elements of his claim, what does he get…?
The 3 types of remedies a P could get:
1. Compensatory
Focuses on making the P whole again. Trying to put P where he would have been had tort never
occurred (default damage in torts)
2. Nominal
Small symbolic amount, will not make P whole, but can be used as proof in future litigation. Usually
awarded when P’s harm meets the damage element but is very unspecific (lost profits for new
business, trespass to land with no actual harm done)
3. Punitive
Used to punish and deter P and others from same behavior in the future.
Compensatory Damages:
The 5 Cardinal Elements of Damages (Compensitory)
1. Past physical and Mental Pain
(any medical expenses that occurred before the trial)
2.
Future physical and Mental Pain
(medical expenses after trial) Can include emotional distress, pain and suffering, loss of enjoyment of
life (inability to produce children etc.)
3.
Future Medical Expenses
(need expert testimony to estimate how much, small injuries usually overcompensated, huge injuries
usually undercompensated, if $ ends up being too much or too little, too bad)
4.
Loss of Earning Capacity
(loss of potential to earn in future and P can also get any actual lost earnings from P’s present job if
bring in pay stubs and proof of how much time at work missed etc. Follow formula
$ AMOUNT x TIME PERIOD. Brings up question of what criteria to consider when determining
how much a child will lose in their future job earnings as an adult, what do you look at to predict?
Class suggests: gender, race, age, socio-economic background, geography. Time period = work life
expectancy before the tort.
5.
Permanent Disability and Disfigurement
YES LIABILITY
Strict Liability
Negligence
NO LIABILITY
Intentional Tort
No Tort
(1) Eligibility hurdle
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Phase I
Compensatory
Damages
(“make
All Jxs:whole”)

Express AoR is a complete bar to recovery for P.
OR
Nominal
Damages
Contributory
Negligence Jxs:
Nominal
 damages
P’s negligence is a complete bar to P’s recovery

Phase II
Punitive Damages
(2) Amount
(3) Limits
- 14th Amendment Due Process
- State Statutes
P’s implied AoR is typically a bar to recovery
Comparative Negligence Jxs (Type #1):
 P’s negligence reduces damages that D has to pay
 P’s impled AoR is a complete bar to P’s recovery

Comparative Negligence Jxs (Type #2):
 P’s negligence reduces damages
 P’s implied AoR is eliminated (Daly) ie: if P fits into both negligence and implied AoR then it is treated as
negligence. Called “Merger” but what it really means is that AoR drops out.
-
So what effect the defense will have depends on which type of Jx you are in.
Most Jxs do not completely ignore P’s liability as a defense, but some do.
Whatever defenses the jx accepts for negligence will be the same rule for SL
P may also be able to recover for property damage, (ex: Bart and his skateboard/ clothing)
- Ct.s will generally not admit evidence of what juies awarded at other trials, but attorneys can look at this info to
get a ballpark estimate for their own cases.
- Ct.s are hesitant to allow expert testimony because there is no expert who can quantify P’s pain into money.
- There is always the option to try to get sympathy from the jury, have P and his family testify etc.
- In worker’s comp. cases, each injury does have an allotted monetary value, for other injuries, quanitifying is not
so easy.
- The “per diem” approach to calculating estimate for what P has suffered is controversial. Here, the attorney will
calculate by minute, hour, day, week etc. how much P’s suffering is worth. There are cons to this approach
- Hides the larger number, inflates amount, may be misleading
- Pain and suffering may change day to day and are not a constant thing, approach doesn’t reflect reality
- All the approach does is re-frame the same issue on a smaller scale, just masks the same problem
which is ‘how to quantify P’s suffering?’
- Makes the jury think that there is some scientific basis in the numbers, when there isn’t
- Jury instructions when it comes to damages are usually very broad and vague
- There are different values for the same variables when calculating “per diem” vs. “lost earnings”
PER DIEM: Time = P’s remaining life expectancy after the tort. (how much time will P live after tort?)
LOST EARNING: Time = work life expectancy before tort. (how long could P have worked if P wasn’t injured?)
-
Does money actually do anything to alleviate pain and suffering?  it is the only tool the court knows
If nothing else, the money could help the P pay attorney fees
Destroyed Property (skateboard vs. clothing)
FMV: what a willing buyer will take from a willing seller
Items that have a FMV:
Rule: for any item that has a fair market value (FVM)  P will be limited by the FVM of the item at the time and
place that destruction occurred.
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-
Ex: to compensate Bart for his old skateboard that D breaks, court will look at how much an old
skateboard sells for on ebay or at a used sporting goods store.
P will NOT get the cost of buying a new item or reimbursement for what they paid for the item
Usually sentimental value of the item is not factored in
Caveat: it may be possible to tack on “consequential damages” if your laptop, for example, happened
to contain a semester’s worth of work etc. but difficult to prove.
Items that do NOT have a FMV:
Exceptions: - clothing, - household items (couch), - photos, heirlooms, - trophies, - awards.
Rule: for these exception items that do not have a FMV, P will recover  “personal value” at the time and place
of destruction.
- P can generally recover more for items that do not have a FMV.
- To get this recovery, P must show that there is something incomplete about the market at the place of
destruction
- When there is a market value for the heirloom or trophy (superbowl ring), P is limited to FMV
- P could also be limited by “replacement value” (what it would cost to make him a new 3rd grade
bowling trophy)
- Famous people may be limited to FMV for things that would not have a FMV for normal people. Ex:
pictures of a famous person’s wedding might be sold on ebay, so famous person will be limited to
FMV.
- Loss of a pet = FVM unless there is not market for the pet (a mutt etc.)
- Getting emo. Distress for the loss of a pet is not usually possible
- Ct.s are generally skeptical of any recovery off the beaten path of FMV items, and usually require
more evidence in those situations where P is trying to get “personal value”
What recourse can D get if damages calculated by jury are too high?
- It is very difficult to change the damages after they are awarded b/c there is high level of deference to ct.’s
determination.
- To try to change damages, D must show that amount awarded was “grossly excessive,” “outrageous,” or
“shocking to the judicial standard” etc.
- In order to try to ratchet down damages, the D has a few options:
- Try to get a motion for a new trial (ask the trial judge) OR
- Try to get amount overturned on appeal OR
- Try to privately negotiate with the P
- Try to get a settlement (D getting settlement = “remitter”
Remittitur: D talks to judge who then tells P “we will do another trial unless you are willing to settle for less”
- D is more likely to want to relitigate the entire trial rather than just the damages portion
What recourse can P get if damages calculated are too low?
- Same standards as above, same options as above (same process in reverse)
- When P wants settlement, it is called “additur” (judge tells D “we will do another trial unless you pay more”
- P is more likely to just want to relitigate the damages portion and not the whole trial
Exam: say “making the P whole may mean trying to get damages for X, Y and Z”
Punitive Damages:
3 componentes to punitive damages
1.
2.
3.
Eligibility
Amount
Limits
Eligibility:
P must show evidence about the D’s state of mind. It is possible to get punitive damages for strict liability and
negligence, but most likely for intentional torts. It is possible to get punitive after getting nominal or compensatory
too.
49
P must show two things to be eligible for punitive damages:
1. The D knew about the risk
2. The D consciously disregarded the known risk
HIGH



MALICE (goal is to harm on purpose)
RECKLESSNESS  (disregard for rights of others, know of harm and disregard it)
GROSS NEGLIGENCE  (minority of jxs allow for P to get punitive damages for gross negligence)
LOW
Wauchop v. Dominos Pizza
 Facts: Dominos has a rule that if a pizza is not delivered within 30 minutes, it will be discounted or free.
Delivery driver trying to deliver a pizza in 30 minutes hits P’s van with his car and kills P. P’s estate sues
Dominos for having the 30 minute rule, which estate says is deserving of punitive damages. Driver was
under control or franchise owner who was under control of Dominos Corp.
 Issue: What is required to be eligible for punitive damages? Should damage decision go to jury?
 Holding: see below. Yes.
 Reasoning: To prove eligibility for punitive damages, P must show that D (here, Dominos Corp) knew of
the risk and that the consciously disregarded this known risk. Evidence against D:
D knew of the risk
D consciously disregarded the known risk
-
Media reports say rule is dangerous
-
D kept the rule anyway
-
D has trouble getting insurance b/c ins.
Companies think rule is dangerous
-
D made no effort to gather data about
safety of the rule
-
Franchise tells drivers that they must follow
rules of the road (implies rule is dangerous)
-
CEO of D company says “its life or death”
D’s rebuttal: - lost profits were not coming out of the drivers’ pocket, so there was no life or death
incentive. The D constantly warned the franchise to drive safely. The D offered the franchise safety
literature/ programs for drivers, but franchise did not choose to buy them.
Court holds that a reasonable jury could find room to decide that there would be punitive damages, so the
question must go to the jury. Case here ended up being settled before going to jury. D discontinued the 30
minute rule right after the case was over.
- More likely for P to get punitive damages for intentional torts, although it is possible to get for
negligence and or SL.
- Some intentional torts not enough to get punitive damages, such as: trespass to land, mistaken identity,
battery when D had the purpose of helping.
- It is incorrect to say that all intentional torts are deserving of punitive damages, likewise incorrect to
say all negligence / SL are NOT deserving of punitive damages.
Amount:
What does the jury think about when awarding punitive damages to P?
What is the amount that will actually punish and deter the D??
1.
2.
How bad was the D really?
Nature or extent of harm that the P suffered as a result? (a way of assessing how bad the D really was)
50
3.
The wealth of the D.
Number 3 is not so intuitive, maybe more subjective a standard.
P) What it takes to punish and deter is more for a bigger corp. etc.
P) A small co. may be punished and deterred just by having to pay the compensatory damages.
P) the courts say that there is a risk of bringing in the D’s wealth…? Maybe prejudice the jury
against a
rich corporation. Cts worry that this prejudice will affect the jury’s decision on whether D met the
elements (liability) or how much compensatory harm
“bifurcated trials”  trial is broken up into two stages: stage 1 = is there liability? / jury assesses compensatory
Damages/ nominal and is D elegible to pay punitive damages….? Then, if jury decides all yes, then go onto stage 2
= only issue here is “what is the amount of punitive damages?”
Limits:
What criteria can a judge use to ratchet down an award that is too big?
- 14th amendment due process limit
- State statutes
BMW case: (1996)
 Facts: Gore sues BMW for fraud (a type of intentional tort) against BMW.
Basis of allegation? Pre-sale damage that is painted over. Reduces value of the car. Jury says compensatory
Damages are $4k. jury says punitive damages = $4M (based on BMW’s nationwide practice). (really huge)
p) how did jury come up with $4M?? 
(# of cars affected = 1000) x (actual damage to each car = $4k) = $4M.
Ex: lawyer suggesting a specific number worked really well here.
BMW appeals in state ct.  state ct cuts it down to $2M (saying that trial ct. miscalculated, formula was misleading
and inappropriate, should no have used the national figure, should have used the # of BMWs sold in the state, goal is
to punish and deter within that state only.
There were only 14 cars in state of Alabama, (14) x (4000) = $56k (not $2M), why did ct. only ratchet down to $2M
and not the real figure. (ct. thought that max amount a jury could have given, which ct. decides was $2M).
Case then goes to USSC: punitive damages = $2M, compens. = $4k
Does the $2M violate the 14th amendment for due process??? USSC holds that (1st time in history) b/c of size alone,
this punitive damage figure violates the constitution. (significant holding) So what is the rule that USSC comes up
with…. To try to measure what?  fair notice to the D that when they do particular conduct, they may be held to
this type of cost.
3 guideposts: (guidelines for the judge, not the jury)
1.
Reprehensibility of conduct of D
What facts push away from reprehensible? Pure property damage (no risk of safety, physical harm etc),
this is not reprehensible
2.
Ratio of the damages
To figure out if $2M is too high, compare the $2M to what? Actual damage of 14 cars time 4k. (35
times the actual harm.) ct. also suggest comparing to compensatory damages (500 times too high),
what is rule for future cases? There is no fixed figure, how do we know when a ratio is too high?
(single digit ratio? From state farm case, trying to specifically tack down ratio 7 years after this case)
what is court saying here??????
3.
Sanctions for comparable misc
The $2M gets down to $50k when it is remanded back to state court. (Majority view)
Dissent 1: (Scalia and Thomas)
Guideposts shouldn’t be there,
Award was too big (test is too vague)
51
P) will these guideposts give you a goo test to use on exams? (do you buy Dissent 1 argument?)
P) we should not use “national” figures when computing punitive damages, then guidepost says “look to data from
other states” why?????
* Bottom of L on p. 3 “higher ratio” ratio of compensatory to punitive damages.
Dissent 2: constitution has nothing to say about state law punitive damages award.
State farm case:
2003, similar issue, large punitive in ratio to the compensatory damages
USSC single digit ratio….. exceeding a single digit ratio means what? Punitive : compensatory should be less than
or equal to 9:1…..
But, this is not an exact rule. (not absolute)
“in practice, few awards exceeding…”
“we decline again to impose a bright-line ratio…”
Compensatory = actual
Ratio is between punitive and compensatory
Loose rule 9:1 ratio
“Once you exceed 9:1, you are getting suspect”
Some states have their own state statutes that give stricter rules about determining punitive damages. (but still must
comply with the constitutional limits)
Tort Reform (arguments on both sides)
What interest groups want reform? American medical, business, targets of class action suits,
Tort litigation is expensive
Medical malpractice lawsuits threaten ability to get quality care/ good price
Anti-Tort Reform
Tort lawyers
Punitive damages are rare and not excessive
We hear about the cases with huge punitive damages, but these are not representative.
Reform approaches:
Setting a cap on punitive damages
Cap:
in ratio to compensatory damages
Straight up cap that sets a limit
Cap in relation to D’s wealth (rare)
Extraction statutes:
D still gets hit with full amount of punitive damages, but some of it will go to the state instead of to the P .
Eliminate punitive damages entirely (hasn’t happened in any state/ extreme)
No statutory reforms
Pro
Extraction: P has already been made whole thru
compensatory, so extra $ should go to the state b/c it is
the state’s interest that is being served by punishing
Con
No incentive for P to try to get punitive damages if P
knows that extra $ will just go to the state. (extraction)
Some of the award will still go to the P (so P does have
incentive under extraction)
Caps: more predictable and reasonable for businesses
Taxes already get $ from the taxes off the punitive
damages, so state is double dipping
Not clear how extraction will use the $, it’s a black
hole
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Set $ amount cap: setting a cap will not let you tailor
punishment to the particular D.
Cap: D may weigh pros and cons and decide that
paying predictable cap is less expense than cutting off
10k kids fingers. So no incentive to change behavior.
1.
Defenses:
Contributory negligence
a) Butterfield v. Forrester
b) Last clear chance
2.
Comparative negligence
a) Pure
b) 49%
c) 50%
3.
Express AoR
a) Express (WInterstein)
b) Implicit (Rush)
4.
Implied AoR
a) There are 3 jxs
1. Overlap (either or both)
2. Overlap (automatically comparative negligence)
3. Overlap (no AoR, only defense is comparative negligence
5.
6.
Learned intermediary
Rebuttable presumption