Outline for Torts

I. Intro to Tort Liability

A. Historical Development of Fault Liability
1. Writ system of England forerunner of current American tort system
2. Brown v. Kendall-judge Shaw decided- Landmark decision bc shift
from regime of absolute liability to a fault based system (negligence taken
into account)
B. When should unintended Injury result in liability?
1. Basic Issue of torts: Do we shift that loss? Where do we shift that loss?
How do we shift that loss? What are the goals of the tort system?
2. Hammontree v. Jenner – no strict liability to drivers; if suddenly taken
ill with a physical condition that gave no warning there’s no liability
C. Goal of Tort Law from an economic point of view
1. [cost of accidents + cost of accident prevention]= total societal costs of
accidents *cost/benefit analysis
2. Richard A. Posner: We shouldn’t hold people to negligence in the case
that B is higher than PL; if we do, we will not achieve economic
efficiency; they will be encouraged to economic waste
3. Under this system, negligence is when it was cheaper to have avoided
the accident than to pay for it; if it was more expensive to avoid the
accident than to pay for it, you let it happen
4. What economists want to do is ask: who is the cheapest cost avoider?
Who had the ability to do the cost benefit analysis?
D. The parties and vicarious liability
1. Baptist Memorial Hospital System v. Sampson-Using Restatement
(Second) of Agency section 267 agency by estoppel must prove all 3
elements before principal can be held vicariously liable for another who is
not their agent
1. The principal, by its conduct
2. Caused him or her to reasonably believe that the putative agent
was an employee or agent of the principal, and
3. That he or she justifiably relied on the appearance of agency
2. Christensen v. Swenson et al.-articulated 3 criteria to help determine
acts falling within the scope of employment (not have to prove all 3):
1) employee’s conduct must be of a general kind they were hired
to do
2) employee’s conduct must occur substantially within the hours
and ordinary spatial boundaries of employment
3) employee’s conduct must be motivated by, at least in part, by
the purpose of serving the employer’s interest

 For a common law tort in negligence a plaintiff must show:

1) Duty being owed
2) Breach of that duty (negligence)

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 3) Causation (the breach caused the injury)
4) Injury /Damage

II. The Negligence Principle

A. The Central Concept
1. The Standard of Care
a. Adams v. Bulloch-judge Cardoza decided-introduced concept of
unreasonable risk; Ordinary caution did not involve forethought of
this extraordinary peril
b. United States v. Carroll Towing, Co.-Judge Learned Hand
i. B (burden of precaution) < P (probability of accident) x L
(loss if accident occurs) then party was negligent in not taking
precautions
ii. P will always be between 0 and 1 so multiplying it
“discounts” the Loss
iii. Hand formula assumes risk neutrality
iv. Hand formula also need to be applied in terms of marginal
costs, not total cost
v. difficult to use bc how do you put $ amt. on some things?
2. Coaste Theorum: Cattle vs. crops
a. Rules of legal liability do not effect allocation of resources
provided that there are no impediments to market transactions, but
it does have distributional costs
b. If lawn mower manuf. Will pay always: do c/bene analysis;
either redesign or “bribe” consumers to behave differently (wear st.
toe boots)
c. If consumers will always pay: “bribe” (pay increase cost of
mower) manuf. to chg their behavior (retrofit) or buy st. toe boots
d. Real world puts cost on manuf.
e. If rock musicians will always pay for cut toes, they will bribe in
some combo both the manuf. And consumers
f. Legal rule (distributional effect) only effects who pays, greatest
cost justified
3. The Reasonable Person
a. Rather than c/b approach; rational economic actor might decide
by RPP (always qualified by “under the circumstances”)
b. In general, we do look at mental/physical capacity to conform to
RPP-just the conduct
 Physical impairment: sick, unconscious
 Mental impairment never
 Unreasonable beliefs? Religious or moral? Do we mitigate
damages bc of these beliefs?
 Children-parents not vicariously liable, take into account their
age: mental capacity, intelligence, experiences of others

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 comparable; if engaged in adult activities, may be held to adult
standard & parent may also be liable in separate act of neg.
c. Bethel v. New York City Transit- Constructive notice: some
indication that the condition persisted long enough that the injurer
should have known
i. neglect of duty by repetition does not cease to be neglect
of duty
C. The Roles of Judge and Jury
1. In General
a. Baltimore & Ohio RR CO. v. Goodman- Holmes says a
reasonable person would stop, look and listen, ct took upon itself
to determine verdict
b. Pokora v. Wabash Railway Co.- Cardoza says Standards of
prudent conduct are sometimes declared by courts, but they are
taken over from the facts of life; if the guide of prudent conduct
fails, what is suitable for the traveler caught in a mesh where the
ordinary safeguards fail him is for the jury.
c. Andrews v. United-juries well equipped to determine RPP
i. Juries are well equipped to decide if common carriers are
meeting their duty of care in cases requiring more than a
strict framework of analysis-if the facts are so numerous
that that analysis would be inadequate
ii. The “mode of operation” notion: no specific act- just the
way they’ve been doing business is negligent
d. not every case of RPP for the jury-if def. fulfilled his duty as a
matter of law, no question of neg. remains for jury- but most are
2. The Role of Custom
a. Trimarco v. Klein- Proof of common practice can be said to aid
in formulation of the general expectation of society and thus guide
the common sense or expert tuition of the fact finder to judge a
particular conduct
i. Proof of common practice may establish due care
ii. Proof of custom may serve to establish liability
3. The Role of Statutes
a. Martin v. Herzog- Cardoza says a jury does not have dispensing
power in which they may relax the duty that one owes under
statute to another
i. statute that provides for criminal proceeding does not
automatically create civil liability
ii. Section 286 in Restatement (second) of torts: The
court may adopt as the standard of conduct of a reasonable
man the requirements of a legislative enactment or an
administrative regulation whose purpose is found to be
exclusively or in part (a) to protect a class of persons which
includes the one whose interest is invaded, and (b) to
protect the particular interest which is being invaded, and

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 (c) to protect that interest against the kind of harm which
has resulted, and (d) to protect that interest against the
particular hazard from which arm results
b Tedla v. Ellman-a court may decide whether to apply a criminal
statute to a civil liability, but does not have to;
i. The two wrongs, negligence and breach of criminal
statute, must be kept distinct in speech and thought.
ii. The general duty is established by the statute and
deviation from it without good cause is a wrong and the
wrongdoer is responsible for the damages resulting from
his wrongdoing
D. Proof of Negligence
1. Circumstantial evidence
a. Negri v Stop & Shop- When viewing conditions in a light most
favorable for the plaintiff and according pl. benefit of every
reasonable inference, if circumstantial evidence would allow a jury
to draw the necessary inference of negligence, an appellate court
cannot dismiss the case.
b. Gordon v. American Museum- To constitute constructive notice,
defect must be visible and apparent and it must exist for a
sufficient length of time prior to the accident to permit employees
to discover and remedy it.
c. constructive notice: even if you didn’t actually know, it was
there long enough that you should have known
d. actual notice: proof you knew of dangerous condition
2. Res Ipsa Loquitur
a. Byrne v. Boadle-If a person passing along is injured by
something falling on him, the accident alone is prima facie
evidence of negligence UNLESS the defendant can prove any facts
to rebut the presumption of negligence
1. Thought to be an inaccessibility of evidence or
2. A comparative disadvantage of the pl of gathering
evidence meaning
3. The defendant has the advantage to gathering
evidence of negligence or none
b. McDougald v. Perry- Res ipsa loquitur provides a pl with a
common-sense inference of negligence where direct proof of
negligence is wanting, provided certain elements consistent with
negligent behavior are present.
i. Essentially the injured pl must establish that the
instrumentality causing his or her injury was under
exclusive control of the defendant
ii. and that the accident was one that would not, in the
ordinary course of events, have occurred without
negligence on the part of the one in control.

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 c. Ybarra v. Spangard- test of instrumentality is one of right of
control rather than actual control
i. res ipsa loquitur is about proving negligence; it is NOT
about proving identity
d. injury cannot be due to any voluntary action or contribution on
the part of the plaintiff
E. The Special Case of Medical Malpractice

 Med. Malp. You need to show:

a. what is relevant standard?
b. the def fell below the standard
c. falling below the standard is what caused the injury
2. Informed consent (or lack of consent) presumes the patient is in control
of his own body and dr follows what the patient wants-pt must have all the
facts to make a good decision and tell the dr what to do
3. Usually need expert testimony to prove all 3 points needed for medical
malpractice unless layman can understand RPP through their own
experiences
4. Sheeley v Memorial Hosp.- A physician is under a duty to use the
degree of care and skill that is expected of a reasonably competent
practitioner in the same class to which he or she belongs acting in the
same or similar circumstances.
a. standard is professional standard, custom being determinative: it
will define RPP for professionals
b. The “same or similar” communities test of an expert witness
repudiated in favor of a national standard
5. Connors v. University Associates-Circuit Judge Altimari-can use expert
testimony and res ipsa loquitur in the same case
a. Real test should be whether that accident would normally occur
in the ordinary course of events, not if it was common knowledge
b. Restatement section 328D:… Such testimony may be essential
to the plaintiff’s case where, as for example in some actions for
medical malpractice, there is no fund of common knowledge which
may permit laymen reasonably to draw the conclusion.
6. Matthies v. Mastromonaco-Justice Pollock-new ides to informed consent
a. A doctor must explain all reasonable medical options, whether
the doctor would recommend them or not, which the doctor would
choose and why, and must describe the material risks inherent for
each alternative
b. material risk is if it might affect the decision of the patient
7. Patient approach: information disclosure standard is what would you
the patient (or a reasonable patient) have chosen to know; what a
reasonable patient would have wanted to know usually wins out if the
patient had unreasonable expectations

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 a. We use a subjective test unless the patient can prove
extraordinary circumstances why jury should consider their
subjective reason (RPPatient)
b. As long as they are adequately informed of the risks, if a patient
makes a bad choice, it’s their fault
8. Exceptions:
1. emergency- If and only if, the patient is unconscious and bc of
either time or circumstances not able to get a hold of family
member may the doctor assumes the patient would consent to
life saving procedures.
2. incompetent or child-guardian makes decision
3. therapeutic grounds- their physical or mental health would be
adversely effected if they knew
 To make a claim of malpractice for uninformed consent a patient would
have to say:
1. I was uninformed
2. and if I had known, I would have decided
differently
3. patient must show the undisclosed risk happened or
there would be no causation

IV. The Duty Requirement: Physical Injuries

A. Introduction
1. A duty arises from:
a. special relationships
b. statute
c. voluntary assumption
i. if you start helping, you can’t stop
ii. can’t leave victim in a worse situation than when you
found them
iii. for compensation or gratuitously
d. general context
i. each of us has the right to expect at least the minimal
amount of care from harm of others (car accidents)
ii. General rule: Whenever one person is by circumstances,
placed in such a position with regard to another …that if he
did not use ordinary care and skill in his own conduct…he
would cause danger of injury to person or property of the
other, a duty arises to use ordinary care and skill to avoid
such danger
2. affirmative duty to act: omission v. commission
a. looking for the right combo of carrots & sticks for omissions
B. Obligations to Others
1. Harper v. Herman- The fact that an actor realizes, or should realize that
action on his part is necessary for another’s aid or protection does not in

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itself impose a duty upon him to take such action or establish liability in
negligence unless such a special relationship exists.
a. Restatement section 314A: Special relationships: common
carriers, innkeepers, possessors of land who hold it open for the
public, and persons who have custody of another person under
circumstances in which the other person is deprived of normal
opportunities of self-protection.
2. Farwell v. Keaton- 1st ground of duty: Companions engaged in a
common undertaking counts as a special relationship.
a. In the case of duty bc of a special relationship, you are required
to render reasonable care under the circumstances, when it would
not endanger yourself.
b. 2nd ground of duty: voluntary assistance precluded others from
helping and left him in a worse situation, but that’s secondary
3. Restatement § 326: “one who intentionally prevents a third person
from giving to another aid necessary to prevent physical harm to him, is
subject to liability.”
4. misfeasance v. nonfeasance: The query always is whether the putative
wrongdoer has advanced to such a point as to have launched a force or
instrument of harm, or has stopped where inaction is at most a refusal to
become an instrument for good
5. Strauss v. Belle Realty Co.- The court chose to limit the duty of care to
exclude non-customers
a. While absence of privity does not foreclose recognition of a
duty, it is still the responsibility of the courts, in fixing the orbit of
duty, to limit the legal consequences of wrongs to a controllable
degree
b. Question of duty is normally a matter of law, but sometimes, the
question of duty is a matter of fact to be determined by a jury
6. Uhr v. East Greenbush Central School District- negligence per se not
applicable bc no duty under common law; a duty here only arises by
statute, but that statutory duty does not give rise to a personal cause of
action
a. In Martin v. Herzog, the duty to operate vehicle in a safe manner
was not in a statute it was in common law; the standard of care was
established by the statute, it did not create the duty
b. A duty at large will not be extended to a particular person,
absent a special duty to an individual
c. Restatement § 874A: “When a legislative provision protects a
class of persons by proscribing or requiring certain conduct but
does not provide a civil remedy for the violation, the court may, if
it determines that the remedy is appropriate in furtherance of the
purpose of the legislation and needed to assure the effectiveness of
the provision, accord to an injured member of the class a right of
action, using a suitable existing tort action or a new cause of action
analogous to an existing tort action.”

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C. Obligations to protect a third party
1. Tarasoff v. Regents of University of CA- If the psychiatrist thought
patient probably would kill, not just a duty to warn: duty to exercise
reasonable care to protect another from danger
a. In the context of controlling the actions of another, there was a
duty owed only in a special relationship: parent-child, master-
servant, possessor of land or chattels-use of same, someone who
takes charge of another
b. There is no duty when the risk is self-inflicted harm or property
damage or there is no identified potential victim
c. All the court is saying is there is a duty-they haven’t talked
about negligence
d. therapists have a duty to exercise reasonable care to protect third
persons from probable physical harm
2. Randi W. v. Murdoc Joint Unified School Dist.- one who intentionally
or negligently provides false information to another owes a duty of care to
a third person who did not receive the information and who has no special
relationship with the provider: if the category of negligent conduct at issue
is sufficiently likely to impose the type of harm experienced
a. Restatement of Torts (Second) § 311: “One who negligently
gives false information to another is subject to liability for physical
harm caused by action taken by the other in reasonable reliance
upon such information, where such harm results
(a) to the other or
(b) to such third persons as the actor should reasonably expect
to be put in peril by the action taken.”
b. could have written a full disclosure letter or no comment letter;
they gave affirmative misrepresentations
3. No duty to warn when:
a. no duty of passenger in car warn about danger to another outside
b. passenger in car cannot hurt-contibutorily negligent if silent
c. no duty running to third parties if the doctor has no knowedge of
their existence
d. no duty if no identifiable potential victim
e. not foreseeable
4. Vince v. Wilson- Key factor is that the negligent entrustment theory
requires showing that the entrustor knew or should have known some
reason why entrusting the item to another was foolish or negligent
a. Restatement second §390: One who supplies directly or
through a third person a chattel for the use of another whom the
supplier knows or has reason to know to be likely bc of his youth,
inexperience or otherwise, to use it in a manner involving
unreasonable risk of physical harm to himself and others whom the
supplier should expect to share in or be endangered by its use, is

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 subject to liability for physical harm resulting to them…the rule
stated applied to anyone who supplies a chattel for the use of
another. It applies to sellers, lessors, donors or lenders, and to all
kinds of bailors, irrespective of whether the bailment is gratuitous
or for consideration
b. Issues of negligence to be determined by the jury under proper
instruction
c. neg. entrustment does not stretch to cover stolen goods, nor
impose requirement of checking driving records
5. Reynolds v. Hicks- No tort liability for social hosts to a third party hurt
by a minor served alcohol
a. Technical reason denied: reason behind statute? To protect
minors-not protect the class of third parties
b. Policy reason denied: social host wide-sweeping; judiciary ill-
equipped to impose social liability-courts are reluctant to impose
responsibility on social hosts and occasions
D. Landowners and Occupiers
1. Carter v. Kinney-3 broad classes of plaintiffs in premises liability cases;
Because Mr. Carter did not plan on socializing with the Kinney’s
afterward and he was using their property for a mutual benefit, he was by
law a licensee
2. Heins v. Webster- NEW TEST:
 Impose on all owners and occupiers only the duty to exercise
reasonable care and maintenance of their premises for the protection of
lawful visitors
 Factors to be considered when determining reasonable care:
 Forseeability or possibility of harm
 the purpose for which the entrant entered the premises
 time, manner and circumstances under which the entrant entered
the premises
 the use to which the premises are put or expected to be put
 the reasonableness of inspection, repair, or warning
 the opportunity and ease of repair or correction or warning
 the burden on the land occupier/owner and or community in terms
of inconvenience or cost in providing adequate protection
3. Landlords duty of care:
a. hidden danger
b. leased for public use
c. premises retained under landlord control (common areas)
d. negligent repairs
e. only liable for criminal activity if he could have prevented it
4. Posecai v. Walmart- Although business owners are not insurers of their
patrons health and safety, they do have a duty to implement reasonable
measures to protect their patrons from criminal acts of third parties when
those acts are foreseeable.Balancing test: balance the forseeability of harm

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 against the burden of imposing a duty to protect against criminal acts of
another
E. Intrafamily Duties
1. Broadbent v. Broadbent- A parent is not liable for an act or omission
that injured his child if the parent acted as a reasonable and prudent parent
in the situation would.
F. Governmental Entities
Municipal and State Liability
1. Riss v. NY City-(she is a blg that could catch fire)-
a. A governmental entity does not have a duty of protection to citizens
absent a special relationship or an assumption of an affirmative duty
to act on the part of the victim
b. Special relationship exception:
 An assumption by the municipality through promises or
action, of an affirmative duty to act on behalf of the party who
was injured;
 Knowledge on the part of the municipality’s agents that
inaction could lead to harm;
 Some form of direct contact between the municipality’s
agents and the injured party
 That party’s justifiable reliance on the municipality’s
undertaking
2. Lauer v. City of NY- Because plaintiff cannot point to a duty owed to
him by the Office of the Chief Medical Examiner (cannot be a duty to all
of society), negligence claim must fail
a. Distinction between ministerial (no immunity for; adherence to
an admistrative rule was not done) and discretionary (immunity for
these; reasoned judgment calls of officials)
3. Friedman v. State of NY- Under qualified immunity, a governmental
body may be held liable when its study of traffic condition is plainly
inadequate or there is no reasonable basis of its traffic plan (pl must prove
NO reasonable person would ahave adopted their plan, not just argument
against it)
 Test of qualified immunity:
1. Once state notified of a dangerous situation, it must take study w/
eye toward alleviating danger
2. After implementing traffic plan, or decision to keep status quo,
state under continuing duty to review its plan in light of actual
operation
3. Once decision to go forward has been made, can be held liable if
there was an unjustifiable delay in implementing plan-it
constitutes a municipality’s breach of duty to public

The Federal Tort Claims Act

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  District courts have exclusive jurisdiction; negligent and wrongful acts (not
waived for strict liability); while acting in scope of duties
 Tried w/o a jury
 US not liable for punitive damages
 Cap on attorney fees
 Cannot go after the US employee in a separate civil action
 MOST important: does not apply to any claim based on the act or omission of
any employee exercising due care in the execution of a statute or regulation,
whether its valid or not OR based on the exercise or performance or failure to
exercise or perform a discretionary function or duty
 No postal matters
 There are exceptions for intentional torts
 Fiscal operations not included
 No claim arising out of military or combatant activities
 No claim arising in a foreign country

1. Cope v. Scott- If a decision is of greater significance-those grounded in

economic, social, and political goals-the decision falls within the
protection of the FTCA exception; Fleshes out what is a discretionary
function (FTCA does not apply, so still immunity) and what is not (FTCA
does apply, so immunity s waived)
V. The Duty Requirement: Non-physical Harm
A. Emotional Harm
1. Falzone v. Busch-(early case-physical impact disappeared today)That
where negligence causes fright from a reasonable fear of immediate
personal injury, which fright is adequately demonstrated to have resulted
in substantial bodily injury or sickness, the injured person may recover if
such bodily injury or sickness would be regarded as proper elements of
damage had they occurred as a consequence of direct personal injury
rather than fright
2. Metro-North v. Buckely- Court worried about drain on resources; if
allow guy to recover for NIED when he has no symptoms, just fear large
tort claims will drain resources for legitimate cases where the pl. does
contract the disease The “physical impact” referred to in case law, does
not include a simple physical contact with a substance that might cause a
disease at a substantially later time where that substance, or related
circumstance, threatens no harm other then the disease-related risk.
3. Gammon v. Osteopathic Hosp. Maine- Rather than requiring physical
manifestation of P’s emotions, we now abandon this and rely on
a. the trial process for protection against fraudulent claims, since
jurors and trial judges can evaluate the impact of psychic trauma
just as they evaluate other claims, AND
b. the traditional tort principle of foreseeability. A defendant is
bound to foresee P’s psychic harm when such harm reasonably
could be expected to befall the ordinarily sensitive person.

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 4. mis-handling corpses: we provide compensation when:
a. the emotional distress is intentionally or recklessly inflicted, or
b. when the emotional distress results from physical injury
negligently inflicted, or
c. when negligently inflicted emotional distress results in physical
injury
5. Porter v. Jaffee (Dillon v. Legg is the seminal case here)-
 Rule: A bystander can recover from NIED, even if she was neither in the
ZOD nor suffered physical harm, if:
(1) the death or serious physical injury of another by defendant's
negligence (emotional injury was foreseeable);
(2) familial relationship between plaintiff and the injured person;
(3) observation of the death or injury at the scene of the accident;
and
(4) resulting severe emotional distress (it must be a severe
experience, a bodily, immediate shock experience)
6. Johnson v. Jamaica Hosp.- There is no duty owing to the parents to
protect from emotional distress inflicted through negligent acts injuring
their children when they did not see it nor were in the zone of danger
7. Death cases:
a. Survival actions
b. Wrongful death
c. Wrongful death of a child
8. Loss of Consortium AZ pretty liberal for parent/child consortium and
w/ death statute recovery
B. Interference w/ Procreation and end of life decisions
1. Parent’s Cause of action
a. loss of consortium
b. wrongful death
c. impaired child, non-wrongful birth
d. wrongful birth
e. wrongful conception or wrongful pregnancy
f. pre-conception negligence
2. Emerson v. Magendantz-three ways for assessing damages for wrongful
birth: limited recovery, limited recovery w/costs for child rearing
balanced; full recovery rule
3. Child’s Causes of action
a. loss of consortium
b. wrongful death
c. child injured in utero
d. wrongful life
e. emotional distress
4. End of life claims: wrongful living or wrongful prolongation of life-cts
won’t recognize
VI. Causation
A. Cause in Fact

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 1. Basic Doctrine (when there are or could be multiple causes)
a. Stubbs v. City of Rochester- If two or more possible causes exist,
for only one of which the def may be liable, and a party injured
establishes facts from which it can be said with reasonable
certainty that the direct cause of the injury was the one for which
the def was liable the party has complied with the spirit of the rule.
b. Zuchowicz v. US –Calabresi was judge-Justices Cardoza (NY)
and Traynor (CA): A) If a neg act was deemed wrongful bc that act
increased the chances that a particular type of accident would
occur, and B) a mishap of that very kind did happen, this was
enough to support a finding by the trier of fact that the neg
behavior caused the harm. Had to be a substantial factor on a more
likely than not basis.
 Law of causation in fact: a) that the defendant’s negligent act or omission
was a but for cause of the injury b) that the negligent was causally linked to
the harm c) that def negligent act or omission was proximate to the resulting
injury
c. anticipated future harm: if the disease develops, come back and
recover; might recover for cost of medical monitoring
d. expert testimony: Daubert 4 factor test to help gatekeeper judge:
1. whether the testimony can and has been tested according to
the scientific method
2. whether the theory or technique has been subjected to peer
review and publication
3. in the case of a particular scientific technique, the known or
potential rate of error
4. whether the theory is generally accepted
5. test should be a flexible one and can also apply to
testimony based on “technical” or “specialized
knowledge”; takes it beyond scientific orthodoxy
e. Albert v. Schultz-Loss of a Chance- A claim for lost chance is
predicated on the negligent denial by a health care provider of the
most effective therapy for a patient’s presenting medical problem
(problem could be incorrect diagnosis, inappropriate treatments, or
failure to timely provide the proper treatments); the essence of the
claim is that prior to treatment, there was a chance that he would
be better off w/ adequate care
 Elements of lost chance are the same as in all medical malpractice situations:
health care provider did not cause injury; their neg reduced the chance of
avoiding the injury actually sustained.-the causal link from neg to the lost
chance still must be established

2. Joint and severable liability (where there are multiple tortfeasors)

indivisible injury is where j&s liability might kick in
3. Multiple defendants

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a. Summers v. Tice- If the negligence of both defendants was the
legal cause of the injury, both are responsible for the whole
damage whether they are deemed to be acting in concert or
independently. why not res ipsa here? Bc res ipsa is for proving
negligence (we know someone was negligent), NOT causation (but
we don’t know who)
b. How could a def act?
1. Jointly: dual control of the situation by 2 people
2. Jointly vicariously: one is acting and one is responsible for
the other in same way
3. Concerted action: drag racing example; one person can’t
have done on their own; there must have been more than
one to pull it off, but only one of them causes the accident;
all participants are still liable
4. Independent action: independent tortfeasors:
i. They can act concurrently: simultaneously
hit a car (but not planning it together)
ii. Or successively: one car hits another and
knocks it into road, another car hits it then;
some party injured and another aggravated
the injury somehow
c. Hymowitz v. Eli Lilly-many def, only one before the court right
now-DES daughters; Sindell; problems: ID manuf. And Statute of
Limitations
1. Alternative liability: where two or more defendants breach a
duty to a plaintiff, but there is uncertainty regarding which one
caused the injury, “the burden is upon each such actor to prove
that he has not caused the harm”; they are held jointly and
severally liable
o This generally requires that the def have better
access to info than the pl and that all possible
tortfeasors are before the court
o It rests on the notion that there is a small number of
wrongdoers, all of whom breached a duty to the pl,
the likelihood that any one of them injured the pl is
relatively high, so it’s not that unfair
o Problem here: none of these apply
2. Concerted action: provides joint and severable liability on
the part of all the def having an understanding , express or tacit,
to participate in a “common plan or design to commit a
tortuous act”
o Drag racing example
o Again, reasoning doesn’t apply to DES cases
3. Adopted a version of the market share concept;
manufacturer’s liability was several only (liable for their market
share only in all cases); based on a national market share;

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 exceptions: if DES producer satisfies its burden of proof that it
was not a member of the market in which the pl bought the
drugs, they are exculpated, although there is no exculpation for
a def who, although a member of the market producing DES for
pregnancy use, appears not to have caused that particular pl
injuries
4. Special case of toxic harms
d. Environmental Liability: 3 characteristics that are found, singly
or in combination , in every case of toxic harms or other pollutants:
identification of the harm; boundaries; source (very often a
collective harm)
e. Medical monitoring: pl must prove
1. he or she has, relative to the general population, been
significantly exposed
2. to a proven hazardous substance
3. through the tortuous conduct of the def
4. as a proximate result of the exposure, pl has suffered an
increased risk of contracting a serious latent disease
5. the increased risk of disease makes it reasonably necessary
for the pl to undergo periodic diagnostic medical
examinations different from what would be prescribed
absent the exposure; and
6. monitoring procedures exist that make the early detection
of a disease possible
B. Proximate Cause- applicable when something strange or unexpected happens
as result of negligence-an unexpected harm, manner, or victim
1. Unexpected Harm
a. Burns v. Thomas: have to be able to foresee some type of injury,
but you don’t have to know the extent or type of injury that
actually happens
b. eggshell plaintiff rule: Consequences which follow in unbroken
sequence, w/o an intervening efficient cause, from the original
tortuous act, are natural and proximate; and for such consequences
the original wrongdoer is responsible, even though he could not
have foreseen the particular results which did follow
c. Polemis-unexpected harm-
1. They are trying to draw a line limiting liability using
directness; not forseeability that matter in proximate cause
cases, but directness that is important
2. If you do something negligent, any damages of any type
and any extent you are liable for as long as it was directly
attributable to your actions
d. Wagon Mound #1-dock owner; Foreseeability becomes the
effective test of liability; reject Polemis outright; only responsible
for the foreseeable consequences of your act

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 e. Wagon Mound #2- ship owner-Can you ignore the slight risk?
ONLY if under the Learned Hand formula, the expense of
avoiding it, extent of the damage that could occur, and the % of
risk were balanced
2. Unexpected Manner
a. McLaughlin v. Mine Safety- Jury was instructed that if they
found it conceivable that these blocks would find themselves into
someone’s hands without the packaging for warning, then they
could find the def manufacturer liable; court should have charged
that if the fireman did so conduct himself, without warning the
nurse, his negligence was so gross as to supersede the negligence
of the defendant and to insulate it from liability. This is the rule
that prevails when knowledge of the latent danger or defect is
actually possessed by the original vendee, who then deliberately
passes on the product to a third person without warning
b. Pay very close attention to the words used to describe a set of
events-that will influence juries more than anything; when you
take the bare bones approach (pl like this) it seems like a slam
dunk case. When you introduce a lot of intervening unexpected
events (def likes), it becomes too attenuated to support liability
using proximate cause
c. Dissent in McLaughlin: The rule is not absolute that it is not
necessary to anticipate the negligence or even the crime of another.
It has been said in the Restatement of Torts (§ 449): "If the
realizable likelihood that a third person may act in a particular
manner is the hazard or one of the hazards which makes the actor
negligent, such an act whether innocent, negligent, intentionally
tortious or criminal does not prevent the actor from being liable for
harm caused thereby." It is further provided by section 447: "The
fact that an intervening act of a third person is negligent in itself or
is done in a negligent manner does not make it a superseding cause
of harm to another which the actor's negligent conduct is a
substantial factor in bringing about, if (a) the actor at the time of
his negligent conduct should have realized that a third person
might so act".
3. Unexpected Victim
a. Palsgraff v. Long Island RR- No duty owed Cardoza says; he
talks the language of duty in the majority (as opposed to
proximate cause); if you are negligent toward one person, you had
a duty towards them, not other people; orbit of danger
o Negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right
o If no hazard was apparent to the eye of ordinary vigilance, an act innocent
and harmless, at least to outward seeming, with reference to her, did not
take to itself the quality of a tort because it happened to be a wrong,

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though apparently not one involving the risk of bodily insecurity, with
reference to some one else.
b. dissent in Palsgraff-Andrews says an act can be negligent
whether it harms someone or not; When you harm someone, you
had a duty to them, but the right to recover depends on proximate
cause; court draws an arbitrary line as to how far proximate cause
goes; forseeability is not everything
c. Kinsman I: claims for property damage-Friendly distinguishes
from Palsgraf bc you could not tell from the face of the package
that there was anything but danger to someone in the immediate
vicinity of the package; distinguishes Wagon Mound bc there were
2 different types of risks; here, there was the same risk (damage
from the ships), just greater damage than was foreseeable; it was
direct (like Polemis), and of the same general sort (unlike Wagon
Mound) and to the same class of persons at risk (unlike Palsgraf),
so no one is relieved of liability; really looking for a way to the
largest pocket (City of Buffalo) and therefore can’t relieve the
other two of liability; a lot of judicial decisions going on like
Andrews said
d. Kinsman II: claims for economic damages from bridge closure-
movie excerpt physical forces have come to rest; no direct line
from the cause; economic forces do not have a clear cut
forseeability cut-off like physical forces do

can talk duty and causation like Palsgraff

can talk forseeability v. direct harm as in Polemis and Kinsman I
considering the extent and type of harm was rejected in Polemis
2 different types of harm were distinguished in Kinsman
Talk physical forces
Or just say “expediency and practical politics” of Andrews and
“watch what courts do, not what they say” of Friendly

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