Outline for Torts

DeMott, Fall 2015

Outline with Notes

OUTLINE WITH NOTES ............................................................................................................................................. 1
FULL TABLE OF CONTENTS ................................................................................................................................... 5
RESTATEMENT 3RD KEY ........................................................................................................................................... 9
I. INTENTIONAL TORTS......................................................................................................................................... 9
A. CONCEPT OF INTENT ............................................................................................................................................ 9
A person acts with the intent to produce a consequence if the person acts with the purpose of producing that
consequence; or b) the person acts knowing that the consequence is substantially certain to result. ................. 9
B. BATTERY ............................................................................................................................................................. 9
Intent (intended the contact) + Contact (harmful or offensive) (+ Egg Shell Skull).............................................. 9
C. ASSAULT ............................................................................................................................................................ 10
Intent + Immediate Apprehension of (Harmful Contact/Offensive Contact) ...................................................... 10
D. TRANSFERRED INTENT ...................................................................................................................................... 10
E. TRESPASS TO LAND ........................................................................................................................................... 10
Enters or causes to enter Or remains Or Fails to remove something ................................................................... 10
Accidental trespass, no liability; Mistaken trespass, liability .............................................................................. 10
F. TRESPASS TO CHATTELS.................................................................................................................................... 10
Dispossessing Or Using Or Intermeddling with .................................................................................................. 10
G. DEFENSES: ........................................................................................................................................................ 11
INSANITY ................................................................................................................................................................... 11
Not a true defense; it is a denial that plaintiff has proven an essential element, i.e., that the defendant intended
harm ..................................................................................................................................................................... 11
CONSENT ................................................................................................................................................................... 11
SELF-DEFENSE........................................................................................................................................................... 11
Simply: a) Timing, authorized solely to prevent further intrusion that cannot be avoided by waiting for legal
redress; b) reasonable belief the threat is genuine; c) force must be proportional ........................................... 11
DEFENSE OF PROPERTY ............................................................................................................................................. 12
Like self-defense, but must request tortfeasor to leave; castle law ...................................................................... 12
NECESSITY ................................................................................................................................................................. 12
Public and private necessities .............................................................................................................................. 12
II. NEGLIGENCE: ESTABLISHING REASONABILITY.................................................................................... 13
A. STANDARD OF CARE: REASONABLE PERSON .................................................................................................... 13
Reasonable person in the same circumstances; or for those in special circumstances (children, physically
disabled, experts, emergency), standard is a like person in the same circumstances ........................................... 13
B. CALCULUS OF RISK FOR A REASONABLE PERSON............................................................................................. 13
Burden < Probability of injury X Cost of the injury, then defendant ought to have shouldered the burden ....... 13
C. ESTABLISHMENT OF STANDARD OF CARE BY LEGISLATURE: VIOLATION OF STATUTE (PER SE
NEGLIGENCE) ............................................................................................................................................................ 14
The violation of the statute must causally contribute to the injury for it to trigger per se ................................... 14
D. PROOF OF NEGLIGENCE; USE OF CUSTOM AND EXPERT TESTIMONY ............................................................... 14
Custom is mere evidence of a reasonable standard of care .................................................................................. 14
E. USE OF CIRCUMSTANTIAL EVIDENCE: RES IPSA LOQUITUR .............................................................................. 15
1) accident must be of a kind which usually does not occur without negligence; 2) caused by
agency/instrumentality within the exclusive control of the defendant ................................................................. 15
III. NEGLIGENCE: DUTIES ..................................................................................................................................... 16
A. DUTY NOT TO CREATE RISK OF PHYSICAL HARM ............................................................................................. 16
Duty to exercise reasonable care when the actor's conduct creates a risk of physical harm; question of
foreseeable harm or foreseeable plaintiff ............................................................................................................. 16
 B. AFFIRMATIVE DUTIES: ..................................................................................................................................... 16
Generally, no such duties; except in special relationships or rescuer’s of defendant’s tortious conduct ............. 16
TO WARN ................................................................................................................................................................... 17
Where defendant created the risk ......................................................................................................................... 17
BASED ON SPECIAL RELATIONSHIP ........................................................................................................................... 17
Where public policy demands special attention by the defendant ........................................................................ 17
AFFIRMATIVE DUTY TO RESCUERS ........................................................................................................................... 17
Where defendant has caused a danger and put the other or a third person at risk of (further) harm; or where
defendant has begun a rescue ............................................................................................................................... 17
C. LANDOWNER LIABILITY ..................................................................................................................................... 18
Landowners owe a duty of reasonable care to every expected entrant; owes flagrant trespassers only not to
intentionally physically harm them ...................................................................................................................... 18
D. STATUTORY DUTY ............................................................................................................................................. 19
If a statute says so… ............................................................................................................................................. 19
E. NO-DUTY BASED ON PUBLIC POLICY ................................................................................................................ 19
F. IMMUNITIES ........................................................................................................................................................ 19
Many immunities have been reduced to explanations of a “reasonable man” standard; e.g., “a reasonable parent
would…” .............................................................................................................................................................. 19
IV. NEGLIGENCE: CAUSE ....................................................................................................................................... 20
A. CAUSE IN FACT—THE BUT FOR TEST AND THE NOTION OF “SUBSTANTIAL CAUSE” ....................................... 20
Must ask whether defendant’s negligence caused the harm, not just whether his conduct caused it; plaintiff’s
burden ................................................................................................................................................................... 20
B. MULTIPLE ACTORS CAUSE HARM ..................................................................................................................... 20
All defendants are fully liable for the harm, but plaintiff may only recover up to 100%..................................... 20
C. PROXIMATE CAUSE ............................................................................................................................................ 21
For the negligent cause to be the proximate cause, the resulting harm must be within the scope of the risk the
actor took; it is a question of foreseeability .......................................................................................................... 21
V. REDUCTION OF RESPONSIBILITY: OTHERS’ CONDUCT AS A CONTRIBUTING CAUSE.............. 22
A. INTERVENING CAUSES AS SUPERSEDING CAUSES ............................................................................................. 22
A break in the causal chain ................................................................................................................................... 22
B. CONTRIBUTORY VS COMPARATIVE NEGLIGENCE BY STATE ............................................................................. 22
Most states place the burden of persuasion on the issue of contributory negligence on defendant: treated as an
affirmative defense ............................................................................................................................................... 22
C. COMPARATIVE NEGLIGENCE ............................................................................................................................. 23
Whether plaintiff’s conduct fell short of reasonable care under the circumstances and the negligent conduct is a
cause in fact of injury?.......................................................................................................................................... 23
Majority: “if the negligence was not greater than the negligence of the person against whom recovery is
sought”.................................................................................................................................................................. 23
D. ASSUMPTION OF THE RISK ................................................................................................................................. 23
E. AVOIDABLE CONSEQUENCES ............................................................................................................................. 24
F. VICARIOUS LIABILITY ........................................................................................................................................ 24
Employers are liable when employee acts within the scope of employment (performing assigned work or in a
course of conduct subject to the employer’s control; another way: 1) whether the enterprise of the employer
would have benefitted by the context of the act of the employee but for the unfortunate event, 2) Whether the
employer’s risks are incident to the enterprise) .................................................................................................... 24
Apparent authority: conduct by the principal leads plaintiff to believe agent acts for principal; plaintiff so
believes ................................................................................................................................................................. 24
VI. NEGLIGENCE: HARM ........................................................................................................................................ 26
A. EMOTIONAL HARM ............................................................................................................................................ 26
NIED: must be added to other tort claim; danger + emotional harm results; negligent conduct in relation to
special activities (e.g., dealings with corpses) ...................................................................................................... 26
Bystander NIED: bystander perceives 1) the injury 2) contemporaneously, is 3) a close family member of the
injured, 4) severe emotional distress .................................................................................................................... 26
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 B. ECONOMIC INJURY: ........................................................................................................................................... 27
Parasitic economic loss: loss that accompanies loss or damage to property or persons ...................................... 27
Pure economic loss: no damage to property or persons; “no duty” rule .............................................................. 27
INTRODUCTION .......................................................................................................................................................... 27
PERSONAL INJURY CONTEXT .................................................................................................................................... 27
FRAUDULENT MISREPRESENTATION ......................................................................................................................... 27
Misrepresents a material fact, knowing he speaks with more surety than he has, to induce plaintiff to act/refrain,
the other acts ........................................................................................................................................................ 27
NEGLIGENT MISREPRESENTATION ............................................................................................................................ 28
Inaccurate information negligently supplied ........................................................................................................ 28
VII. STRICT LIABILITY..................................................................................................................................... 29
A. ANIMALS............................................................................................................................................................ 29
B. DANGEROUS ACTIVITIES ................................................................................................................................... 29
An activity is abnormally dangerous if the activity creates a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors, and it is not an activity of common usage (e.g., cars,
electricity through wires) ..................................................................................................................................... 29
VIII. PRODUCTS LIABILITY.............................................................................................................................. 30
A. NEGLIGENCE ACTIONS—OVERCOMING THE PRIVITY BARRIER (BETWEEN CONTRACTOR AND
CONTRACTEE) ............................................................................................................................................................ 30
No longer as much an issue because of strict product liability ............................................................................ 30
B. MISREPRESENTATION AND BREACH OF WARRANTY ........................................................................................ 31
Defendant merchant liable for harm caused by a misrepresentation.................................................................... 31
C. STRICT (DEFECT) LIABILITY IN TORTS .............................................................................................................. 31
Professional Manufacturer + Injury + Product essentially the same + Injury resulted from defect in foreseeable
use ........................................................................................................................................................................ 31
A. DIFFERENCE BETWEEN 402A AND R3T ............................................................................................................. 31
B. 4 PART TEST FOR PLAINTIFF .............................................................................................................................. 32
C. MANUFACTURING DEFECTS—EXPERT TESTIMONY AND RES IPSA ................................................................... 32
D. DESIGN DEFECTS ............................................................................................................................................... 32
Uses the Risk Utility Test .................................................................................................................................... 32
E. WARNING DEFECTS ........................................................................................................................................... 32

IX. BURDEN SHIFTING EVENTS ........................................................................................................................... 34

X. MEDICAL CASES AND RULES ........................................................................................................................ 34
XI. LAST CLEAR CHANCE ...................................................................................................................................... 35

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 4
 Full Table of contents
OUTLINE WITH NOTES ............................................................................................................................................. 1
FULL TABLE OF CONTENTS ................................................................................................................................... 5
RESTATEMENT 3RD KEY ........................................................................................................................................... 9
R3T.PH § 8 Judge and Jury [74] ............................................................................................................................ 9
I. INTENTIONAL TORTS......................................................................................................................................... 9
A. CONCEPT OF INTENT ............................................................................................................................................ 9
R3T.PH§1 Intent [10] ............................................................................................................................................ 9
R3T.PH§2 Recklessness [13] ................................................................................................................................. 9
R3T.PH§5 Liability for intentional physical harm [15] ......................................................................................... 9
R3T.PH§33 Scope of liability for reckless and intentional tortfeasors [17] .......................................................... 9
B. BATTERY ............................................................................................................................................................. 9
R2T§13 Battery: Harmful Contact [19] ................................................................................................................. 9
R2T § 18 Battery: Offensive Contact [21] ........................................................................................................... 10
R2T § 19 What Constitutes Offensive Contact [22] ............................................................................................ 10
R3T.PH § 31 Preexisting Conditions and Unforeseeable Harm [156] ................................................................ 10
C. ASSAULT ............................................................................................................................................................ 10
R2T § 21 Assault [23] .......................................................................................................................................... 10
R2T § 31 Threat by Words [25] ........................................................................................................................... 10
R2T§16(1) Character of intent necessary [19] ..................................................................................................... 10
D. TRANSFERRED INTENT ...................................................................................................................................... 10
R2T § 16(2) Character of Intent Necessary [19] .................................................................................................. 10
E. TRESPASS TO LAND ........................................................................................................................................... 10
R2T § 158 Liability for Intentional Intrusions on Land [31] ............................................................................... 10
R2T § 163 Intended Intrusions Causing no Harm [32] ........................................................................................ 10
R2T § 164 Intrusion Under Mistake [33] ............................................................................................................. 10
General ................................................................................................................................................................. 10
F. TRESPASS TO CHATTELS.................................................................................................................................... 10
R2T § 217 Ways of Committing Trespass to Chattel [34] ................................................................................... 10
R2T § 218 Liability to Person in Possession [35] ................................................................................................ 10
R2T § 222A What Constitutes Conversion [38] .................................................................................................. 10
R2T § 229 Conversion by Receiving Possession in Consummation of Transaction [39] ................................... 11
G. DEFENSES: ........................................................................................................................................................ 11
INSANITY ................................................................................................................................................................... 11
CONSENT ................................................................................................................................................................... 11
R2T § 892 Meaning of Consent [50] ................................................................................................................... 11
SELF-DEFENSE........................................................................................................................................................... 11
R2T § 63 Self-Defense by Force Not Threatening Death or Serious Bodily Harm [41] .................................. 11
R2T § 65 Self-Defense by Force Threatening Death or Serious Bodily Harm [43].......................................... 11
DEFENSE OF PROPERTY ............................................................................................................................................. 12
R2T § 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm [47] ...................... 12
R2T § 85 Use of Mechanical Device Threatening Death or Serious Bodily Harm [50]...................................... 12
NECESSITY ................................................................................................................................................................. 12
R2T § 196 Public Necessity [53] ......................................................................................................................... 12
R2T § 197 Private Necessity [54] ........................................................................................................................ 12
II. NEGLIGENCE: ESTABLISHING REASONABILITY.................................................................................... 13
A. STANDARD OF CARE: REASONABLE PERSON .................................................................................................... 13
R3T.PH § 6 Liability for Negligence Causing Physical Harm [66]..................................................................... 13
R3T.PH § 10 Children [77] .................................................................................................................................. 13
R2T§283a Children .............................................................................................................................................. 13
R3T.PH § 11 Disability [79] ................................................................................................................................ 13
B. CALCULUS OF RISK FOR A REASONABLE PERSON............................................................................................. 13
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 R3T.PH § 3 Negligence [58] ................................................................................................................................ 13
R3T.PH § 12 Knowledge and Skills [82] ............................................................................................................. 14
C. ESTABLISHMENT OF STANDARD OF CARE BY LEGISLATURE: VIOLATION OF STATUTE (PER SE
NEGLIGENCE) ............................................................................................................................................................. 14
R3T.PH § 9 Emergency [75] ................................................................................................................................ 14
R3T.PH § 14 Statutory Violations as Negligence Per Se [88] ............................................................................. 14
R3T.PH § 15 Excused Violations [93] ................................................................................................................. 14
R3T.PH § 16 Statutory Compliance [96] ............................................................................................................. 14
D. PROOF OF NEGLIGENCE; USE OF CUSTOM AND EXPERT TESTIMONY................................................................ 14
Evidence of Custom: ............................................................................................................................................ 14
R3T.PH § 13 Custom [85] .................................................................................................................................... 14
Malpractice: .......................................................................................................................................................... 14
E. USE OF CIRCUMSTANTIAL EVIDENCE: RES IPSA LOQUITUR ............................................................................... 15
R3T.PH § 17 Res Ispsa Loquitur [99]: ................................................................................................................. 15
III. NEGLIGENCE: DUTIES ...................................................................................................................................... 16
A. DUTY NOT TO CREATE RISK OF PHYSICAL HARM ............................................................................................. 16
R3T.PH§7 Duty [68] ............................................................................................................................................ 16
R3T.PH.§4 Physical Harm [114] .......................................................................................................................... 16
R3T.PH§29 Limitations on Liability for Tortious Conduct [143]........................................................................ 16
The Risk-Creation Rule [RCR] as Strong Default ............................................................................................... 16
The RCR Conditioned on Foreseeable Harm or Risk .......................................................................................... 16
The RCR Conditioned on Foreseeable Plaintiff ................................................................................................... 16
B. AFFIRMATIVE DUTIES: ..................................................................................................................................... 16
R3T.PH § 37 No Duty of Care with Respect to Risks Not Created by Actor [182].......................................... 16
Policing the Line Between “Misfeasance” and “Nonfeasance” ........................................................................... 16
TO WARN ................................................................................................................................................................... 17
R3T.PH § 18 Negligent Failure to Warn [105] .................................................................................................... 17
BASED ON SPECIAL RELATIONSHIP ........................................................................................................................... 17
R3T.PH§40 Duty Based on Special Relationship with Another [191] ............................................................... 17
R3T.PH § 41 Duty to Third Parties Based on Special Relationship with Person Posing Risks [195] ............. 17
AFFIRMATIVE DUTY TO RESCUERS ........................................................................................................................... 17
R3T.PH § 44 Duty of a Rescuer [203] ................................................................................................................ 17
R3T.PH § 32 Liability of Torfeasor to Rescuers [159] ....................................................................................... 17
R2T § 322 Duty to Prevent Further Harm ............................................................................................................ 17
R3T.PH § 39 Duty Based on Prior Conduct Creating a Risk of Physical Harm [189]...................................... 17
C. LANDOWNER LIABILITY ..................................................................................................................................... 18
R3T.PH§49 Possessor of Land Defined [206] ..................................................................................................... 18
R3T.PH§50 Trespasser Defined [208] ................................................................................................................. 18
R3T.PH§51 General Duty of Land Possessors [209].......................................................................................... 18
R3T.PH§52 Duty to Flagrant Trespassers [216] ............................................................................................... 18
R3T.PH§54 Duty to Those Not on the Possessor's Land [225] .......................................................................... 18
R2T§339 Attractive Nuisance; Duty to Children .............................................................................................. 18
R3T.PH§32 Liability of Torfeasors to Rescuers [159] ........................................................................................ 19
D. STATUTORY DUTY ............................................................................................................................................. 19
E. NO-DUTY BASED ON PUBLIC POLICY ................................................................................................................ 19
F. IMMUNITIES ........................................................................................................................................................ 19
Charitable Immunity ............................................................................................................................................. 19
Interspousal Immunity .......................................................................................................................................... 19
R2T§895G Parent Child Immunity ...................................................................................................................... 19
Governmental Immunities .................................................................................................................................... 19
R2T§895J Deficient Mental Capacity .................................................................................................................. 19
IV. NEGLIGENCE: CAUSE ....................................................................................................................................... 20
A. CAUSE IN FACT—THE BUT FOR TEST AND THE NOTION OF “SUBSTANTIAL CAUSE” ....................................... 20

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 R3T.PH§26 Factual Cause [116] ......................................................................................................................... 20
R3T.PH§27 Multiple Sufficient Causes [125] ..................................................................................................... 20
R3T.PH§28 Burden of Proof [131] ...................................................................................................................... 20
B. MULTIPLE ACTORS CAUSE HARM ..................................................................................................................... 20
R3T.AL§10 Effect of Joint and Several Liability [337] ...................................................................................... 20
R3T.AL§15 Persons Acting in Concert [344]...................................................................................................... 20
R2T§876 Person Acting in Concert (R1T§876) [TB 379] ................................................................................... 20
C. PROXIMATE CAUSE ........................................................................................................................................... 21
“R3T.PH§29 Limitations on Liability for Tortious Conduct [143] ..................................................................... 21
V. REDUCTION OF RESPONSIBILITY: OTHERS’ CONDUCT AS A CONTRIBUTING CAUSE ............. 22
A. INTERVENING CAUSES AS SUPERSEDING CAUSES ............................................................................................. 22
Typical foreseeable intervening causes:............................................................................................................... 22
Whether intervening act is foreseeable: ............................................................................................................... 22
R2T§439 .............................................................................................................................................................. 22
R3T.PH§34 Intervening Acts and Superseding Causes [161] ............................................................................. 22
B. CONTRIBUTORY VS COMPARATIVE NEGLIGENCE BY STATE ............................................................................ 22
C. COMPARATIVE NEGLIGENCE ............................................................................................................................. 23
R3T.PH§25 Comparative Responsibility [290] ................................................................................................... 23
D. ASSUMPTION OF THE RISK ................................................................................................................................. 23
R3T.AL§2 Express Assumption of Risk [169].................................................................................................. 23
Implied Assumption of the Risk (R3T.AL § 3) ................................................................................................ 23
E. AVOIDABLE CONSEQUENCES ............................................................................................................................ 24
F. VICARIOUS LIABILITY ....................................................................................................................................... 24
R3Agency § 1.01.................................................................................................................................................. 24
R3Agency§2.04 Respondeat Superior [258]........................................................................................................ 24
R3Agency§7.03 Principal’s Liability – In general [253] ..................................................................................... 24
R3Agency§7.07 Scope of Employment ............................................................................................................... 24
R3Agency§2.03 Apparent Authority ................................................................................................................... 25
R3T.PH§55 Direct Liability in Negligence of Those Who Hire Independent Contractors [261] ........................ 25
R3T.PH§56 Duty Limitations as to Work Entrusted to an Independent Contractor [262] .................................. 25
VI. NEGLIGENCE: HARM ....................................................................................................................................... 26
A. EMOTIONAL HARM ............................................................................................................................................ 26
R3T.PH§45 Emotional Harm [229] ..................................................................................................................... 26
R3T.PH§47 NIED [237] ...................................................................................................................................... 26
R3T.PH§48 Bystander NIED [244] ................................................................................................................... 26
R3T.PH§46 IIED [230] ....................................................................................................................................... 26
R3T§32 Rescue of property ................................................................................................................................. 27
B. ECONOMIC INJURY: ........................................................................................................................................... 27
INTRODUCTION .......................................................................................................................................................... 27
R3T.EH § 1 .......................................................................................................................................................... 27
PERSONAL INJURY CONTEXT .................................................................................................................................... 27
R2D § 310 ............................................................................................................................................................ 27
R2D § 311 Misrepresentation and Physical Harm ............................................................................................... 27
FRAUDULENT MISREPRESENTATION ......................................................................................................................... 27
R2T § 525 Elements............................................................................................................................................. 27
R2T§526, cmt. e/f ................................................................................................................................................ 27
R2T§538 Materiality [TB 1269] .......................................................................................................................... 27
NEGLIGENT MISREPRESENTATION ............................................................................................................................ 28
R2T§552 Businessman Liability .......................................................................................................................... 28
VII. STRICT LIABILITY..................................................................................................................................... 29
A. ANIMALS............................................................................................................................................................ 29
R3T.PH§21 Intrusion by Livestock or Other Animals [282] ............................................................................... 29
R3T.PH§22 Wild Animals [284] ......................................................................................................................... 29
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 R3T.PH§23 Abnormally Dangerous Animals [286] ............................................................................................ 29
B. DANGEROUS ACTIVITIES.................................................................................................................................... 29
R3T.PH§20 Abnormally Dangerous Activities [275] .......................................................................................... 29
R2T§520: .............................................................................................................................................................. 29
VIII. PRODUCTS LIABILITY .............................................................................................................................. 30
R3T.PL§1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products [294] .......... 30
R2T§402A ............................................................................................................................................................ 30
A. NEGLIGENCE ACTIONS—OVERCOMING THE PRIVITY BARRIER (BETWEEN CONTRACTOR AND
CONTRACTEE) ............................................................................................................................................................ 30
B. MISREPRESENTATION AND BREACH OF WARRANTY ......................................................................................... 31
R3T.PL§9 Liability of Commercial Product Seller or Distributor for Harm Caused by Misrepresentation
[313] ..................................................................................................................................................................... 31
C. STRICT (DEFECT) LIABILITY IN TORTS .............................................................................................................. 31
R3T.PL§2 Categories of Product Defect [296] .................................................................................................... 31
A. DIFFERENCE BETWEEN 402A AND R3T ............................................................................................................. 31
B. 4 PART TEST FOR PLAINTIFF .............................................................................................................................. 32
C. MANUFACTURING DEFECTS—EXPERT TESTIMONY AND RES IPSA ................................................................... 32
D. DESIGN DEFECTS ............................................................................................................................................... 32
R3T.PL§6c [TB905] ............................................................................................................................................. 32
E. WARNING DEFECTS............................................................................................................................................ 32
R3T.PL§10 Post-Sale Failure to Warn [313] ....................................................................................................... 32
IX. BURDEN SHIFTING EVENTS ............................................................................................................................ 34
R3T.PH§28 Burden of Proof [131] ...................................................................................................................... 34
X. MEDICAL CASES AND RULES ......................................................................................................................... 34
Malpractice: .......................................................................................................................................................... 34
R3T.PH § 17 Res Ispsa Loquitur [99]: ................................................................................................................. 34
R3T.PH§26 Factual Cause [116] .......................................................................................................................... 34
R3Agency§2.03 Apparent Authority .................................................................................................................... 35
R3T.PH§55 Direct Liability in Negligence of Those Who Hire Independent Contractors [261] ........................ 35
R3T.PH§56 Duty Limitations as to Work Entrusted to an Independent Contractor [262]................................... 35
R3T.PL§6c [TB905] ............................................................................................................................................. 35
XI. LAST CLEAR CHANCE ...................................................................................................................................... 35
R2T§479 Last Clear Chance: Helpless Plaintiff................................................................................................... 36
R2T§480 Last Clear Chance: Inattentive Plaintiff ............................................................................................... 36

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 Restatement 3rd Key
AL: Apportionment of Liability
Int: Intentional Torts to Persons
EH: Liability for Economic Harm
PH: Liability for Physical and Emotional Harm
PL: Products Liability

Introductory Rules
 We have no precedent, legislature needs to figure it out
See Roberson v Rochester Folding Box Co.; unconsented photo
 For plaintiff to recover, he must have shown ordinary care and defendant not; burden on plaintiff
See Brown v Kendall; Dogs with the stick and the missing eye
R3T.PH § 8 Judge and Jury [74]
Jury is trier of fact
 Factual circumstances that establish a duty that are in question are up to a jury to decide (question of fact)
See Farwell v Keaton [MI]; dude’s night out

I. Intentional Torts
A. Concept of intent
A person acts with the intent to produce a consequence if the person acts with the purpose of producing that consequence; or
b) the person acts knowing that the consequence is substantially certain to result.
R3T.PH§1 Intent [10]
A person acts with the intent to produce a consequence if:
a) the person acts with the purpose of producing that consequence; or
See Jackson v Brantley [AL]; Horses jumped in road…died; defendant intentionally put horses on road
See Garratt v. Dailey; 5 year-old pulls out chair from aunt and tries to put it back, but she falls and is injured.
See Serna v. Statewide Contractors; two men were killed when a ditch caved in, in the months preceding inspectors had warned that
the sides of the ditch were not constructed properly and all warnings had been ignored. Court did not allow the action because the
act was not done knowingly and purposely with the direct object of injuring another.
See People v. Film Recovery Systems; FRS was recovering silver from film negatives by using cyanide with inadequate ventilation
that the employer knew about. The labels had warnings but the employer only hired workers who could not speak English. The
workers complained about the fumes and an inspector had warned. Eventually one worker died and several were seriously injured
because of poisoning. The corporate officers were convicted of involuntary manslaughter.
b) the person acts knowing that the consequence is substantially certain to result.
See Beauchamp v Dow Chemical Co [MI]; agent orange
 Felonious intent is not required, only the intent to do the act
See Weaver v Ward [UK]; soldiers skirmishing in training, plaintiff accidentally hits defendant
R3T.PH§2 Recklessness [13]
A person is reckless if:
the person knows the risk or knows facts that would make the risk obvious to a reasonable person, and
The precaution involves a slight burden,
which, by failing to take it, demonstrates the person’s indifference to the risk.
R3T.PH§5 Liability for intentional physical harm [15]
An actor who intentionally causes physical harm is subject to liability for that harm
R3T.PH§33 Scope of liability for reckless and intentional tortfeasors [17]
a) An actor who intentionally causes harm is liable even if the harm was unlikely
 Not limited to consequences that were intended
See Beauchamp v Dow Chemical Co [MI]; agent orange
b) Intentional/reckless harm has a greater range of liability than negligence (factors for determining the scope see text)
c) a tortfeasor is not liable for unrelated, but sequential harms

B. Battery
Intent (intended the contact) + Contact (harmful or offensive) (+ Egg Shell Skull)
R2T§13 Battery: Harmful Contact [19]
Battery if: a) he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such contact, and,
b) harmful contact directly or indirectly results
 Contacts to plaintiff extends to things he wears and holds

 9
 R2T § 18 Battery: Offensive Contact [21]
1) Battery if: a) he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such contact,
and,
b) offensive contact directly or indirectly results
2) actor must intend 1a), (you cannot recklessly/negligently offend someone)
R2T § 19 What Constitutes Offensive Contact [22]
A bodily contact is offensive if it offends a reasonable sense of personal dignity.
See Brzoska v Olson [DE]; dentist with AIDS
R3T.PH § 31 Preexisting Conditions and Unforeseeable Harm [156]
Eggshell skull: tortfeasor still liable

C. Assault
Intent + Immediate Apprehension of (Harmful Contact/Offensive Contact)
R2T § 21 Assault [23]
1) Assault if: a) he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such contact,
and,
See Dickens v Puryear [NC]; (imminent) threat for death and castration for sex with defendant’s minor daughter
b) the other is thereby put in imminent apprehension
2) actor must intend 1a), (you cannot recklessly/negligently offend someone)
R2T § 31 Threat by Words [25]
Words do not make the actor liable for assault unless circumstances put the other in reasonable apprehension
R2T§16(1) Character of intent necessary [19]
If you intend an offensive but not harmful contact, but the result is harmful, still liable
 to prove battery: bodily contact, it was offensive, defendant intended the contact
See Masters v Becker [NY]; kids on a truck

D. Transferred Intent
R2T § 16(2) Character of Intent Necessary [19]
One who intends to commit a tort but harms someone else, is responsible for the full extent
See Singer v Marx [CA]; Timmy throws rock at Barbie, hits Denise

E. Trespass to Land
Enters or causes to enter Or remains Or Fails to remove something
Accidental trespass, no liability; Mistaken trespass, liability
R2T § 158 Liability for Intentional Intrusions on Land [31]
Liable for trespass if he intentionally
a) enters or causes a thing or person to enter,
b) remains on the land,
c) fails to remove from the land a thing which he is under a duty to remove
R2T § 163 Intended Intrusions Causing no Harm [32]
Liable for trespass even if no harm (see easement)
R2T § 164 Intrusion Under Mistake [33]
Mistaken trespass is still trespass, unless some fraudulent inducement by landowner
General
 Mistake involves going on to someone else’s land thinking it is yours, trespass
 Accident is slipping and falling onto someone’s land, no trespass

F. Trespass to Chattels
Dispossessing Or Using Or Intermeddling with
R2T § 217 Ways of Committing Trespass to Chattel [34]
Dispossessing, using, or intermeddling with a chattel of another
R2T § 218 Liability to Person in Possession [35]
Subject to liability if you dispossess, impair quality, or deprive use of for a substantial time, or cause bodily harm to the
possessor due to trespass [stealing oxygen machine]
R2T § 222A What Constitutes Conversion [38]
1) Conversion is a subcategory in the extreme of trespass on chattels for the full value of the chattel
2) factors
 10
 R2T § 229 Conversion by Receiving Possession in Consummation of Transaction [39]
Buyer beware; A steals B’s book, A sells to C, C is liable to B

G. Defenses:
See also Comparative Negligence, pg. 23
Insanity
Not a true defense; it is a denial that plaintiff has proven an essential element, i.e., that the defendant intended harm
 Minority: dual-intent, intend action and harm (insanity can disprove intent to harm)
 Majority: just intend act (egg-shell skull)
See White v Muniz [CO]; Alzheimer’s diaper case
See Horton v. Reaves; a four-year old and three-year old dropped a baby who suffered skull injuries. While a child need not intend
the resulting harm, the child must understand that the contact may be harmful in order to be held liable for intentional battery. The
jury must examine objective evidence to determine if the child actors intended their actions to be harmful or offensive.
R2T 895J; Insane person acted intentionally if he intended contact, even if he didn’t appreciate it
See Wiliams v. Kearbey; age 14 defendant shot and wounded two at a shooting spree at his school. Court named R2T 895J. The
court justified imposing liability because it is more just for the insane person to bear the loss than the injured person. Someone must
bear the loss.
See Wagner v. State; plaintiff was attacked at K-Mart by a mentally disabled patient on a facility outing. Because of governmental
immunity, the state was immune from suit for assault or battery so the plaintiff claimed he intended to touch her but did not intend
it to be harmful or offensive. The court disagreed and held that the actor only needed to deliberately make the contact and it was
harmful or offensive.

Consent
R2T § 892 Meaning of Consent [50]
 Consent is required for otherwise offensive contact, except in emergency
See Mulloy v Hop Sang [Canada]; surgeon cuts of hand
 Scope of consent to harm is limited
See Lane v Holloway [UK]; old guy picks a fight with young guy, gets knocked out
 Must ask whether the plaintiff had legal capacity to give consent? Intoxication, insanity, etc.
1) Consent can be non-verbal, uncommunicated to the actor, action or inaction,
 (inferred) consent to a general activity assumes the risk of activity
See Hellriegel v Tholl [WA]; throwing kid into lake, paralyzed
R2T 892B: If consent is not induced by mistake, mistake does not invalidate consent
See Hackhart v. Cincinnati Bengals; Plaintiff tried to block a player and while Hackhart was on the ground, player hit him out of
frustration. Next day plaintiff was experiencing pain and it was found that he had a neck fracture. Court ruled for plaintiff because
not only is the intentional striking of others prohibited by rules of football but it is contrary to the general customs of the game.
2) if words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent
and are as effective as consent in fact
See Hellriegel v Tholl [WA]; throwing kid into lake, paralyzed

Self-Defense
Simply: a) Timing, authorized solely to prevent further intrusion that cannot be avoided by waiting for legal redress; b)
reasonable belief the threat is genuine; c) force must be proportional
R2T § 63 Self-Defense by Force Not Threatening Death or Serious Bodily Harm [41]
An actor may use reasonable self-defense, not to the point of likely or intended serious physical harm
 Self-defense limited to proportionality
See Lane v Holloway [UK]; old guy picks a fight with young guy, gets knocked out
Does not have to retreat or comply with a command when under no other duty to comply
R2T § 65 Self-Defense by Force Threatening Death or Serious Bodily Harm [43]
Self-defendant may use deadly force if threatened with deadly force, and
See Silas v Bowen [SC]; defendant shoots at ground, hits plaintiff’s foot
 Words must reasonably induce fear of serious bodily harm
See Silas v Bowen [SC]
Has no duty to retreat from own home, or to break off an arrest
 Person in own business has no duty to retreat
See Silas v Bowen [SC]
But there is a duty to retreat if in a public space and can be made safely (except for arrest)

 11
 R2T 63: Can defend with non-deadly force even if he can avoid injury by retreating
R2T 65: No deadly force is justified if retreat is possible unless on his property; minority
R2T 143: No deadly force allowed to prevent a felony unless felony threatens death or injury
R2T 131: Deadly force can be used to reasonably arrest a person for a felony
 R2T 76: Right to use force to protect third parties under same rules as defending himself
 Majority: no retreat requirement

Defense of Property
Like self-defense, but must request tortfeasor to leave; castle law
R2T § 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm [47]
Actor may use reasonable force (not to serious/deadly force) to prevent trespass if
a) intrusion is not privileged (or appears not privileged), and
b) reasonably believes force is only way, and
 Self-defense not applicable when trespassers are fleeing
See Brown v Martinez [NM]; watermelon stealing escapade
 No force = no justification for bodily harm/endangering life
See Brown v Martinez [NM]
c) “stop” has been said and ignored, or unreasonable/impracticable
 Misdemeanors do not justify use of deadly force
See Brown v Martinez [NM]
R2T 140: Force can’t be used to prevent commission of misdemeanor that doesn’t disturb peace
R2T § 85 Use of Mechanical Device Threatening Death or Serious Bodily Harm [50]
No spring loaded guns—property owner only has same right to defend property as if on site
See Katko v. Briney: Plaintiff had broken into old uninhabited house to steal antiques and when he entered a bedroom he was shot
in the legs by a spring shotgun. Court ruled for plaintiff with punitive damages.

Necessity
Public and private necessities
R2T § 196 Public Necessity [53]
Can enter land to avert public disaster
R2T § 197 Private Necessity [54]
1) Actor may enter land to prevent serious harm to
a) actor, or land, or chattels,
See Ploof v Putnam [VT]; nefarious pirates Ploof on a sloop; “privileged trespass”
b) see for third person;
2) actor liable for any harm done
 Private necessity may require taking of private property, but requires recompense
No recompense required if it was an accident from an act of God, in which case dock owner just loses
See Vincent v Lake Erie Transportation Co [MN]; ship beat up dock in storm, But employees continued to add ropes
R2T 197: Liable for damage caused in private necessity cases
R2T 263: Can commit trespass if reasonably believed necessary to protect person or property

See also R3T.PH§46 IIED [230], pg. 26

 12
 II. Negligence: Establishing Reasonability
A. Standard of Care: Reasonable Person
Reasonable person in the same circumstances; or for those in special circumstances (children, physically disabled, experts,
emergency), standard is a like person in the same circumstances
R3T.PH § 6 Liability for Negligence Causing Physical Harm [66]
An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope
of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable
Cmt. b, elements:
1) failure to exercise reasonable care,
See Vaughan v Menlove [UK]; burning hay stack, “I’ll chance it”; reasonable person
See Delair v McAdoo [PA]; really thinned tire blew out passing plaintiff; When a reasonable person would know something was
dangerous, required to take caution
2) factual cause,
3) physical harm,
4) harm within the scope of liability (hist. “proximate cause”)
 Duty of care is owed to reasonably foreseeable victims of your act
See Haley v London Electricity Board [UK]; blind man into a ditch
 Must use own property such that it won’t injure another
See Vaughan v Menlove [UK]
R3T.PH § 10 Children [77]
a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence,
and experience, except for b) and c)
See Charbonneau v MacRury [NH]; 17 year strikes and kills 3 year with a car
b) a child less than 5 years of age is incapable of negligence
c) the special rule in a) does not apply when the child is engaging in a dangerous activity that is characteristically
undertaken by adults
See Goss V Allen [NJ]; beginning minor skier runs into another (not adult); potentially hazardous
R2T 283A: Children engaging in adult activities held to same standard of care as adults
R2T§283a Children
Adds “under like circumstances” to Charbonneau
 Reasonable person of like age (when a minor), intelligence, and experience (diminished standard) (R1T§167)
See Charbonneau v MacRury [NH]; 17 year strikes and kills 3 year with a car
R3T.PH § 11 Disability [79]
a) the conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably
careful person with the same disability
See Haley v London Electricity Board [UK]; blind man into a ditch
b) the conduct of an actor during a period of sudden incapacitation is negligent only if the sudden incapacitation was
reasonably foreseeable to the actor
c) an actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor
is a child
 Cities owe a duty of care to those with foreseeable disabilities
See Haley v London Electricity Board [UK]; blind man into a ditch

B. Calculus of Risk for a Reasonable Person

Burden < Probability of injury X Cost of the injury, then defendant ought to have shouldered the burden
R3T.PH § 3 Negligence [58]
A person acts negligently if the person does not exercise reasonable care under all the circumstances.
Factors:
foreseeable likelihood of harm
foreseeable severity of harm
burden of precautions
 If Burden < Probability of injury X Cost of the injury (B<PL), then defendant ought to have shouldered the burden
See US v Carroll Towing Co [NY]; absent bargee, ship unmoored, sinks flour ship
But Pitre v Employers Liability Assurance Corp [LA]; baseball carnival game [although foreseeable, it wasn’t unreasonable to
disregard the risk]
R2T 291: Risk/utility approach for determining whether a risk is unreasonable
R2T 292: Factors considered in determining utility of conduct
R2T 293: Social value of interests are factors to be considered in unreasonableness
 Foreseeability determines negligence
 13
 See Barker v City of Philadelphia [PA]; paper bag + boy + garbage truck=…
 Foreseeability does not determine liability for consequences
See Barker v City of Philadelphia [PA]
R3T.PH § 12 Knowledge and Skills [82]
Special skills are considered as to whether the actor has behaved as a reasonably careful person
See Barker v City of Philadelphia [PA]; paper bag + boy + garbage truck=…

C. Establishment of Standard of Care by Legislature: Violation of Statute (Per Se Negligence)

The violation of the statute must causally contribute to the injury for it to trigger per se
R3T.PH § 9 Emergency [75]
Emergency situation is taken into account as to whether the actor has behaved as a reasonably careful person
R3T.PH § 14 Statutory Violations as Negligence Per Se [88]
An actor is negligent
if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct
causes, and
if the accident victim is within the class of persons the statute is designed to protect.
 Negligence per se establishes duty and breach, but not injury or cause
See Martin v Herzog [NY]; plaintiffs without lights struck by person driving on wrong side
 Negligence must contribute to injury for there to be liability
See Martin v Herzog [NY]
See Brown v Shyne [NY]; pseudo-chiropractor
See Tedla v Ellman [NY]; vagrant killed on a highway; for contributory negligence to matter, must be factually significant (causal)
to injury
R3T.PH § 15 Excused Violations [93]
An actor’s violation of a statute is excused if:
a) the violation is reasonable in light of childhood, physical disability, or incapacitation
b) actor exercises reasonable care in attempting to comply
c) the actor neither knows nor should know of the factual circumstances that render the statute applicable
d) the actor’s violation is because of confusing wording of the statute
e) the actor’s compliance with the statute would involve a greater risk than noncompliance
See Tedla v Ellman [NY]; vagrant killed on a highway
 Violation of statute in terms of establishing negligence per se can be excused when reasonable prudence allows
violation (e.g., emergency)
See Barnum v Williams [OR]; in the rain, car swerves into allegedly negligent motorcycle, held for cars
R3T.PH § 16 Statutory Compliance [96]
a) complying with the statute does not relieve liability for failing to adopt additional necessary precautions
b) if an actor’s adoption of a precaution would require the actor to violate a statute, the actor cannot be found negligent
for failing to adopt that precaution

D. Proof of Negligence; Use of Custom and Expert Testimony

Custom is mere evidence of a reasonable standard of care
 Trained professional (or one who claims he is a trained professional) is held to the standard of a professional
See Brown v Shyne [NY]; pseudo-chiropractor
Evidence of Custom:
R3T.PH § 13 Custom [85]
a) Compliance with custom is mere evidence of non-negligence
See Dempsey v Addison Crane Co [DC]; auxiliary jib crushes man, injures other; “industry practice”
See T.J. Hooper case: collision between two vessels, the tug was not equipped with radios and could not receive a storm warning.
Even though the industry custom had not yet adopted radio sets, reasonable prudence (test for negligence) may differ
R2T 299A: Similar locality rule
b) Departure of custom increasing risk is evidence of negligence, but does not require a finding of negligence
Malpractice:
 Physician/hospital is under a duty to use that degree of care and skill which is expected of a reasonably competent
(practioner in the same class to which he belongs)/hospital, acting in the same or similar circumstances
See Shilkret v Annapolis Emergency Hospital Association [MD]; brain damage in birthing
 Abandons strict locality rule in favor of national standard for both specialists and hospital
See Shilkret v Annapolis Emergency Hospital Association [MD]; brain damage in birthing
 Jury can find the current standard of medical care inadequate
See Helling v Carey [WA]; undiscovered glaucoma

 14
  Duty of disclosure for medical professionals if
1) risk is material,
2) are feasible alternatives,
3) if patient can be advised without detriment to his wellbeing
See Miller v Kennedy [WA]; biopsy of the kidney, standard was violated
See Canterbury v. Spence; unlimited discretion of the physician is irreconcilable with the basic right of the patient to make the
ultimate informed decision regarding course of treatment. Two exceptions: when patient is unconscious or incapable of consenting
and harm from failure to treat outweighs any harm threatened by proposed treatment, and when risk disclosure poses such a threat
of detriment to the patient.

E. Use of Circumstantial Evidence: Res Ipsa Loquitur

1) accident must be of a kind which usually does not occur without negligence; 2) caused by agency/instrumentality within the
exclusive control of the defendant
R3T.PH § 17 Res Ispsa Loquitur [99]:
The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of
accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant
member.
“Some rational connection” test, conditioned upon plaintiff’s lack of access to evidence- drafters show discomfort with this in this
R
See Byrne v Boadle [UK]; barrel fell out of warehouse
 Res ipsa requires
1) accident must be of a kind which usually does not occur without negligence
2) caused by agency/instrumentality within the exclusive control of the defendant,
R2T 328D: Control and management of instrumentality involved are probative but not logically necessary
3) not due to any voluntary action by the plaintiff
See Ybarra v Spangard [CA]; operating room patient sues everybody for arm atrophy; see also Multiple Actors Cause Harm, pg. 20
 Where patient made unconsciousness, all who have control over his/her body can be called on to disprove own
negligence
See Ybarra v Spangard [CA]; operating room patient sues everybody for arm atrophy
 Res ipsa relieves the plaintiff from the burden of producing direct evidence of negligence, but it does not relieve a
plaintiff from the burden of proof that the person charged with negligence was at fault. It requires evidence which
shows at least probability that a particular accident could not have occurred without legal wrong by the plaintiff
See George Foltis, Inc. v City of NY [NY]; water main bursts and damages plaintiff’s restraunt
 If defendant seeks directed verdict, must present evidence that destroys any inference of negligence
See Swiney v Malone Freight Lines [TN]; the wheels on the car keep falling off
See also R3T.PL§2 Categories of Product Defect [296], pg. 31

 15
 III. Negligence: Duties
A. Duty not to Create Risk of Physical Harm
Duty to exercise reasonable care when the actor's conduct creates a risk of physical harm; question of foreseeable harm or
foreseeable plaintiff
R3T.PH§7 Duty [68]
(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a
particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care
requires modification.
R3T.PH.§4 Physical Harm [114]
Physical harm means…physical harm (of body, property, or land)
R3T.PH§29 Limitations on Liability for Tortious Conduct [143]
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
The Risk-Creation Rule [RCR] as Strong Default
 Foreseeability of risk can be a basis for a question of breach, but not of duty (contra R2T§7b)
See Thompson v Kaczinski [IA]; trampoline blown into middle of road, plaintiff injured swerving
The RCR Conditioned on Foreseeable Harm or Risk
 Contra Thompson, duty applies if a general risk of harm is foreseeable
See Brown v Kerr [KY]; breakfast of champions
See Bryant v. Clastetter; surviving family of tow truck driver who was killed by third party while removing defendant’s car from
side of road sued because defendant was drunk driving and that’s why his car was being towed. While the defendant clearly had a
duty not to drive drunk, the harm suffered by the decedent was not of the kind normally expected as a consequences of drunk driving,
so no duty to plaintiff.
The RCR Conditioned on Foreseeable Plaintiff
 Duty is for foreseeable plaintiff
See Palsgraf v Long Island RR-Part 1 [NY]; scale falls on woman because of newspaper covered fireworks
 Andrew’s dissent: unreasonable risk means consequences are for any defendant, limited by proximate cause
See Palsgraf v Long Island RR-Part 1 [NY]
R3T 29: Adopts Andrewsian approach
See foreseeability in Proximate Cause, pg. 21; cause formulation

B. Affirmative Duties:
Generally, no such duties; except in special relationships or rescuer’s of defendant’s tortious conduct
R3T.PH § 37 No Duty of Care with Respect to Risks Not Created by Actor [182]
If an actor has not created a risk of harm, he has no duty of care (unless court finds an affirmative duty, §§38-44)
But Soldano v. O’Daniels: Patron of bar entered restaurant to ask to phone the police because a man was being threatened at the bar.
The employee refused and the decedent was killed. Court used policy reasons to allow the complaint and relied on R2T 327 which
states that someone who knows someone is giving necessary assistance and negligently prevents them from doing so is subject to
liability.
R2T 314: the fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not
of itself impose upon him a duty to take such action
Policy concerns: respect for personal freedom; fear of incompetent or marginal rescuer who does more harm than good
Policing the Line Between “Misfeasance” and “Nonfeasance”
 Non-feasance is failure to act
 Misfeasance is acting badly
 Nonfeasance is only actionable if there is a special duty of care; in a misfeasance, duty is automatic
See Price v E.I. DuPont de Nemours & Co [DE]; asbestos wife case
See Riedel v. ICI Americas; Riedel worked at an asbestos factory and ICI never supplied uniforms so he wore his work clothes home.
Mrs. Riedel developed asbestosis and sued and the court ruled that because she had claimed nonfeasance and failed to prove any
special relationship, there was no liability. On appeal she presented a theory of misfeasance but without any new facts and the court
explained that the underlying facts constituted nonfeasance.
See Harper v. Herman; defendant took four guests on his boat to go swimming. Defendant knew that lake was shallow enough to
use the ladder but deep enough to swim. Plaintiff dove into two-three feet deep water severing his spinal cord. The court classified
it as failure to warn nonfeasance and dismissed the claim for lack of affirmative duty.
See Randi W. v. Muroc School District; plaintiff sued former employers of VP of school who sexually molested her because they
gave him positive employment references despite knowing past charges of sexual misconduct. Court characterized this as
misfeasance and upheld an imposition of duty.

 16
To Warn
Where defendant created the risk
R3T.PH § 18 Negligent Failure to Warn [105]
a) where a defendant creates a risk, he is liable for failing to warn if
1) defendant knows or has reason to know of the risk, and that the plaintiff will be unaware,
2) a warning might have reduced risk
b) even if the defendant adequately warns of the risk that the defendant’s conduct creates, the defendant can fail to exercise
reasonable care by failing to adopt further precautions to protect against the risk if it is foreseeable that despite the warning
some risk of harm remains

Based on Special Relationship

Where public policy demands special attention by the defendant
R3T.PH§40 Duty Based on Special Relationship with Another [191]
a) an actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise
within the scope of the relationship
b) a list of the special relationships
 Present school had a special relationship and affirmative duty, past school committed misfeasance by unreserved
praise for teacher
See Randy W. vs Muroc J.U. School District [CA]; roving teacher-molester
 Special relationship existed because of research relationship, so they had an affirmative duty to protect from
unreasonable harm and declare existing risks
See Grimes v Kennedy Krieger Institute, Inc. [MD]; lead paint poison children
 Only duty of care to warn specific and identified victim
See Thompson v County of Alameda [CA]; juvenile offender threatens then kills defendant, sovereign immunity
 Policy considerations limit duty to warn anyone else
See Thompson v County of Alameda [CA]
See Johnson v. State of California; the state placed a minor with homicidal tendencies in the plaintiff’s home where he attacked her.
The state’s relationship with the plaintiff was such that its duty extended to warn of latent dangerous qualities suggested by the
parolee’s history. Duty to those who create a foreseeable peril.
See Tarasoff v. Regents of University of California; therapist has a duty to warn the foreseeable victim of danger after determining
that a patient posed a serious threat of violence. Special relationship exists between therapists and patient which may support
affirmative duties for the benefit of third parties. Decedent was specifically foreseeable and identifiable.
R3T.PH § 41 Duty to Third Parties Based on Special Relationship with Person Posing Risks [195]
An actor in a special relationship a) owes a duty of care to third parties within b) relationships

Affirmative Duty to Rescuers

Where defendant has caused a danger and put the other or a third person at risk of (further) harm; or where defendant has begun
a rescue
R3T.PH § 44 Duty of a Rescuer [203]
a) Once you take charge of rescuing someone imperiled and helpless, has a duty of reasonable care
b) When terminating a rescue, rescuer must not abandon the rescue effort unreasonably, if leaving in worse condition or
imminent peril of serious physical harm (Bengal tiger in the penguin cage going after fallen friend)
See Farwell v Keaton [MI]; dude’s night out; many courts are skeptical that a duty is inherent in a social venture itself
See Dumka v. Quaderer; man was ejected from roller rink because he was intoxicated and his friends put him in a car. The defendant
allowed friends to leave and reenter to check on him. Eventually he wandered off and was found dead. The court held that the roller
rink did not assume any duty to help and even if they had they fulfilled the duty by putting him in the custody of his friends.
See Mixon v. Dobbs Houses; husband told employer that his wife was expecting to give birth and might call for a ride to the hospital
and manager promised to tell if she called. Manager failed to deliver message and when he returned home, wife had given birth
alone. Court imposed a duty to follow through with the promise.
See also other places referencing rescue: 19, 22, and 27
R3T.PH § 32 Liability of Torfeasor to Rescuers [159]
A harms B (or B’s property). C attempts to save B (or property). A inadvertently harms C. A liable to C.
Generally, professional rescuers (Fireman’s Rule) have assumed the risk
R2T § 322 Duty to Prevent Further Harm
If actor causes harm, has a duty to prevent further harm
R3T.PH § 39 Duty Based on Prior Conduct Creating a Risk of Physical Harm [189]
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic
of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm
See Maldonado v Southern Pacific Transportation Co [AZ]; employees bounced train and caused plaintiff to fall and lost arm

 17
 See Tubbs v. Argus; plaintiff was injured when guest in defendant’s car. Defendant abandoned car and did not render aid. Court
relied on R2T 322 stating that plaintiff received injuries from instrumentality under defendant’s control and this is sufficient to
impose a duty to render reasonable aid and assistance.
R2T 322: If actor causes harm, has a duty to prevent further harm

C. Landowner Liability
Landowners owe a duty of reasonable care to every expected entrant; owes flagrant trespassers only not to intentionally
physically harm them
 Invitees are business people/consumers
R2T 332: Invitation Test, duty of reasonable care; duty to protect from concealed hazards and conditions owner could have
discovered through reasonable inspection
 Licensees are social guests
(declining) duty to refrain from willful injury and from wantonly and recklessly exposing him to danger; duty to protect against
concealed or known hazards
R3T.PH§49 Possessor of Land Defined [206]
Who is a possessor of land
R3T.PH§50 Trespasser Defined [208]
A trespasser is a person who enters or remains on land in the possession of another without the possessor’s consent or
other legal privilege.
 One is a trespasser if one contravenes one’s invitation
See Cochran v Burger King Corp [MO]; dumpster’s wall of doom
See Carter v. Kinney; Kinneys invited church to bible study and plaintiff came and slipped on the driveway and broke his leg.
Question was whether Kinneys owed a duty to protect him from the ice. Court ruled that the bible study was insufficient to sustain
invitee status and dismissed the claim because the Kinneys did not know of the danger.
See Seward v. Terminal Railroad; plaintiff fell through a ventilation opening in a bridge. There were no warnings or light and
plaintiff could not observe the drop below. Court found him to be a trespasser and no duty was owed to him unless he fit a no-duty
exception. In spite of frequent trespassers in the area, only one other person had ever fallen through the opening so the plaintiff did
not show constant trespassing. Trespassing on the bridge was not the same as trespassing by way of the openings.
R3T 52: Duty to use reasonable care with respect to flagrant trespassers if helpless or imperiled
R2T 337: known trespasser: duty to warn of known, highly dangerous, hidden, artificial conditions.
R2T 345(2): Police and firefighters as invitees
R2T 364-366, 368: Possessor of land is responsible for taking reasonable measure to protect against injuring people outside his land
R3T.PH§51 General Duty of Land Possessors [209]
A land owner owes a duty of reasonable care with regard to:
a) conduct by possessor that creates risks to entrants
b) artificial conditions that pose risks
c) natural conditions that pose risks
d) other risks based on affirmative duties in chapter 7
 Balancing test: the foreseeability of the crime risk on the property and gravity determine the existence and extent of
defendant’s duty. Greater foreseeability and gravity = greater duty of care
See Posecai v. Wal-Mart Stores, Inc. [LA]; woman robbed at Sams
 Totality of the circumstances test: takes additional factors into account, e.g., nature/condition of the land, history, other
factors bearing on foreseeability
See Posecai v. Wal-Mart Stores, Inc. [LA]; woman robbed at Sams; introduced in this case, but decided on balancing test
R3T.PH§52 Duty to Flagrant Trespassers [216]
a) Duty to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm
See Cochran v Burger King Corp [MO]; dumpster’s wall of doom
b) notwithstanding a), there is still a duty if trespasser is imperiled and helpless
c) possessors adjacent to a public walkway have no extra duty to maintain the walkway
 Abolished trichotomy (invitee, licensee, flagrant) in favor of a reasonable man standard for all land maintenance, except
to flagrant trespassers
See Rowland v. Christian [CA]; social guest injured in defendant’s bathroom
R3T.PH§54 Duty to Those Not on the Possessor's Land [225]
a) The possessor has a duty of reasonable care for artificial conditions that pose a risk of physical harm to persons or
property not on the land
b) for natural conditions, 1) possessor has a duty if the land is commercial, otherwise 2) only if the risk is obvious
 Invitees and licensees are owed the same duty, that of a reasonable man in the maintenance of his land
See Nelson v. Freeland [NC]; plaintiff trips over stick on porch
R2T§339 Attractive Nuisance; Duty to Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition
upon the land if
 18
 (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are
likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it
or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared
with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
See Bennett v. Stanley [OH]; child drowns, mom follows in neighbor’s pool
R3T.PH§32 Liability of Torfeasors to Rescuers [159]
A harms B. C attempts to save B. A inadvertently harms C. A liable to C.
See Bennett v. Stanley [OH]; child drowns, mom follows in neighbor’s pool
See also other places referencing rescue: 17, 22, and 27
D. Statutory Duty
If a statute says so…

E. No-Duty Based on Public Policy

 Public policy can limit duty to non-contractual relationships to prevent crushing exposure to liability (to big to fail…)
See Strauss v Belle Realty Co [NY]; power outage and old man falls in the basement
See Mock v. Rensselaer; water works company contracted with city and plaintiff sued when warehouse burned down because the
water company failed to supply sufficient water pressure to the city’s hydrants. Court denied recovery because the proposed
enlargement of the zone of duty would unduly extend liability.
See White v. Guarente; an accounting firm was retained to perform an audit and prepare taxes for a company. Court refused to
dismiss the action brought by a limited partner against the firm because the services of the accountant were not extended to an
unknown class of people but to a known group.
 Guests are responsible for own behavior and can best avoid the risks
See Graff v Beard [TX]; social host and drunk driver
 In the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty
to control the conduct of another, even if there exists the practical ability to do so
See Graff v Beard [TX]; social host and drunk driver
R2T 315; No general duty exists to control conduct of others
See El Chico v. Poole; Court created a duty to injured third parties on the part of commercial providers, which was subsequently
superseded by dram shop statutes. Common law duty of commercial vendors of alcohol not to serve patrons when they knew patron
was intoxicated and was going to drive.

F. Immunities
Many immunities have been reduced to explanations of a “reasonable man” standard; e.g., “a reasonable parent would…”
Charitable Immunity
Interspousal Immunity
R2T§895G Parent Child Immunity
(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-
child relationship, is otherwise privileged or is not tortious.
 Parental immunity is allowed in privileged cases regarding parental authority and discretion
See Brunner v. Hutchinson Division, Lear-Siegler, Inc. [SD]; Kid loses hand to grain auger
See Goller v. White; abrogated parental immunity except in cases where tortious conduct involved an exercise of parental authority
or discretion with respect to food, clothing housing, medical, dental, and other care.
Governmental Immunities
R2T§895J Deficient Mental Capacity
One who has deficient mental capacity is not immune from tort liability solely for that reason.

 19
 IV. Negligence: Cause
A. Cause in Fact—The But for Test and the Notion of “Substantial Cause”
Must ask whether defendant’s negligence caused the harm, not just whether his conduct caused it; plaintiff’s burden
R3T.PH§26 Factual Cause [116]
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the
harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.
Substantial factor test has not withstood the test of time
 “After this therefore because of this” is a fallacy—possibilities will not sustain a verdict
See Kramer Service v Wilkins [MS]; falling transom = skin cancer
 If unknown to doctor, out of range of experience to judge/juror
See Kramer Service v Wilkins [MS]
See Stubbs v. City of Rochester; City negligently allowed water to become contaminated by typhoid fever and plaintiff contracted
it. Plaintiff brought evidence that typhoid is often transmitted through contaminated water, water near his home was contaminated,
doctors thought water was the cause, other people who drank the water got typhoid. Defendant argued that he didn’t disprove all
possibilities. The court ruled that the plaintiff did not need to disprove all possible causes and circumstantial evidence was sufficient
to allow jury to infer causation.
 When difference of opinion among reputable doctors, jury may decide
See Daly v Bergstedt [MN]; slip and fall = breast cancer
R2T 431: Legal cause must be a substantial factor in bringing about harm
R3T.PH§27 Multiple Sufficient Causes [125]
If multiple acts occur that are independently sufficient to factually cause the harm, each act is regarded as a factual cause
of the harm.
See Kingston v Chicago & Northwest Railway Co [WI]; railroad double forest fire—unknown starter of second fire
See Cook v. Minneapolis; fire started by train merged with another of unknown origin and consumed plaintiff’s property. Fire was
set by human agency but agency wasn’t identified. Held that railroad company was not responsible for damage of both because the
origin of the other fire was not identified (no responsible origin). (Not applied in decision)
R3T.PH§28 Burden of Proof [131]
a) plaintiff has burden to prove factual cause of harm
b) if plaintiff has shown someone in a group of defendants has caused his harm and cannot be any more specific, burden
shifts to the defendants for proving who dun it

B. Multiple Actors Cause Harm

All defendants are fully liable for the harm, but plaintiff may only recover up to 100%
R3T.AL§10 Effect of Joint and Several Liability [337]
When, under applicable law, some persons are jointly and severally liable to an injured person, the injured person may
sue for and recover the full amount of recoverable damages from any jointly and severally liable person.
R3T.AL§15 Persons Acting in Concert [344]
When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of
comparative responsibility assigned to each person engaged in concerted activity.
A, B, C owe D $10k for harm. A and B are broke. C must pay $10k.
See Kingston v Chicago & Northwest Railway Co; railroad double forest fire—unknown starter of second fire
R2T§876 Person Acting in Concert (R1T§876) [TB 379]
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) orders or induces the conduct, if he knows or should know of circumstances that would make the conduct tortious if
it were his own, or
(b) conducts an activity with the aid of the other and is negligent in employing him, or
(c) permits the other to act upon his premises or with his instrumentalities, knowing or having reason to know that the
other is acting or will act tortiously, or
(d) controls, or has a duty to use care to control, the conduct of the other, who is likely to do harm if not controlled, and
fails to exercise care in the control, or
(e) has a duty to provide protection for, or to have care used for the protection of, third persons or their property and
confides the performance of the duty to the other, who causes or fails to avert the harm by failing to perform the duty.
 If two act independently and negligently, burden shifts to defendants to prove individual extent of culpability
See Summers v Tice [CA]; hunting party, 2 hit the third aiming at the bird
See also Ybarra v Spangard [CA]; Operating room patient sues everybody for arm atrophy; see also Use of Circumstantial Evidence:
Res Ipsa Loquitur, pg. 15
R2T 433B; liability for both defendants when harm is caused by one but uncertain which one
R3T 28b; burden of proof in these circumstances shifts to defendants

 20
 See Haft v Lone Palm Hotel; father and son drowned in hotel pool because there was no lifeguard or sign advertising that fact along
with other violations. The court ruled that their legal responsibility would be judged on the basis of not having a lifeguard because
they didn’t post a sign stating there wouldn’t be one and the burden of persuasion was on the defendants.

 Slight majority: Where doctor negligently reduced chance of recovery, lost chance (even if less than 50% originally)
is compensable
See Matsuyama v Birnbaum [MA]; loss of chance of survival fighting gastric cancer
See Herskovits v. Group Health; all or nothing rule is inadequate because it provides a blanket release for doctors and hospitals any
time there is a less than 50% chance of survival regardless how flagrant the negligence. Any loss of chance is harm.

C. Proximate Cause
For the negligent cause to be the proximate cause, the resulting harm must be within the scope of the risk the actor took; it is a
question of foreseeability
“R3T.PH§29 Limitations on Liability for Tortious Conduct [143]
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
 Proximate Cause” is a concept used to limit liability to the foreseeable consequences of a negligent act
 Direct cause formulation: if defendant is guilty of negligence, defendant is responsible for all the direct consequences,
whether reasonably foreseeable or not
See In re an Arbitration Between Polemis and Furness, Withy & Co., Ltd. [UK]; dropped plank explodes ship; “once an act is
negligent the fact that its exact operation was not foreseen is immaterial; foreseeability is relevant to establishing negligence, but
once established, not for damages”
 Foreseeability: what a reasonable person under the circumstances would foresee; exact consequences need not be
foreseeable
o Reasonable foreseeability of consequences is the limit on recoverable loss/injury (destroys Polemis); “whether the
damage is of such kind as the reasonable man in defendant’s circumstances would have foreseen”
See Overseas Tankship (U.K.) Ltd. v Mort’s Dock & Engineering Co., Ltd. (The Wagon Mound 1) [UK]; “Inflammable” oil
spilled on water
o Reasonable foreseeability of the general injury type establishes liability for negligence, even when cause is not
foreseeable
See Hughes v Lord Advocate [UK]; kids play, exploding manhole
o Duty of care extends to foreseeable particular types of injuries within zone of danger
See Doughty v Turner Manufacturing Co. [UK]; molten metal bath
Not to be confused with Zone of Danger in Emotional Harm, pg. 26
o Majority: where the damages resulted from the same physical forces whose existence required the exercise of greater
care than was displayed and were of the same general sort that was expectable, unforeseeability of the exact
developments and of the extent of the loss will not limit liability
See Petition of Kinsman Transit Co. [NY]; (doomed) bridge of doom
o If a reasonable man can foresee and prevent a risk, then he is liable for the foreseeable damages, even if they are a
remote possibility (broader than 1)
See Overseas Tankship (U.K.) Ltd. v The Miller Steamship Co. Pty. (The Wagon Mound 2) [UK]
See Bolton v. Stone; member of a cricket team drove a ball onto an adjacent road and injured a woman. Because it had happened
before and thus was a possibility, it was foreseeable, but the risk was so small that in the circumstances a reasonable man would
have been justified in disregarding it and taking no steps to eliminate it.
o If someone is found negligent, he should be liable for every result that flows naturally and continuously—liable for
the foreseeable consequences of the foreseeable injury
See Palsgraf v Long Island RR [dissent] [NY]
See foreseeability in The Risk-Creation Rule [RCR] as Strong Default, pg. 16; duty formulation

 21
 V. Reduction of Responsibility: Others’ Conduct as a Contributing Cause
A. Intervening Causes as Superseding Causes
A break in the causal chain
Typical foreseeable intervening causes:
 Malpractice: if a doctor makes injury worse
 Rescue (“danger invites rescue”): liable to extra damage a rescuer does and injury the rescuer sustains: 17, 19, and 27
 Reaction/protection forces: people stampeding from fear
 Act of God: if foreseeable, defendant is responsible
Whether intervening act is foreseeable:
 If the type of intervening negligent act is at all foreseeable, even if the specific intervening act is not, the original
tortfeasor will normally be liable
 Where the intervening negligence is considered unforeseeable, the originally negligent party will usually escape
liability
o Grossness of intervening negligence is a factor
o The more reckless the intervening act is, the more likely it is held to be unforeseeable/not the proximate cause
R2T§439
If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact
that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act
is also a substantial factor in bringing about the harm does not protect the actor from liability.
A acts negligently, but requires B’s innocent (or not) action for A’s to be harmful. A is nevertheless fully liable.
R3T.PH§34 Intervening Acts and Superseding Causes [161]
When a force of nature or an independent act is also a factual cause of harm, an actor’s liability is limited to those harms
that result from the risks that made the actor’s conduct tortious.
 Original negligent actor is not relieved of liability by the subsequent negligent acts of another
See Glasgow Realty Co. v Metcalfe [KY]; Marty’s window of doom
See McLaughlin v. Mine Safety; heat blocks supplied by a fireman were used by a nurse on a drowning victim but because they were
not wrapped, the plaintiff was badly burned. The court held that the warnings on the blocks were inadequate but a representative
had warned the firemen during demonstration to wrap the blocks. The court held that the gross negligence of the fireman in failing
to warn was not foreseeable so the manufacturer was not liable.
 Act of third person [thief] intervening and contributing a condition necessary [theft] to the injurious effect [loss of
goods] of the original negligence [incapacitating guard] will not excuse the first wrong doer if the act should have been
foreseen
See Brauer v NY Central & Hudson River RR [NJ]; train accident, buggy scatters goods which are stolen

B. Contributory vs Comparative Negligence by State

Most states place the burden of persuasion on the issue of contributory negligence on defendant: treated as an affirmative
defense
 Pure comparative responsibility: AK, AZ, CA, FL, KY, LA, MS, MO, NM, NY, RI, SD, WA
 Modified comparative: AR, CO, CT, DE, GA, HI, ID, IL, IN, IA, KS, ME, MA, MI, MN, MT, NE, NV, NH, NJ, ND, OH, OK, OR,
PA, SC, TN, TX, UT, VT, WV, WI, WY
 Contributory: AL, MD, NC, VA, DC, see Last Clear Chance, pg. 35
 FL- pure comparative negligence
 GA- modified- can recover proportionate amount of damage is less than others
 AL, MD, DC- barred from recovery if any negligence at all- contributory negligence
 NC, VA- contributory negligence but there is legislation applying comparative negligence to certain actions.
 WV- modified comparative negligence
 WI, CT, HI, IO, MA, MN, MT, NV, NH, NJ, OH, OK, OR, PA, VT, WY- most popular form (WI)-if negligence was less than or
equal to than defendant’s negligence, recovery is permitted.
 AR, GA, CO, ME- plaintiff can recover proportionate amount of damages if the plaintiff’s negligence was less than that of the
defendant. (ME- damages must be reduced to such extent as the jury thinks just and equitable in regard to the claimant’s share in
responsibility)
 MS- pure comparative negligence
 NE, SD- plaintiff can recover a proportion of the damages if the negligence is slight and the defendant’s negligent is gross in
comparison.

 22
C. Comparative Negligence
See also Defenses:, pg 11
Questions:
Whether plaintiff’s conduct fell short of reasonable care under the circumstances and the negligent conduct is a cause in fact
of injury?
 What is the effect of plaintiff’s negligence, the factual cause of injury to plaintiff:
o Contributory negligence: complete defense to defendant
o Comparable negligence: reduces plaintiff’s recovery

Majority: “if the negligence was not greater than the negligence of the person against whom recovery is sought”
 Most states place burden of persuasion on the issue of contributory negligence on defendant; treated as an affirmative
defense
 Last clear chance and other historical stages got absorbed by comparative negligence; see Last Clear Chance, pg. 35
R3T.PH§25 Comparative Responsibility [290]
Comparative negligence is the theory that a plaintiff is prevented from recovering only that proportion of his damages for
which he is responsible
 The jury should apportion the negligence of the plaintiff and the negligence of the defendant; then, in reaching the
amount due the plaintiff, the jury should give the plaintiff only such an amount proportioned with his negligence and
the negligence of the defendant.
See Hoffman v Jones [FL]; no facts
 A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or
exceed the combined negligence or fault of the other parties involved in the accident
See Bradley v Appalachian Power Co. [WV]; no facts
 Policy question: should a jury be told or not about the effect of its apportionment of liability?

D. Assumption of the Risk

Assumption of risk requires a showing that plaintiff actually knew of the danger and chose to proceed
R3T.AL§2 Express Assumption of Risk [169]
When permitted by contract, waiver of liability is binding, even on comparative evaluations of negligence.
 Complete defense; enforceable contract relieves defendant of responsibility
 Parties are generally permitted to agree in advance that one is under no obligation of care for the benefit of the other,
and shall not be liable for the consequences of conduct which would otherwise be negligent.
See La Frenz v Lake County Fair Board [IN]; demolition derby
 Exceptions for enforcing exculpatory agreements: unequal bargaining power because of relationship of parties and
because of public interest in the activity
See La Frenz v Lake County Fair Board [IN]

Implied Assumption of the Risk (R3T.AL § 3)

 Implied assumption of the risk, governed by a subjective standard
1) Knowledge on the part of the injured party of a condition inconsistent with his safety
2) Appreciation of the danger
3) A deliberate and voluntary choice to expose himself to that danger in such a manner as to register assent on the continuance of
the danger
See Herod v Grant [MS]; plaintiff falls out of truck while friend tries to run’em down
 Courts will apply an objective standard that all ordinarily intelligent people would know
See Herod v Grant [MS]
 Implied assumption of the risk has three subcategories
See Auckenthaler v Grundmeyer [NV]; bad horse day; this case lists the three subcategories
o Plaintiff voluntarily accepts known risks and the defendant has no duty of care (spectator at a baseball game)
See Jones v Three Rivers Management Corp [PA]; baseball stadium, hit by ball in concourse
Also Jones v Three Rivers; defendant’s “no-duty” only applies to risks which are common, frequent, and expected
See Lee v. National League Baseball; plaintiff was trampled by fans chasing a foul ball while sitting in a box seat because the
ushers normally present had been withdrawn. Since there was no record of comparable injury, plaintiff had no knowledge of risk
and court ruled for plaintiff.
o Plaintiff voluntarily encounters a known risk created by defendant’s negligence (plaintiff continues to use a defective
lawn mower because it is too much trouble to fix)
o Plaintiff unreasonably accepts a known threat (unnecessary and expedient shortcut to his destination, confronting
known hazards)

 23
 Assumption of Risk for Recreational Activities
 Majority: no liability unless action is intentional or so reckless as to be totally outside the range of ordinary activities
See Auckenthaler v Grundmeyer [NV]; bad horse day
See Ordway v. Superior Court; implied assumption of risk remains a viable defense after the adoption of comparative fault in
California. Plaintiff was a jockey who was injured when thrown from mount and horse fell after horse got tangled with another
horse. First jockey had violated the rules by crossing over without sufficient clearance. By participating in the race the plaintiff
consented to participate in a dangerous activity.
 Minority: NV abrogated all forms of implied assumption of risk: such cases should be resolved by applying a
traditional negligence standard of care, because it is more malleable and easy for a jury to apply
See Auckenthaler v Grundmeyer [NV]; bad horse day

E. Avoidable Consequences
R2T 918: Mitigation required after an accident
R3T 3: Duty to mitigate within comparative responsibility concept

F. Vicarious Liability
Employers are liable when employee acts within the scope of employment (performing assigned work or in a course of conduct
subject to the employer’s control; another way: 1) whether the enterprise of the employer would have benefitted by the
context of the act of the employee but for the unfortunate event, 2) Whether the employer’s risks are incident to the enterprise)
Apparent authority: conduct by the principal leads plaintiff to believe agent acts for principal; plaintiff so believes
R3Agency § 1.01
Agency relationship exists when a person manifests assent to another that they will act on the principal’s behalf and the
agent manifests assent
R3Agency§2.04 Respondeat Superior [258]
An employer is subject to liability for
torts committed by employees
while acting within the scope of their employment
See Wong-Leong v HI Indp Refinery, Inc [HI]; alcohol on company premises kills 3rd party in car accident
R3Agency§7.03 Principal’s Liability – In general [253]
1) A principal is subject to direct liability to a third party harmed by an agent’s conduct when
a) the agent acts with actual authority or principal ratifies
i) agent’s conduct is tortious, or
ii) if the principal had done the same act, principal would have been liable
b) principal is negligent in relation to the agent
c) principal delegates the duty of care and agent fails
2) A principal is subject to vicarious liability to a third party harmed by an agent’s conduct when
a) 7.07
b) apparent authority (purportedly on behalf of the principal)
R3Agency§7.07 Scope of Employment
(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of
employment.
(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in
a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it
occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
(3) For purposes of this section,
(a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's
performance of work, and
(b) the fact that work is performed gratuitously does not relieve a principal of liability.
 Scope of Employment: 1) whether the enterprise of the employer would have benefitted by the context of the act of
the employee but for the unfortunate event, 2) Whether the employer’s risks are incident to the enterprise
See Wong-Leong v HI Indp Refinery, Inc [HI]; alcohol on company premises kills 3rd party in car accident
R2Agency 228: Scope of employment: if it is of the kind employed to perform, it occurs substantially within the authorized time
and space limits, it is actuated by a purpose to serve the master
See Henderson; employer sent several employees for a painting job and allowed one worker to use a company car to attend an
unrelated party. Employee got drunk and collided with plaintiff and injured him. Court held that enterprise theory did not apply
because the acts did not occur during work hours and were not acted to serve the employer. The only connection was the car.
See Kang; defendant was sent on work trip and paid him a food and housing allowance as well as reimbursed him for travel.
Employee got drunk at bar and collided with plaintiff’s vehicle. Plaintiff sued employer for respondeat superior and court held that
defendant was not acting to serve the employer at the time and the accident occurred several hours after work. Where an employee
is hired in one locality and relocated to another for an indefinite period of time, any act of the employee before, during, or after his
working hours is within the scope of his employee as long as he works for the employer in the latter locality.
 24
 See Costa; after drinking at work, employee collided with plaintiff. Court held that while he did drink on premises, he didn’t discuss
business and he was not acting within the scope of employment, his actions were for his own benefit and not the company’s
R3Agency§2.03 Apparent Authority
Apparent authority is the
power held by an agent or other actor
to affect a principal's legal relations with third parties
when a third party reasonably believes the actor has authority to act on behalf of the principal and
that belief is traceable to the principal's manifestations.
 Two elements standard of apparent authority within torts:
o Conduct by the principal that would lead a person to reasonably believe that another person acts on principal’s behalf
o Acceptance of the agent’s service by one who reasonably believes it is rendered on behalf of the principal
See Jones v HealthSouth Treasure Valley Hosp. [ID]; pressure cuff on bag at hospital
R2T 429: Liability imputed to principle who employs independent contractor accepted in the reasonable belief that services are
being rendered by the employer
R3T.PH§55 Direct Liability in Negligence of Those Who Hire Independent Contractors [261]
An actor
1) who hires a contractor to perform an activity that creates a risk of physical harm, or
2) who hires a contractor to complete an affirmative duty per §§38-44
is subject to liability for physical harm when the actor’s negligence is a factual cause
See Jones v HealthSouth Treasure Valley Hosp. [ID]; pressure cuff on bag at hospital
R3T.PH§56 Duty Limitations as to Work Entrusted to an Independent Contractor [262]
a) An actor who entrusts work to an independent contractor owes no duty as to the manner in which the work is performed
unless
b) the actor retains control over any part of the work

 25
 VI. Negligence: Harm
A. Emotional Harm
NIED: must be added to other tort claim; danger + emotional harm results; negligent conduct in relation to special activities
(e.g., dealings with corpses)
Bystander NIED: bystander perceives 1) the injury 2) contemporaneously, is 3) a close family member of the injured, 4) severe
emotional distress
R3T.PH§45 Emotional Harm [229]
“Emotional harm” means impairment or injury to a person’s emotional tranquility.
R3T.PH§47 NIED [237]
An actor whose negligent conduct causes serious emotional harm to another is liable if the conduct
a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
 Zone of Danger Rule: 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 physical injury rather than fright
See Falzone v Busch [NJ]; scared wife, poor husband hit by car
Not to be confused with Zone of Danger in Proximate Cause, pg. 21
R2T 436A: Inability to sleep, loss of appetite, nausea and dizziness are not sufficient bodily harm
b) occurs in the course of specific activities or relationships in which negligent conduct is especially likely to cause serious
emotional harm [dealing with the dead]
 Rowland factors for NIED:
o foreseeability of harm to the plaintiff
o the degree of certainty that the plaintiff suffered injury
o the closeness of the connection between the defendant’s conduct and the injury suffered
o the moral blame attached
o the policy of preventing future harm; the extent of the burden to the defendant
o consequences to the community of imposing a duty
o availability, cost, and prevalence of insurance for the risk involved
See Catsouras v. Department of the CA Hwy Patrol [CA]; daughter decapitated
See Christensen; class action brought against mortuaries for mishandling and mutilating human remains. Court held that the class
of persons who may recover for emotional distress negligently caused by the defendants is not limited to those who have the statutory
right (contracted with the mortuary) to control disposition of the remains, the potential plaintiff must be a person to whom the
defendant owes a duty. In this context, to close family members.
 One can bring an NIED claim where one is a direct victim (foreseeability) and the ED is either medically significant in
nature or there is some guarantee of genuineness in circumstances of case
See Molien v Kaiser [CA]; syphilis?
R3T.PH§48 Bystander NIED [244]
Bystander NIED: bystander perceives the event contemporaneously, and is a close family member of the injured
 Cause of action of NIED:
1) death or serious physical injury caused by defendant’s negligence;
2) intimate, familial relationship;
3) observation at the scene;
4) results in severe emotional distress
See Portee v Jaffee [NJ]; mother watches child crushed in elevator
See Dillon v. Legg; three factors determine whether emotional injury would be compensable because foreseeable: whether plaintiff
was located near the accident, whether shock was from contemporaneous viewing, whether plaintiff and victim were closely related
R3T.PH§46 IIED [230]
An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is
subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm.
 IIED in MD: to succeed on IIED, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in
extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress
See Snyder v Phelps [US]; Westboro protests soldier’s funeral
 For bystander IIED the original tort must be outrageous
See Star v Rabello [NV]; fight between moms and kid watched
R2T 46(2): If conduct was directed at a third person, actor is subject to liability if he intentionally or recklessly causes severe
emotional distress to someone present at the time
 1st amendment protects speech of public concern from tort action
See Snyder v Phelps [US]; Westboro protests soldier’s funeral
IIED belongs more properly in Intentional Torts, pg. 9
 26
 R3T§32 Rescue of property
A harms B (or B’s property). C attempts to save B (or property). A inadvertently harms C. A liable to C.
[class example: owner tried to rescue maltipoo and was injured in the rescue; bigger dog owner liable]
 Pets/property don’t count for NIED
See McDougall v Lamm [NJ]; maltipoo killed by bigger dog
See also other places referencing rescue: 17, 19, and 22
 No general duty not to commit NIED; only can be brought in connection to another tort
See Boyles v Kerr [TX]; sex tape, tort of outrage, intentional IED
See St. Elizabeth Hospital v. Garrard; hospital negligently disposed of Garrard’s stillborn baby in an unmarked grave and Garrards
sued for NIED without any physical injury. Court abolished the physical manifestation requirement and created a duty not to inflict
reasonably foreseeable emotional distress. (Boyles court overrules independent cause of NIED)

B. Economic Injury:
Parasitic economic loss: loss that accompanies loss or damage to property or persons
Pure economic loss: no damage to property or persons; “no duty” rule

Introduction
R3T.EH § 1
Majority, Economic loss rule: economic loss alone will not warrant recovery in the absence of some special relationship
between the plaintiff and the tortfeasor
See Aikens v Debow [WV]; knocked out bridge on way to Econolodge
 But, Minority: A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic
damages, aside from physical injury, to particular plaintiffs or plaintiffs comprising an identifiable class with respect
to whom defendant knows or has reason to know are likely to suffer such damages from its conduct.
See Aikens v Debow [WV; knocked out bridge on way to Econolodge
 If there is physical contact, all subsequent economic loss is recoverable
See Aikens v Debow [WV]; knocked out bridge on way to Econolodge

Personal Injury Context

R2D § 310
Requires reasonable reliance on false statements; otherwise, no liability (e.g., fiction, story telling)
R2D § 311 Misrepresentation and Physical Harm
If a defendant misrepresents and if a person suffers harm as a result of relying on it, the defendant is liable for full tort
damages

Fraudulent Misrepresentation
Misrepresents a material fact, knowing he speaks with more surety than he has, to induce plaintiff to act/refrain, the other acts
R2T § 525 Elements
A misrepresentation of a material fact
The misrepresentation is made fraudulently; the misrepresentor
 Knows or believes that the matter is not as he represents it to be, or
 Does not have the confidence in the accuracy of his representation that the states or implies, or
 Knows that he does not have the basis for his representation that he states or implies
The misrepresentation is made to induce another to act or refrain in reliance upon it
The other justifiably relies [different from “reasonably relies” to allow for subjective perspective]
R2T§526, cmt. e/f
A person misrepresents a fact by asserting that that the maker knows it to be so, but in fact has merely a belief in its
existence and recognizes that there is a chance that the fact may not be as it is represented; “reckless misrepresentation”
R2T 311; If defendant intentionally or negligently gives false information and a person suffers physical harm as a result of relying
on the info, defendant is liable
R2T 402B, R3T 9: Cause of action for innocent misrepresentation if defendant engaged in business of selling chattels, misrepresents
to public, and physical harm results
R2T§538 Materiality [TB 1269]
2) the matter is material if
a) a reasonable man would attach importance to its existence or non existence in determining his choice of action in the
transaction in question; or

 27
 b) the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter
as important tin determining his choice of action, although a reasonable man would not so regard it
 Fraud exists not only when speakers know their statements are false, but also when the statements are made in such a
reckless manner that the law will presume them to be made with knowledge
See Follo v Florindo [VT]; Bed and breakfast
R2T 550: Even in the absence of duty, fraud includes acts to conceal, create a false impression, mislead or otherwise deceive to
prevent a party from acquiring material info
R2T 533: Third party can establish fraud as long as the maker intends or expects that the misrepresentation will be communicated
and relied on by the third party

Negligent Misrepresentation
Inaccurate information negligently supplied
R2T§552 Businessman Liability
For the defendant to have liability, the injured party must prove:
1. Inaccurate information,
2. Negligently supplied,
3. In the course of an [accountant’s] professional endeavors,
4. To a third person or limited group of third persons for whose benefit and guidance [the accountant] actually intends or
knows will receive the information
5. For a transaction (or for a substantially similar transaction) that [the accountant] actually intends to influence or knows
that the recipient so intends,
6. With the result that the third party justifiably relies on such misinformation to his detriment
 Duty limits for negligent misrepresentation is limited to foreseeable injurees (Majority)
See Ellis v Grant Thornton LLP [WV]; Keystone auditor bamboozled; new bank president

 28
 VII. Strict liability
A. Animals
R3T.PH§21 Intrusion by Livestock or Other Animals [282]
An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is
subject to strict liability for physical harm caused by the intrusion
R3T.PH§22 Wild Animals [284]
a) an owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal
b) a wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are
likely, unless restrained, to cause personal injury.
R3T.PH§23 Abnormally Dangerous Animals [286]
An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies
abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues
from that dangerous tendency.
 A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class
is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it
from doing harm
But Duren v Kunkel [MO]; attack bull smells castrated brethren

B. Dangerous Activities
An activity is abnormally dangerous if the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors, and it is not an activity of common usage (e.g., cars, electricity through wires)
R3T.PH§20 Abnormally Dangerous Activities [275]
a) an actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from
the activity
b) an activity is abnormally dangerous if:
1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised
by all actors; and
2) the activity is not one of common usage
 The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if
it escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for all the damage which is
the natural consequence of its escape
See Rylands v Fletcher (1) [UK]; coal mine floods from mill pond
 Distinction between natural and unnatural introduction; water barrier removed (Smith v Kenrick) vs introduced (Baird
v Williamson)
See Rylands v Fletcher (2) [UK]
 Rejects Rylands: No liability without fault or negligence (justified on public policy)
See Losee v Buchanan [NY]; steam boiler blows up and damages plaintiff’s property
Cmt. j: an activity is plainly of common usage if it is carried on by a large fraction of the people in the community. For
example, cars. However, activities can be in common usage even if they are engaged in by only a limited number of
actors: electricity, or gas
R2T§520:
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(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; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
 The defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the
place where it is maintained, in the light of the character of that place and its surroundings
See Klein v Pyrodyne Corporation [WA]; fireworks strike plaintiffs; holds against fireworks-unique ruling in US
 Abnormal dangerousness is an attribute of an activity not a product
See Indiana Harbor Belt RR Co v American Cyanamid Co [US]; train moving dangerous chemicals
 Strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for
such responsibility.
See Foster v Preston Mill Co [WA]; mink moms murder children
 The policy of the law does not impose the rule of strict liability to protect against harms incident to the plaintiff’s
extraordinary and unusual use of land (abnormally sensitive character of activity)
See Foster v Preston Mill Co [WA]
 29
 VIII. Products Liability
R3T.PL§1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products [294]
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.
R2T§402A
(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, 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.
Cmt. k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are
quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs.
An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious
and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the
marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they
involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it
unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason
cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many
new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there
can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the
marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the
qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it,
is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to
supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.
 Majority: apply cmt. k on a case by case basis
See Grunberg v Upjohn Co [UT]; plaintiff on drugs killed mother
 Minority, this case: apply to all FDA approved drugs
See Grunberg v Upjohn Co [UT]; plaintiff on drugs killed mother
See Brown v. Superior Court; plaintiffs sued drug companies for injuries from pregnant women exposure to a synthetic hormone
used during pregnancy. Court ruled that drug might be safer if companies had withheld it from the market until scientific skill and
knowledge advanced to the point where all side effects could be discovered. Court stressed three public policies mitigating against
imposing strict liability for prescription drugs: manufacturers might stop producing valuable drugs because of lost profits, consumers
have an interest in the prompt availability of drugs and this could cause delay, added expense of research might cause price to
increase.

A. Negligence Actions—Overcoming the Privity Barrier (between contractor and contractee)

No longer as much an issue because of strict product liability
 Acts of negligence imminently dangerous to the lives of others: the party guilty of the negligence is liable to the party
injured, whether there be a contract between them or not
See Thomas v Winchester [NY]; historical: plaintiff ingests belladonna marked as dandelion
 Where acts of negligence are not imminently dangerous: the negligent party is liable only to the party with whom he
contracted, and on the ground that negligence is a breach of the contract.
See Thomas v Winchester [NY]; historical: plaintiff ingests belladonna marked as dandelion
See Devlin v. Smith; defendants were contracted to paint court house and constructed a scaffold. The scaffold collapsed killing
plaintiff and court held that defendants were liable because they knew if the scaffold was constructed improperly it would be a
dangerous trap. He owed a duty to build it with care.
 If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is
then a thing of danger
See MacPherson v Buick Motor Co. [NY]; wheel collapses on plaintiff’s car
See Loop v Litchfield [827]; manufacturer made known that a circular saw was partially defective to the first owner. The first owner
sold the saw to another. The other was injured by the saw and sued the manufacturer. Manufacturer not liable, but the owner could
be.
See Statler v. Ray Mfg: defendant manufactured coffee urn for restaurant. It exploded and court held that manufacturer was liable
because the urn was of such a character inherently that when applied the purposes for which it was designed, it was liable to become
a source of great danger to many people if not carefully constructed.
 If there is a defect and you warn, there is an assumption of the risk
See Loop v Litchfield [827]

 30
B. Misrepresentation and Breach of Warranty
Defendant merchant liable for harm caused by a misrepresentation
 Warranties extend to foreseeable third parties
See Henningsen vs Bloomfield Motors Inc. [note case, 839]; Mr. buys car, Mrs. Crashes
See Escola v. Coca Cola; exploding Coke bottle and court stated that if public policy demands that a manufacturer be responsible
for their quality regardless of negligence there is no reason not to fix that responsibility openly- where it will effectively reduce
hazards to life and health inherent in defective products that reach the market.
R3T.PL§9 Liability of Commercial Product Seller or Distributor for Harm Caused by
Misrepresentation [313]
One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product,
makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to
liability for harm to persons or property caused by the misrepresentation
 Must notify seller within a reasonable amount of time of a breach of warranty, or the seller is not liable
See Greenman v Yuba Power Products Inc [CA]; Lathe product (Shopsmith) strikes plaintiff’s head, that is, forehead

C. Strict (Defect) Liability in Torts

Professional Manufacturer + Injury + Product essentially the same + Injury resulted from defect in foreseeable use
 A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without
inspection for defects, proves to have a defect that causes injury to a human being
See Greenman v Yuba Power Products Inc [CA]; Lathe product (Shopsmith) strikes plaintiff’s head, that is, forehead
 To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the
product in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not
aware that made the product unsafe for its intended use.
See Greenman v Yuba Power Products Inc [CA]; Lathe product (Shopsmith) strikes plaintiff’s head, that is, forehead
R3T 16: when injuries are indivisible the product seller is liable for all harm attributed to the defect and other causes
R3T.PL§2 Categories of Product Defect [296]
Three categories of product defect
a) manufacturing defect: product departs from intended design, though all possible care was exercised
b) defective in design: reasonable alternative and the omission of the alternative design renders the product not reasonably
safe
c) inadequate instructions or warnings: risk of danger could have been reduced or avoided by reasonable instructions or
warnings
Cmt. a: Manufacturer must be evaluated based on what was known or reasonably attainable at the time of manufacture
 In products liability action the plaintiff must establish three things:
o That he was injured by the product
o That the product, at the time of the accident, was in essentially the same condition as when it left the hands of the
defendant
o That the injury occurred because the product was in defective condition unreasonably dangerous to the user
See Branham v Ford Motor Co [SC]; Ford Bronco II flips
 Factors of Risk-Utility Test
o Usefulness and desirability of the product—its utility to the user and to the public as a whole
o The safety aspects of a product—the likelihood that it will cause injury, and the probable seriousness of the injury
o The availability of a substitute product which would meet the same need and not be as unsafe [must prove an
alternative design]
o 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
o The user’s ability to avoid danger by the exercise of care in the use of the product
o 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, or of the existence of suitable warnings or instructions
o The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying
liability insurance
See Riley v Becton Dickson Vascular Access, Inc [PA]; HIV IV goes wrong

a. Difference between 402A and R3T

 Expands liability to bystanders not just consumers
 Adds distributor to defendants
 Explicitly lists categories of defect

 31
 b. 4 Part Test for Plaintiff
 Defendant must be a merchant
 The product must be defective
 Plaintiff must prove that the product was not altered (presumed if carried in normal methods of distribution)
 Plaintiff must be using product in a foreseeable manner at the time of injury

c. Manufacturing Defects—Expert Testimony and Res Ipsa

See also Use of Circumstantial Evidence: Res Ipsa Loquitur, pg. 15
 Expert testimony is not necessary in a normal res ipsa case if it is obvious to judges and jurors that the accident is the
kind that rarely occurs without negligence on the part of the injurer.
See Smoot v Mazda Motors of America, Inc. [WI]; woman hits piece of asphalt pothole
R3T 3: Circumstantial evidence supporting inference of product defect
 Expert testimony in a res ipsa case is necessary if the inference of negligence from the accident itself was obvious only
to an expert.
See Smoot v Mazda Motors of America, Inc. [WI]; woman hits piece of asphalt pothole
 Expert testimony (Fed.R.Evid. 702) must be “based upon sufficient facts or data,” that it be “the product of reliable
principles and methods,” and that the expert has applied the principles and methods reliably to the facts of the case.”
See Smoot v Mazda Motors of America, Inc. [WI]; woman hits piece of asphalt pothole
 The plaintiff may present expert testimony to show that such an injury would not ordinarily occur in the absence of
negligence, despite what the defendant may have tried to show.
See Smoot v Mazda Motors of America, Inc. [WI]; woman hits piece of asphalt pothole
R3T 7: Liability of commercial seller or distributor for harm caused by defective food products

d. Design Defects
Uses the Risk Utility Test
R3T.PL§6c [TB905]
(c) A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm
posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable
health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical
device for any class of patients.
 Majority, Risk-Utility Test: Numerous factors must be considered [when determining whether a product is
unreasonably dangerous], including
the usefulness and desirability of the product
the cost involved for added safety
the likelihood and potential seriousness of injury, and
the obviousness of danger [used in this case]
See Branham v Ford Motor Co [SC]; Ford Bronco II flips
R3T 4: Plaintiff may be able to prove a product is defectively designed by showing that it failed to comply with government product
safety statutes or regulations
See O’Brien v. Muskin: plaintiff suffered injury when he dove into a pool and his hands hit the bottom and slid apart, allowing his
head to strike the bottom. Claimed pool was defectively designed because it was lined with vinyl which became slippery when wet.
Court ruled that evaluation of utility involves relative need for that product. Issue was whether design of pool was defective and trial
court should have allowed jury to consider whether the risks of injury outweighed the utility of the product as to constitute defect.
 Minority, Consumer expectations: whether the product is unreasonably dangerous to the consumer or user given the
conditions and circumstances that foreseeably attend use of the product [declining minority; SC statute called for this]
See Branham v Ford Motor Co [SC]; Ford Bronco II flips

e. Warning Defects
R3T.PL§10 Post-Sale Failure to Warn [313]
a) liable for post-sale failure to warn if a reasonable person would warn
b) a reasonable person would warn if:
1) product poses a substantial risk
2) consumers can be identified and be reasonably assumed to be unaware of the risk
3) warning can be effective communicated to and acted on by those to whom a warning might be provided, and
4) the risk of harm is sufficiently great to justify the burden of providing a warning.
 In the case of prescription drugs, the manufacturer’s obligation to warn extends only to doctors who prescribe the drug
See Johnson v American Cyanamid Co. [KS]; Dad gets polio
 In determining warning issues, the test is reasonableness
See Johnson v American Cyanamid Co. [KS]

 32
 An adequate warning in mass inoculation cases requires that vaccinees be directly informed in clear and simple terms
by the drug manufacturer of:
o The reasonably foreseeable risk inherent in the product;
o Reasonable available alternatives, and, perhaps in appropriate cases:
o The reasonably foreseeable results of remaining untreated
But Johnson v American Cyanamid Co. [KS]; Dad gets polio; this is the Dissent
 Rebuttable presumption that the consumer would have read a warning provided by the manufacturer and would have
acted so as to minimize risks

 33
 IX. Burden Shifting Events
 For plaintiff to recover, he must have shown ordinary care and defendant not; burden on plaintiff
See Brown v Kendall; Dogs with the stick and the missing eye
 Res ipsa relieves the plaintiff from the burden of producing direct evidence of negligence, but it does not relieve a
plaintiff from the burden of proof that the person charged with negligence was at fault. It requires evidence which
shows at least probability that a particular accident could not have occurred without legal wrong by the plaintiff
See George Foltis, Inc. v City of NY [NY]; water main bursts and damages plaintiff’s restraunt
R3T.PH§28 Burden of Proof [131]
a) plaintiff has burden to prove factual cause of harm
b) if plaintiff has shown someone in a group of defendants has caused his harm and cannot be any more specific, burden
shifts to the defendants for proving who dun it
 If two act independently and negligently, burden shifts to defendants to prove individual extent of culpability
See Summers v Tice [CA]; hunting party, 2 hit the third aiming at the bird

X. Medical Cases and Rules

N.B., this is simply an unaltered copy and paste from above.

 Consent is required for otherwise offensive contact, except in emergency

See Mulloy v Hop Sang [Canada]; surgeon cuts of hand
 Negligence must contribute to injury for there to be liability
See Brown v Shyne [NY]; pseudo-chiropractor
 Trained professional is held to the standard of a professional
See Brown v Shyne [NY]; pseudo-chiropractor
Malpractice:
 Physician/hospital is under a duty to use that degree of care and skill which is expected of a reasonably competent
(practioner in the same class to which he belongs)/hospital, acting in the same or similar circumstances
See Shilkret v Annapolis Emergency Hospital Association [MD]; brain damage in birthing
 Abandons strict locality rule in favor of national standard for both specialists and hospital
See Shilkret v Annapolis Emergency Hospital Association [MD]; brain damage in birthing
 Jury can find the current standard of medical care inadequate
See Helling v Carey [WA]; undiscovered glaucoma
 Duty of disclosure for medical professionals if
1) risk is material,
2) are feasible alternatives,
3) if patient can be advised without detriment to his wellbeing
See Miller v Kennedy [WA]; biopsy of the kidney, standard was violated
R3T.PH § 17 Res Ispsa Loquitur [99]:
The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of
accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant
member.
See Byrne v Boadle [UK]; barrel fell out of warehouse
 Res ipsa requires
1) accident must be of a kind which usually does not occur without negligence
2) caused by agency/instrumentality within the exclusive control of the defendant,
3) not due to any voluntary action by the plaintiff
See Ybarra v Spangard [CA]; operating room patient sues everybody for arm atrophy
 Where patient made unconsciousness, all who have control over his/her body can be called on to disprove own
negligence
See Ybarra v Spangard [CA]; operating room patient sues everybody for arm atrophy
R3T.PH§26 Factual Cause [116]
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the
harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.
 “After this therefore because of this” is a fallacy—possibilities will not sustain a verdict
See Kramer Service v Wilkins [MS]; falling transom = skin cancer
 If unknown to doctor, out of range of experience to judge/juror
See Kramer Service v Wilkins [MS]
 When difference of opinion among reputable doctors, jury may decide
See Daly v Bergstedt [MN]; slip and fall = breast cancer
 Where doctor negligently reduced chance of recovery, lost chance (even if less than 50% originally) is compensable
 34
 See Matsuyama v Birnbaum [MA]; loss of chance of survival fighting gastric cancer
 One can bring an NIED claim where one is a direct victim (foreseeability) and the ED is either medically significant in
nature or there is some guarantee of genuineness in circumstances of case
See Molien v Kaiser [CA]; syphilis?
R3Agency§2.03 Apparent Authority
Apparent authority is the
power held by an agent or other actor
to affect a principal's legal relations with third parties
when a third party reasonably believes the actor has authority to act on behalf of the principal and
that belief is traceable to the principal's manifestations.
 Two elements standard of apparent authority within torts:
o Conduct by the principal that would lead a person to reasonably believe that another person acts on principal’s behalf
o Acceptance of the agent’s service by one who reasonably believes it is rendered on behalf of the principal
See Jones v HealthSouth Treasure Valley Hosp. [ID]; pressure cuff on bag at hospital
R3T.PH§55 Direct Liability in Negligence of Those Who Hire Independent Contractors [261]
An actor
1) who hires a contractor to perform an activity that creates a risk of physical harm, or
2) who hires a contractor to complete an affirmative duty per §§38-44
is subject to liability for physical harm when the actor’s negligence is a factual cause
See Jones v HealthSouth Treasure Valley Hosp. [ID]; pressure cuff on bag at hospital
R3T.PH§56 Duty Limitations as to Work Entrusted to an Independent Contractor [262]
a) An actor who entrusts work to an independent contractor owes no duty as to the manner in which the work is performed
unless
b) the actor retains control over any part of the work
 Factors of Risk-Utility Test
o Usefulness and desirability of the product—its utility to the user and to the public as a whole
o The safety aspects of a product—the likelihood that it will cause injury, and the probable seriousness of the injury
o The availability of a substitute product which would meet the same need and not be as unsafe
o 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
o The user’s ability to avoid danger by the exercise of care in the use of the product
o 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, or of the existence of suitable warnings or instructions
o The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying
liability insurance
See Riley v Becton Dickson Vascular Access, Inc [PA]; HIV IV goes wrong
R3T.PL§6c [TB905]
(c) A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm
posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable
health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical
device for any class of patients.
 In the case of prescription drugs, the manufacturer’s obligation to warn extends only to doctors who prescribe the drug
See Johnson v American Cyanamid Co. [KS]; Dad gets polio
 In determining warning issues, the test is reasonableness
See Johnson v American Cyanamid Co. [KS]
 An adequate warning in mass inoculation cases requires that vaccinees be directly informed in clear and simple terms
by the drug manufacturer of:
o The reasonably foreseeable risk inherent in the product;
o Reasonable available alternatives, and, perhaps in appropriate cases:
o The reasonably foreseeable results of remaining untreated
But Johnson v American Cyanamid Co. [KS]; Dad gets polio; this is the Dissent
XI. Last Clear Chance
See Reduction of Responsibility: Others’ Conduct as a Contributing Cause, pg. 22
 Historical: if a party did not use common and ordinary caution and is harmed by another party’s at fault obstruction, he
does not have a cause of action
See Butterfield v Forrester [UK]; man thrown from horse hitting negligently set up pole as fast as he could
 Historical Contributory negligence must be a negligent act which is a proximate cause and not merely a condition
See Smithwick v Hall & Upson Co. [CT]; plaintiff went to forbidden part of platform, hit by wall unrelatedly

 35
  An act or omission that merely increases or adds to the extent of the loss or injury will not defeat the action, though, of
course it may affect the amount of damages recovered in a given a case.
See Smithwick v Hall & Upson Co. [CT]
R2T§479 Last Clear Chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may
recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to
avoid the harm, when he
(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is
then his duty to the plaintiff to exercise.
R2T§480 Last Clear Chance: Inattentive Plaintiff
A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence
in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff's situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to
avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid
the harm.

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 XII. Liability Supplement
A. R2T § 435A Intended Consequences
A person who commits a tort against another for the purpose of causing a particular harm to the other is liable for such
harm if it results, whether or not it is expectable, except where the harm results from an outside force the risk of which
is not increased by the defendant's act.
Comment:
a. The rule stated in this Section has its application in the field of damages to those cases where the defendant commits a tort against a person
such as an assault, battery, trespass, or defamatory statement, acting for the purpose of causing a particular harm, and where such harm
results. The principle is the same as that which leads to the creation of a cause of action in favor of a person where the defendant acted for
the purpose of harming him, in cases where, without such purpose, there would have been no liability, as where a person defrauds another
for the purpose of causing pecuniary harm to a third person. (See § 870.)
The rule stated in this Section determines only the amount of damages to be recovered for a tort. Its effect is to impose liability for a particular
consequence even though had the defendant been merely negligent in the commission of the tort or liable for other reasons, he would not
have been responsible for the particular result. In such a case, the tortfeasor is liable for the consequence although it was unexpectable and
although he did not believe that it was at all likely that such a result would happen. Thus where a person defames another, actuated by the
hope that such other will become insane because of the public disgrace, the defamer is liable for the insanity which results. A similar result
follows where a person who acts for the purpose of harming another adverts to a large number of different harmful consequences and is
indifferent as to which consequence ensues. Thus where a person intentionally knocks another down and leaves the other in the road, desiring
that the other shall suffer serious harm but completely indifferent as to how it shall occur, he is responsible for the further wounding of his
victim whether it occurs from the negligent driving of an automobilist or the stroke of a robber, since the risk of harm from a criminal attack,
though slight, was increased by the helplessness of the injured person.
Even where the result does not occur in the way or in one of the ways to which the defendant adverts, if his tortious conduct increases the
risk of harm by other means, and the desired result follows, there is liability for the harm although the particular risk was insubstantial. Thus
in the illustration just used, the fact that the tortfeasor did not advert to the risk of robbery would not prevent his liability for the harm caused
by the robber.
On the other hand, even where the tortfeasor intends a specific result which follows, there must be a causal connection between his act and
the result. Thus a person who, with murderous design, substitutes poison for the drinking water of a traveler, is not responsible for the death
of the traveler in a train wreck before he has had a chance to taste the potion. Likewise, even where the harm would not have occurred but
for the tortious act, there is no liability if, although the resulting harm was of the same general nature as that intended, the defendant's act did
not increase the risk of harm through the means by which it occurred. Thus where a person pursues another, threatening and attempting to
kill him, and the other is struck by lightning during the pursuit, the first is not responsible for the harm thus caused unless the risk of being
struck by lightning was increased by the pursuit.

B. R2T § 435B Unintended Consequences of Intentional Invasions

Where a person has intentionally invaded the legally protected interests of another, his intention to commit an invasion,
the degree of his moral wrong in acting, and the seriousness of the harm which he intended are important factors in
determining whether he is liable for resulting unintended harm.
Comment:
a. The rule stated in this Section is analogous to that stated in § 501 (2), with reference to the creation of liability, which states that where
one acts “in reckless disregard of another's safety,” this “is a matter to be taken into account to determine whether a jury may reasonably find
that the actor's conduct bears a sufficient causal relation to another's harm to make the actor liable therefor.” The rule stated in this Section
affects only the measure of damages for a tort, but is based upon the principle which underlies both rules, namely, that responsibility for
harmful consequences should be carried further in the case of one who does an intentionally wrongful act than in the case of one who is
merely negligent or is not at fault. The rule applies not merely to physical harm to the person but also to harm to the feelings, to reputation,
and to business. Its principle applies not only to permit a jury to award punitive damages, but also to cause an intentionally wrongful tortfeasor
to respond for compensatory damages in cases where, were he merely negligent, he would not be required to pay damages. As to the extent
of liability for unexpected pecuniary loss resulting from deceit, see § 549.
Illustrations:
1. A intentionally hits B on the head. B is taken to the hospital where, by a gross and not expectable error, a nurse gives him a poison instead
of a medicine, as a result of which he is seriously harmed. It may be found that A is liable for the harm caused by the poison.
2. A publishes a defamatory statement known by him to be untrue and intended to ruin the reputation of B. Irrespective of A's liability had
he innocently made an erroneous statement, it may be found that he is liable for an illness of B caused by worry over the publication.

C. R2T § 501 Liability for Conduct in Reckless Disregard of Another's Safety

(1) Except as stated in Subsection (2) and in § 503, the rules which determine the actor's liability to another for reckless
disregard of the other's safety are the same as those which determine his liability for negligent misconduct.
(2) The fact that the actor's misconduct is in reckless disregard of another's safety rather than merely negligent is a
matter to be taken into account in determining whether a jury may reasonably find that the actor's conduct bears a
sufficient causal relation to another's harm to make the actor liable therefor.
Comment:
a. Once the actor's conduct is determined to be of the character described in § 500, his liability for harm resulting from such tortious conduct
is determined, with two exceptions, by the same rules which determine the liability of a negligent actor. First, under the statement in
Subsection (2), the fact that the actor's conduct is in reckless disregard of another's safety is a factor of importance for the court to consider
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 in determining whether the jury shall be permitted to find that the actor's conduct bears a sufficient causal relation to the other's harm as to
make him liable therefor. Thus a jury may be permitted to find that a defendant's reckless misconduct bears a sufficient causal relation to a
plaintiff's harm to make him liable, although were the defendant's conduct merely negligent, no such finding would be permissible. Second,
under the rule stated in § 503, a defendant whose conduct is in reckless disregard of another's safety may not relieve himself from liability
by showing that the plaintiff's negligence, as distinguished from reckless disregard of his own safety, was a contributing cause of his harm.
b. As affecting measure of damages. The extent of liability, as well as its existence, may be affected by the fact that the actor's conduct is
reckless rather than negligent. Thus, the jury may be permitted to impose punitive damages upon a reckless defendant, although only
compensatory damages would be permissible if the defendant had been merely negligent. As to this, see § 908.
c. The recklessness, as distinguished from the negligence, of the actor's misconduct may also be of importance in determining his liability
under a statute which imposes liability only where the actor's conduct is reckless. Inasmuch as the conduct which is defined as in reckless
disregard of safety in § 500 is often described as “wanton or wilful” misconduct, the definition of such conduct in that Section may be of
importance in determining the actor's liability under a statute which imposes liability upon those whose conduct is “wanton or wilful.”

D. R2T § 162 Extent of Trespasser's Liability for Harm

A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the
trespass, or to the land or to his things, or to members of his household or to their things, caused by any act done,
activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject
him to liability were he not a trespasser.
Caveat:
The Institute expresses no opinion as to whether a trespasser on land is subject to liability as stated in this Section to the possessor's servants
who, though not members of the possessor's household, are resident on the premises.
Comment:
a. The phrase “a person who is in possession of land” is defined in § 157.
b. The words “members of the possessor's household” include all persons living for more than a merely temporary period in the residence of
the possessor either as members of his family, as guests or as domestic servants.
c. Effect of a disseisin. If the actor tortiously enters land in the possession of another and at that time disseises the other, although the actor's
entry is a trespass, his conduct in remaining on the land after such disseisin is not a trespass, since by such disseisin the actor has dispossessed
the other, and a continuing trespass can exist, under the rule stated in this Section, only where the actor remains on land which is at that time
in the possession of another. So too, if one tortiously remains on land in the possession of another and thereafter disseises him, the actor is a
continuing trespasser up to the time of the disseisin but not thereafter. What acts and circumstances constitute disseisin and adverse possession
respectively are not within the scope of the Restatement of this Subject.
Illustration:
1. A, without a privilege to do so, enters on land in the possession of B and forcibly removes B from the land and himself takes possession
of it. While A's unprivileged entry is a trespass, his continuance in possession after the removal of B is not a trespass.
d. Effect of a transfer of the land. If the conduct of the actor is a continuing trespass, any person in possession of the land at any time during
its continuance may maintain an action for trespass. Thus, if the possession of land upon which the actor has tortiously erected a structure is
transferred while the structure remains there, the person in possession of the land at the time of such entry has a cause of action in trespass
for the entry as well as for the continuance of the trespass until the time when such person transferred his possession, and the transferee of
the possession has a cause of action for the actor's wrongful continuance of his trespass after the possession of the land was acquired by such
transferee.
e. Effect of a permanent change in the condition of the land. A continuing trespass must be distinguished from a trespass which permanently
changes the physical condition of the land. Thus, if one, without a privilege to do so, enters land of which another is in possession and
destroys or removes a structure standing upon the land, or digs a well or makes some other excavation, or removes earth or some other
substance from the land, the fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a
continuing trespass. Since his conduct has once for all produced a permanent injury to the land, the possessor's right is to full redress in a
single action for the trespass, and a subsequent transferee of the land, as such, acquires no cause of action for the alteration of the condition
of the land.
f. Peculiar position of trespasser. This Section states the peculiar liability to which a trespasser is subject for bodily harm caused to the
possessor of land or the members of his family by the conduct of a trespasser while upon the land, irrespective of whether his conduct if it
occurred elsewhere would subject him to liability to them. It is not, therefore, necessary to the liability of the trespasser that his conduct
should be intentionally wrongful, or recklessly or negligently disregardful of the interests of the possessor or a member of his household, or
an activity which, like blasting, is so abnormally hazardous that it must be carried on at the risk of answering for harm however caused by it.
Thus, one who trespasses upon the land of another incurs the risk of becoming liable for any bodily harm which is cause to the possessor of
the land or to members of his household by any conduct of the trespasser during the continuance of his trespass, no matter how otherwise
innocent such conduct may be.
g. It is enough to make the rule stated in this Section applicable that the actor is a trespasser by being upon another's land without a privilege
to be there created either by the consent of the possessor, by the past consent of the possessor or his predecessor, or by some rule of law
which permits him to enter for a particular purpose, or by a local or general custom which entitles him to assume that the possessor will
consent to his entry. It is immaterial whether the actor knows that he is intruding upon the land of another or is without negligence ignorant
that he is so doing.
Illustration:
2. A is driving his car along the highway in a neighborhood with which he is unfamiliar. He asks B to direct him to a certain town. B tells
him that he can take a short cut through a private road over which the public is not accustomed to travel, which B asserts to be upon his own
land but which, in fact, is on the land of C. While driving carefully along the road, A runs over D, C's three-year-old child, who suddenly
dashes out from the bushes which border the road. A is subject to liability to D and to C.

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