Torts Exam Outline

Tort: a civil wrong that causes a claimant to suffer a loss or harm.

INTRODUCTION
A. Introduction to Tort Law
 Tort law: collection of principles describing the legal system’s civil response when a
person inflicts injuries upon another
 Types of Torts
 Intentional tort: plaintiff must prove that the defendant intended to affect the
plaintiff in some way that the law forbids
 Unintentional tort: a plaintiff may recover without proof that the defendant meant to
cause a prohibited effect if the plaintiff proves that the defendant’s conduct was less
than careful than the law
 Negligence
 Recklessness
 Strict liability: plaintiff may sometimes recover for an injury without proving either
that the defendant meant to cause harm or that the defendant’s conduct lacked some
degree of carefulness
 Burden of proof in tort cases  by the preponderance of evidence
 More likely than not, the defendant was liable
 How litigation works: plaintiff files a complaint in trial court  defendant can ask judge
to dismiss the claim or file an answer  plaintiff or defendant can move towards a
summary judgement, which is designed to resolve the lawsuit before it begins 
discovery, trial, etc.
 Tort law serves society for compensation for victims who need it and deterrence of
individuals from doing harmful acts
INTENTIONAL TORTS
INTRODUCTION
A. Introduction
 Types of intentional torts
 Battery
 Assault
 False imprisonment
 Intentional infliction of emotional distress
BATTERY
A. Intent to Contact
 Battery – An actor is subject to liability to another for battery if…
 (a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of that contact, and
 (b) a harmful or offensive contact with the person of the other directly or
indirectly results, and
 (c) the action is unconsented and unprivileged.

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  An act that is not done with the intention stated in the law does not make an actor liable
for battery
 Could be negligence or reckless, though
 Battery extends to anything that a person is touching too
 “Intent” is when a person acts with the purpose of producing a consequence or
knowing the consequence is substantially certain to result
 Based on the subjective mind of a defendant – look at direct and circumstantial
evidence
 Purpose intent: actor desires to bring about a legally forbidden consequence
 Knowledge intent: the actor knows that a legally forbidden consequence is virtually
certain to result
 Contact doesn’t need to be body-to-body
 If I touch you with a 10-foot pole, that can satisfy the contact element
 Two types of jurisdictions that govern battery differently:
 Single-intent jurisdictions: all that is required to make an actor liable for battery is
the intent to contact
 Dual-intent jurisdictions: intent to contact and intent to harm are both required to
make an actor liable for battery
 But the harm that you intend does not have to be the actual specific harm
 Connection with the plaintiff’s body needs to have some connection where the harm
results
B. Intending Contact That is Harmful
 Injury: invasion of any legally protected interest of another
 Harm: the existence of loss or detriment in fact of any kind to a person
 An injury causes harm if the injury has a detrimental effect on the plaintiff
 The intent requirement to commit battery is not specific intent. General intent to
invade another’s physical well-being is all that is required (Nelson).
C. Intending Contact That is Offensive
 Vicarious liability: an employee, if he commits a tort, can be sued, and their business can
be sued too
 Offensive contact  offends a reasonable sense of personal dignity (objective)
 Dignitary harm based on an objective test, routine aspects of life aren’t offensive
even if a particular plaintiff gets offended by it
 Examples – blowing smoke in someone’s face, buckling somebody’s knee with
another’s knee
D. Damages for Intentional Torts
 Nominal damages: awarded instead of compensatory damages when there is no evidence
of actual injury
 De minimus non curat lex: the law does not care about trifles
ASSAULT
A. Intending Apprehension of Imminent Contact
 Assault – An actor is subject to liability to another for assault if…
 (a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact, and
 (b) the other is thereby put in such imminent apprehension.

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  The intentional tort of assault protects one’s interest in being free from apprehension of
imminent, harmful, or offensive contact. It is a way of recovery from when there is
speech with a cause of action.
 Assault does not require a physical injury to it. Emotional/psychological injuries are
enough.
 However, assault is typically combined with some physical action
 An individual is not liable for assault if his threat is not imminent to the victim. Mere
words are not enough if there is no imminent harm accompanied by them.
 A conditional threat, one that threatens harm unless the plaintiff behaves in a certain
way in the future, is not assault
 An individual’s view of an imminent apprehension is based on an objective standard
B. Transfer of Intent Among People and Torts
 Transfer of intent between torts: allows the plaintiff to recover from battery/assault
even if the defendant intended the other.
 I intend to assault someone. I hit them in the head. Even though I didn’t intend to
commit battery, I still can be charged with battery
 Transfer of intent among people: intendeds with one person, but happens to another,
defendant will be liable for the second person as if they were the intended target.
DEFENSES TO ASSAULT AND BATTERY
A. Consent
 Consent: when a person voluntarily relinquishes the right to be free from harmful or
offensive contact or imminent apprehension thereof.
 Consent can be express or implied as determined by reasonable
appearances/customs of the community are taken into consideration
 Withdrawal of consent should can be inferred “objectively,” the actor doesn’t need to
say “I stop”
 If an actor consents to suffer an injury, once he consents, the actor cannot recover for any
harms even if they are unforeseeable.
 Mistaken consent or fraud consent are entirely invalid. E.g., giving someone an STD,
by withholding that information from them while intimate, constitutes battery.
 Showing up to a fight demonstrates consent to participate in that fight.
 However, excessive force that is a contact that is not consistent with the understood
rules, cannot be privileged by consent.
 Apparent consent is nullified as a defense where contact exceeds free will
 Duress
 Fraud
 The burden of proof of consent is on the defendant to show
B. Defense of Self and Others – The Proportionality Principle
 Common privileges for assault and battery: use of force for self-defense, defense of
property, merchant’s privilege, conduct of police officer
 In defense of oneself, of another person, or of one’s land or property, an actor may use
force proportionate to:
 (1) the interest the actor is protecting
 (2) the injury or harm threatened by the other
 Be imminent

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  A person is justified in using dangerous weapons as self-defense even if the attacking
party is not armed if there is a reasonable danger to a reasonable person. (Slayton)
 Character of the attacker
 Reputation of the attacker
 Belligerence of the attacker
 Difference of size and strength of the attacker
 Attacker’s overt act
 Threat of severe harm
 Possibility of retreat
 An individual can protect his family from an attacker; however, this privilege protects the
defendant from liability only to the extent that he does not use more force than
necessary.
 There needs to be a well-grounded belief that a battery is going to be committed
immediately to one’s family member
 Even if one can avoid injury by fleeing the scene, there is a right to “stand one’s ground”
and resort to self-defense without fear of tort liability.
C. Defense of Land and Personal Property
 The right to defend property is allowable only with enough force to do it, no more.
 Just needs to be reasonably necessary
 In cases involving threats to property, one must first request the other “to desist” or
reasonably believe that such a request would be useless.
NEGLIGENCE
INTRODUCTION
A. Introduction
 Negligent conduct falls below the standard of what is reasonable under the circumstances
 The elements of negligence:
 (1) defendant owed a duty to the plaintiff to act a certain way, the defendant
 (2) breached the duty by failing to act or acting a certain way,
 (3) caused some
 Factual and proximate cause
 (4) harm to the plaintiff.
 Harm needs to be legally compensable such that there is an injury
 Looks at using reasonable care
 The rules of negligence tort tell us when the victim of an accident is entitled to
compensation; when, in other words, the cost of the accident will be shifted from the
victim to the person who caused the injury.
DUTY: THE “REASONABLE PERSON” STANDARD
A. Defining and Justifying the “Reasonable Person” Standard
 “Reasonable Person” Standard: what would a reasonable person do to minimize the
risks of others under the circumstances
 Involves: normal intelligence, normal perception, memory, assessment; includes
consideration of particular intelligence; physical attributes.
 A reasonable person considers the foreseeable risks of injury that the conduct will
impose on the community, the extent of the risks posed by her conduct, and the
likelihood of a risk actually causing harm. He considers the costs of various courses
of action in determining what is reasonable.

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  Two components of the reasonable person standard:
 General: what would the average person do to minimize risks
 Looks at the average person
 Specific: what would a reasonable person with specific knowledge do to minimize
risks
 A “bona fide, to the best of his own judgement” standard is too variable for use
 This is a duty-rule, also referred to as “standard of care” and applies automatically and in
every case, unless it is displaced by some alternative standard, which can be more or less
demanding, or unless the case is one where there is no duty at all.
B. Reasonable Conduct as Balancing Costs and Benefits (BREACH)
 Hand Formula: B < PL
 Failure to adopt a precaution is negligent if the cost of the burden is less than the
probability that the injury will occur times the magnitude of the loss
 Severity of the potential harm
THE RANGE OF APPLICATION OF THE REASONABLE PERSON
STANDARD
A. Especially Dangerous Situations
 There is no “high degree of care” standard; the “reasonable person” care standard is the
only standard of care.
 Duty of care is proportionate to the situation
B. Emergencies
 Emergencies are sudden, not routine, comes from scenarios that an individual could not
predict
 The “sudden emergency” doctrine can be applied to cases to determine if an actor was
negligent, and it proves that an actor is not negligent when he was faced with a sudden
and unexpected danger, and accidentally harms others.
 Test to determine if someone was liable
 (1) Did the person act like a reasonably prudent person act in that emergency
 (2) The emergency can’t be created by the defendant
 (3) The emergency has to be unforeseeable
C. An Actor’s Knowledge and Skill
 Knowledge and skill should be considered as part of the totality of circumstances
 We look at reasonableness under the circumstances
 Double standard of care – general and specific
 It’s about under the circumstances. Event though the actor’s actual skills can be properly
considered, these skills do not establish for the actor a standard of care that is higher than
reasonable care; rather, they provide a mere circumstance for the jury to consider if the
actor complied with the general standard of reasonable care.
D. Youth: Special Treatment for Minors
 A child will be held to a standard of conduct that is of a reasonable person of like age,
intelligence, and experience under the circumstances
 For children under the age of 18, the general rule is that you use a child standard of care
unless the child is doing an adult activity.
 Operating mechanized vehicles
 Anything that has a license to it
E. Physical and Mental Disabilities

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  Disability is matter-of-fact, for juries to decide.
 For individuals with physical disabilities: the standard of care views how a reasonable
person with that physical disability would act to minimize risks
 For individuals with mental disabilities: the standard of care views how a reasonable
person without that mental disability would act to minimize risks
 Exception: if a person or guardian puts the mentally disabled person into care home
to prevent something from happening, the mentally disabled person should not have
to pay under those circumstances because he is taking reasonable precautions
 Policy – why tort law holds mentally disabled individuals to a reasonable person
standard
 (1) Tort law compensates innocent
 (2) Incentivizes responsibility
 (3) Prevents fraudulent claims
 (4) Prevents the courts from adjudicating degree of culpability
 (5) Allows life in the regular world
 Intoxication:
 There is no intoxicated person standard, the very fact of intoxication shows
negligence.
 For involuntary intoxication, courts treat the individual with the physical disability
standard. Therefore, it would be “how a reasonable person that is intoxicated
would act.”
RECKLESSNESS
A. Recklessness
 Recklessness (Restatement’s definition):
 (1) person knows of the risk of harm created by the conduct or knows the facts
that would make the risk obvious
 Needs to know or have reason to know
 Subjective standard
 Different than negligence where actor “should have known”
 (2) precaution would be so slight relative to the magnitude of the risk, and person
fails to adopt some precaution
 Reckless standard: wanton conduct or gross negligence; conscious disregard of risk
 High probability of substantial harm to another
 The judge identifies and defines the term, jury decides if the defendant was reckless
 Falls between intentional tort and negligence
 Punitive damages can be awarded with recklessness
PROVING BREACH – INTRODUCTION
A. Introduction to proving breach – looks at duty and breach of duty
 The evaluation aspect of the breach element involves a comparison between the alleged
fault conduct of the defendant and the relevant legal standard of care.
 On exam “Defendant failed to meet the standard of care.”
 Breach analyzes whether the defendant conformed to the standard that is set out from
his duty
 Breach is decided after the relevant standard of care is determined
 Jury assesses if the defendant breached the duty that the judge defined
 Proof of breach can include

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  (1) How a statute applies to factual circumstances
 (2) Party may rely on custom to show reasonableness
 (3) Circumstantial evidence
 These types of proof may
 (a) require a finding that the defendant was negligent regardless of customary
evidence
 (b) require a finding that the defendant was negligent unless the defendant offers
contradictory evidence
 (c) have no mandatory effect on the outcome of the case
VIOLATION OF A STATUTE
A. Violation of a Statute
 Statutes are intended to promote safety by establishing standards of conduct for particular
situations
 A statute could help a party show that there was a breach of standard of care by breaching
that statute, and therefore, the defendant was negligent
 Breach of statute is negligence per se/prima facie negligence.
 Prima facie: plaintiff just has the burden to prove that the defendant breached the
statute and therefore is negligent
 An emergency can excuse a person for breaching a statute
 There needs to be a causal connection between the breach of the statute and the harm.
Plaintiff needs to show that the statute protects the type of risk that the defendant
created and that the plaintiff is a member of a protected class to prove negligence
per se.
 Ask: Is this statute enacted to prevent _______?
INDUSTRY CUSTOM
A. Industry Custom
 It is relevant that the defendant acted as others customarily do in like situations
 Violation of industry custom is treated as relevant but not conclusive for negligence
 It isn’t always the standard for breach
 Sometimes, a judge has to make a decision about what industry standard is if there is
not industry standard presented
 In trial, it can be brought up by either the plaintiff or defendant
 Motion of limine: a motion made at the start of trial requesting that the judge rule that
certain evidence may not be introduced at trial
 A motion of limine is allowed if…
 (1) custom is not indicative of conduct being litigated
 (2) custom is “clearly careless or dangerous”
 A breach of duty for ordinary care is based on an ordinary, objective standard rather than
the subject standard the defendant has for itself. Violating extra precautions does not
violate ordinary care.
RES IPSA LOQUITUR
A. Res Ipsa Loquitur
 Circumstantial evidence: information a factfinder may use to make inferences of past
events
 Tort law recognizes some uses of circumstantial evidence as proof of breach with res
ipsa loquitur

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  Res ipsa loquitur: the thing speaks for itself
 Courts typically use its four elements:
 (1) type of injury was usually associated with negligence
 (2) defendant has exclusive control of injury
 Control is based on the critical point the moment that the negligent act
happens
 (3) plaintiff made no causal contribution to the harm
 (4) defendant’s access to information about the event was superior to plaintiff’s
 Based on defendant’s knowledge from the production of documents, etc.
 Allows the jury to find for the plaintiff without the plaintiff proving any specific
negligent act.
 Makes an inference of negligence that most of us would make from common
experience.
 Does not establish the negligence of any particular person
 This theory is one to pursue when it is absolutely essential. Direct evidence of
negligence, or giving more than circumstantial evidence of the facts of the case, can
preclude plaintiff from using it in court.
LEGAL CAUSES: CAUSES-IN-FACT
INTRODUCTION AND BASIC CAUSE-IN-FACT: THE BUT-FOR TEST
A. Introduction
 Cause-in-fact: to win damages, a plaintiff must show that there was a causal connection
between the defendant’s conduct and the plaintiff’s claim
 Requires proof as a matter of history and physical fact that the defendant’s conduct is
what led to the accident
B. Basic Cause-In-Fact: The But-For
 The big cause-in-fact question is whether the plaintiff would have been free from
harm “but for” (in the absence of) the defendant’s negligence
 The defendant’s negligence was necessary or essential to the tortious act
 Proof of causation is a preponderance of evidence standard. Defendant’s negligent act
“more likely than not” caused plaintiff’s harm.
 “Even if” rebuttal argument: even if I had been reasonably prudent, you still would have
suffered your injuries
ALTERNATIVES TO THE BUT-FOR TEST
A. Reasons for Alternatives
 Sometimes it’s hard to prove but-for cause, so courts may relieve the plaintiff of the
obligation
B. Multiple Sufficient Causes
 Prevents each of the two tortfeasors from escaping liability and blaming each other.
 Where two defendants’ respective breaches both would have been sufficient to cause
plaintiff’s harm by themselves, both breaches are factual causes even if they do not
satisfy the but-for test
 If the plaintiff can prove that the defendant is one of multiple sufficient causes to the
plaintiff’s harm, the defendant is liable for all damages
 Even if the origin of the other cause is unknown
 In some jurisdictions, doesn’t apply if defendant’s tortious act combines with a
natural act.

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  If there was a superseding cause, then the cause we look at is not a sufficient cause. The
cause is then absolved.
 Sufficient causes need not occur simultaneously
C. Concert of Action
 Concert of Action is a theory that sometimes permits a plaintiff who is injured by
defendant’s tortious conduct to impose liability on somebody else in addition to the
defendant
 This is when the additional defendant’s harm might not satisfy the but-for test, but
this theory still makes them liable
 Relaxes plaintiff’s burden
 Different forms of concerted action (Rest. of Torts):
 (1) Does a tortious act in concert with the other or pursuant to a common plan
with him, or
 (2) Knows that the other’s conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other on how to conduct himself or
 Factors that can be relevant to whether the defendant substantially assisted in a
wrongful act include:
 (1) the nature of the wrongful act
 (2) the kind and amount of the assistance
 (3) the relation of the defendant and the actor
 (4) the presence or absence of the defendant at the occurrence of the wrongful
act
 (5) the defendant’s state of mind
 (3) Gives substantial assistance to the other in accomplishing a tortious result and
his own conduct, separately considered, constitutes a breach of duty to the third
person.
D. Alternative Liability
 Unascertainable cause: when multiple defendants breach, but only one commits the
harm and cannot tell which one
 Circumstance where two parties acted negligently but only one commits act
 Plaintiff, at no fault of his own, is unable to determine who is responsible for his
own injury, and thus able to sue either one for the full amount.
 The burden is on each defendant to show that he did not cause the harm. If they
cannot make that showing, both will be held liable.
LIMITS ON LIABILITY: DUTY AND PROXIMATE CAUSE
INTRODUCTION
A. Introduction
 Tort law divides defendant’s conduct in two categories:
 (1) Harms defendant should be required to pay
 (2) Harms whose costs to victims should bear themselves
 A lack of duty owed by defendant to plaintiff should resolve a negligence case
 Even if a person was negligent and was cause-in-fact of plaintiff’s injury, an actor
will not be liable unless he had a duty that made it reasonably foreseeable that such
conduct would harm somebody in plaintiff’s position. (Cardozo in Palsgraf)
 A lack of proximate cause from defendant’s action to plaintiff’s injury would also
resolve a negligence case

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DUTY
A. Duty
 Three types of duties:
 Reasonably foreseeable duties (what Palsgraf is based on)
 Foreseeability of the risk of harm is the foundational element in the determination
whether a duty exists
 A court determines a duty by foreseeability by
 (1) balancing social interests
 (2) looking at the severity of the risk
 (3) looking at the burden of the defendant
 (4) looking at the likelihood of the occurrence
 (5) looking at the relationship of the parties
 (6) looking at the inability of the victim to protect himself
 Special relationship duties
 A defendant has a duty to warn plaintiff if there is a special relationship between
the two
 Different types of special relationships (from Restatement §40)
 Inviter-invitee
 Carrier-passenger
 Innkeeper-guest
 Employer-employee
 Landlord-tenant
 School-teacher
 Factors that show special relationship duties: foreseeability of harm, victim’s
inability, plaintiff bestowed some economic benefit to the defendant
 Duties that use multiple legal facts
 How does a judge determine what a duty is? A judge identifies duty from community
mores. Based on law and statutes tied to social policy.
 Foreseeability of duty is a general, objective standard
 Serving alcohol at parties: In Texas, a drinker, not a host, should be the primary person
responsible for his own behavior and best able to avoid the foreseeable risks of that
behavior.
PROXIMATE CAUSE
A. Introduction
 Two types of causality: cause-in-fact and proximate cause
 An action can have factual causation without having proximate causation
 Proximate cause: reflects the idea that the defendant’s conduct and the plaintiff’s harm
must have a connection that is reasonably close to justifying imposing liability on the
defendant
 Methodologies for proximate cause:
 Directness test
 Substantial factor test
 Foreseeability test
 Risk standard (From the Restatement 3d of Torts): was the injury in the scope of the
actor’s negligence?
B. Directness

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 Directness test: if there are no intervening forces between the defendant’s act and the
plaintiff’s harm
 For the directness test, foreseeability of the harm is immaterial. All that is required is
traceability of the plaintiff’s harm to the defendant’s negligence
C. Substantial Factor
 Substantial factor test: treats a defendant’s conduct as proximate cause to the plaintiff’s
harm if the conduct is important enough compared to other conduct
 Elements of the test:
 (1) compares importance of the defendant’s conduct to injury to other relevant
factors
 (2) defendant’s action was substantial, i.e., proximate cause of the harm
 Actions that are too factually and chronologically removed from the harm cannot satisfy
the substantial factor test; however, lapse of time is not in itself sufficient to absolve
liability from an action being a substantial factor
D. Foreseeability
 Foreseeability test: treats cause-in-fact as proximate cause if the type of accident was
reasonably foreseeable
 Elements
 (1) the conduct is cause-in-fact the accident
 (2) the general type of accident was a reasonably foreseeable consequence of the
conduct
 You need a “foreseeable who” who suffers a “foreseeable what” in order to recover
damages and in order for proximate cause to be fulfilled
 The exact sequence of events leading up to an accident need not be foreseeable
 If a particular injury is more serious than might have been anticipated, the defendant is
still liable for the injury sustained
 Eggshell plaintiff rule: a defendant must take a plaintiff as he finds him. The damages
he must pay the victim are not reduced merely because of the plaintiff’s condition before
the accident.
 Requires the defendant to be liable for what he can’t foresee
 Shabby millionaire rule: plaintiff’s injuries are particularly high because of the affluence
of the person injured
E. The Restatement (Third) Approach to Duty and Proximate Cause – not the dominant law
 Elements of negligence under the 3d Restatement:
 (1) Duty owed to exercise reasonable care
 This is assumed because everyone has a general duty to the world.
 General duty not presumed for certain entire classes of cases determined by
social policy
 (2) Failure to exercise reasonable care (“breach”)
 For the jury to decide
 Based on “foreseeable likelihood”
 (3) Factual cause
 (4) Harm within the “scope of liability” (replaces proximate cause)
 Dependent on the extent of risk that a person takes, such that it inquires whether
the risk is within the expected legal norms
 The higher the risk of harm, the higher the defendant’s liability

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  In order to identify risk, need to analyze the specific type of injury that might
be a result of the breach and a specific class of potential victims who might
suffer because of the breach
 Trier of fact has to find that the harm suffered by the plaintiff was within
what a reasonable person would have foreseen to be a risk that the defendant
created
 Considerations for scope of liability include
 (1) Actor’s negligence
 (2) Event was extraordinary
 (3) Acting independently
 (4) Operation of intervening force is due to third person act
 (5) Degree of culpability
 (5) Physical harm (“harm”)
F. Combining Approaches – courts sometimes combine these tests
G. Intervening and Superseding Factors
 Intervening act: when a third party’s conduct comes after the defendant’s action in a
chain of events leading to the plaintiff’s injury
 Many courts ask if the intervening act was objectively foreseeable.
 Superseding cause: when the intervening act prevents the defendant from being liable
 Superseding causes do not act in concert with the defendant, not one of “sufficient
multiple causes”
 Relieves liability on defendant when it plays a substantial role (Weems)
 The question is of the nature of the risks that were likely foreseeable from the
negligent act, if they were, it’s intervening, if they weren’t it is superseding
 Medical malpractice is foreseeable, therefore it is not superseding.
 An intervening act is not superseding if:
 (1) it is a normal response to the negligent act that is reasonably foreseeable and was
a substantial factor
 (2) could have been reasonably anticipated
 (3) intervening conduct was/could have been reasonably anticipated and risk was
unreasonable
 An intervening criminal act does not automatically break the chain of causation if a
reasonable person could reasonably foresee the criminal’s negligent conduct
(McClenahan v. Cooley)
 Factors to consider on whether leaving keys in the ignition of a running car is
negligent:
 (1) Locality
 (2) Access to vehicle
 (3) Condition of the vehicle
 (4) Proximity of surveillance
 (5) Length of time
 The 3d Restatement’s general rule is that an individual is not liable for leaving keys
in his running car because he doesn’t have a duty to the whole world
 If a defendant was both the cause-in-fact and proximate cause of the plaintiff’s injury, the
defendant will be liable for his proportionate share of the damages, notwithstanding other
acts of negligence that also may have contributed to the plaintiff’s injury

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DEFENSES
INTRODUCTION
A. Introduction
 Negligent conduct by plaintiff can bar recovery
PLAINTIFF’S CONTRIBUTORY FAULT
A. Traditional Common Law Treatment
 Contributory negligence: the failure to use proper care for one’s own safety
 Traditionally, plaintiff’s negligence would be a total bar from recovery.
 The burden of proof to show plaintiff’s negligence is on the defendant, because it is used
as a defense.
B. Modern Comparative Treatment of Plaintiff’s Negligence
 Comparative negligence weighs the fault of the plaintiff against the fault of the defendant
 Pure comparative negligence: the amount owed by defendant is reduced by percentage
of plaintiff’s negligence
 For example: If damages were $100 and plaintiff was 17% negligent, defendant will
only need to pay $83 now.
 Modified comparative negligence: defendant is responsible for plaintiff’s injury if
plaintiff’s negligence is less than or equal to defendant’s negligence (depends on the
jurisdiction)
 49% rule: defendant is responsible for plaintiff’s injury if plaintiff’s negligence is
less than defendant’s negligence
 50% rule: defendant is responsible for plaintiff’s injury if plaintiff’s negligence is
less than or equal to defendant’s negligence
 Comparative negligence does not include:
 (1) plaintiff’s justifiable acts (sports games, self-defense)
 (2) irrelevant acts (juggling knives in front of a wall that falls on you)
 When evaluating comparative negligence, a court may look at the cost or burden to a
party for eliminating the danger and each party’s capacity to avoid harm through the
Learned Hand approach
 If the burden of taking precaution is less than the probability of injury and the
magnitude of the loss, then the defendant is liable
 Chart looking at different assessments of negligence
Jury Assessment of California Pure Vermont 50% Maine 49%
Responsibility Form Modified Modified
Defendant Plaintiff Defendant Plaintiff Defendant Plaintiff Defendant Plaintiff
75 25 75 25 75 25 75 25
51 49 51 49 51 49 51 49
50 50 50 50 50 50 0 100
49 51 49 51 0 100 0 100
25 75 25 75 0 100 0 100
 Unit Rule: defendants’ aggregate negligence is compared to plaintiff’s negligence
 Wisconsin Rule: each defendant’s negligence is compared to plaintiff’s negligence
 The more defendants that there are, the harder it would be for plaintiff to recover
C. Reckless Conduct
 In a contributory negligence jurisdiction, a plaintiff can get recovery even if he is
ordinarily negligent as long as the defendant is extremely negligent/reckless.
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  Unless the plaintiff is reckless too
 Last clear chance doctrine allows a negligent plaintiff to recover if injured in
circumstances where defendant’s failure to act was especially egregious. This applies
when:
 (1) there is an unavoidable danger
 (2) the plaintiff cannot escape from the danger
 (3) the defendant knows and can prevent danger but fails to act reasonably
 Occurs when plaintiff and defendant are responsible for the action in which
harm occurred and considers which party had the last opportunity to avoid the
harm that was caused
 Plaintiff can collect damages if can show that defendant had a last clear chance to
avoid the harm
ASSUMPTION OF RISK
A. Express Assumption of Risk
 Almost always involves a written release
 Express assumptions of risk can be invalidated due to public policy reasons. These
factors include:
 (1) public regulation
 (2) a great public importance
 (3) governed by public standards
 (4) economic position superior
 (5) adhesion contract (one that you have to sign)
 (6) subjects buyer to risk of carelessness
 Example of express release contrary to public policy: criminal enforcement
 Express releases are upheld only when they clearly state the extent in which the party
is absolved from liability. Even if you have express release, it does not absolve the
defendant who failed to meet basic, safety guidelines.
 Typically when an express release in a contract is misleading, involuntary or
unconscionable
B. Implied Assumption of Risk
 Primary implied assumption of risk: court concludes or a statute states that the
defendant had no duty to the plaintiff or hasn’t breached a duty to the plaintiff
 Plaintiff agreed to participate in an activity where others owed him a duty lower
than the ordinary standard of reasonable care under the circumstances
 Individuals performing an activity owe a lower duty of avoiding reckless conduct
 Reduced duty, hence no breach
 Secondary (implied) assumption of risk: plaintiff knew and appreciated the risk of
defendant’s wrongdoing
 Subjective inquiry
 In a contributory negligent state, this would be a total bar for recovery
 Requires:
 (1) actual knowledge
 (2) actual appreciation of the danger
 A plaintiff is not barred from recovery by the doctrine of assumption of risk unless the
degree of fault origin therefrom is greater than the negligence of the defendant
 What is the difference between assumption of risk and contributory negligence?

14
  Assumption of risk requires a subjective inquiry, while contributory negligence
requires an objective inquiry that the plaintiff should’ve known better
MITIGATION AND AVOIDABLE CONSEQUENCES
A. Mitigation and Avoidable Consequences
 Mitigation of damages has to do with what a plaintiff does after the accident, while
comparative negligence deals with what happened before an accident
 Comparative negligence/comparative fault is decided by the jury.
 Mitigation of damages can contribute plaintiff getting less in proportion for their fault to
do what’s reasonable after an accident
 What could be reasonable mitigation of damages?
 Proper medical car or surgical aid
 Majority view on non-use of seatbelts:
 (1) Plaintiff’s non-use of seatbelts is not a matter or duty and cannot be used to
mitigate defendant’s negligence
 (2) Comparative negligence for fault can be evaluated and apportioned comparatively
 Minority view on non-use of seatbelts: can be used in mitigation of damages analysis
IMMUNITIES
A. Sovereign Immunities
 The U.S. government can be liable for negligence in the same way a private individual
would be. The statute for permitting suits for wrongful acts of the government is 28
U.S.C. §1346(b)(1). Sovereign immunity statutes,
 (1) govern that litigation is limited to federal trial court jurisdiction
 (2) specify that law of the location where the act/omission occurred shall apply
 (3) provide limitations
 Strict liability is a limitation
 Sovereign immunity applies when there is a discretionary function. This means
that the government cannot be held liable for negligence. This is provided by the
Berkovitz v. Gaubert test:
 (1) the act must be discretionary in the sense that it is not obligated by statute
or regulation AND
 (2) involves public policy or policy analysis
 The Federal Tort Claims cases are tried by judges not by juries
 A plaintiff’s success is based on proof of negligence during the course of
government employment
 If the government shows a defense under this, plaintiff then must show burden to
prove the government is not immune
 Government entities that are serving complex governmental functions, as opposed to
proprietary ones are immune
 Proprietary acts are those that could just as easily be undertaken by a private party
B. Intrafamilial Immunity
 Common lawsuits traditionally prevented one family member against another.
 South Carolina rejects interspousal immunity because it is against public policy.
 Parental immunity is limited to conduct that constitutes the exercise of parental
authority, the performance of parental supervision, and the provision of parental
care and custody
 Immunity exists within:

15
  Wisconsin: ordinary parental authority and/or discretion
 Arizona: within the family sphere
 Kentucky: provisions of care and necessity
 Michigan and Minnesota: substitute “reasonable parental discretion” and
“ordinary parental discretion”
 New York: ordinary responsibility
STATUTES OF LIMITATION AND REPOSE
A. Statutes of Limitation and Repose
 Statute of limitations: time-limit based on claim accrual, max time-period an injured
party can sue. Time accrues when the injury occurs.
 Discovery rule: suspends the statute of limitations until when plaintiff was
reasonably likely to learn about the claim he could bring up
 Fraudulent concealment tolls the statute of limitations because we don’t want the
defendant to benefit from their own fraud
 Two conditions:
 (1) the defendant knew of the alleged wrongful act and concealed it from
the plaintiff or had material information pertinent to his discovery which he
failed to disclose
 (2) the plaintiff did not know, or could not have known through the exercise
of reasonable diligence, of his cause of action within the statutory period
 Statute of repose: begins to toll from the defendant’s action, but sometimes before the
injury occurred
 Bars claims even if the statute of limitations wouldn’t bar the claim
 E.g., construction company makes chimney, nobody uses it, statute of repose ends,
and somebody uses it, statute of repose prohibits that person from suing construction
company for negligence
APPORTIONMENT OF DAMAGES
INTRODUCTION
A. Introduction
 Modern tort law allocated responsibility proportionally and shared
 Apportionment cases talk about multiple parties, causes of harm, and how much each
party is responsible for
APPORTIONING DAMAGES AMONG LIABLE DEFENDANTS
A. Joint and Several Liability
 Joint and several liability: treats each defendant as responsible for the entire
judgement awarded to the plaintiff
 For when the damages cannot be separated
 Plaintiffs are entitled to recover any portion of liability that they want from any of
the defendants regardless of the degree of fault
 One defendant can be liable for the entirety of damages and then can sue the
other defendant to see how much each actually has to contribute
 When D1 sues D2, there should be an actual division of damages based on
fault. D1 is going to sue for the actual percent of several liability.
 Joint and several liability is proper when there are:
 (1) several concurrent negligent causes
 (2) when it is impossible to separate the individual harm caused by defendants
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  (3) due to independent authors (not in concert)
 (4) when each defendant’s action was sufficient for the entire harm
B. Several Liability
 Several liability: if the damage can be separated, each defendant would only be liable
for the damage he caused
 Allocation is by percent of fault for each defendant
 The burden is on the defendant to apportion the fault
 When the damages are divisible
 Apportioning the harm versus apportion the damages/liability
 Apportioning the harm: how much action defendant did to the plaintiff
 Apportioning the damages/liability: how much damages each defendant is legally
liable for
C. Allocating Responsibility to Absent or Immune Actors
 Even if there is an immune party, the jury can apportion the damages of their fault
 Effect: the plaintiff will recover less
 For states that have abandoned joint and several liability
 However, sometimes, so plaintiffs could recover, apportionment of fault is increased
with not immune defendants
 Fault can be allocated amongst:
 Plaintiff
 Defendant
 Parties immune from the suit
D. Intentional Conduct in a Comparative Setting
 A plaintiff’s harm is caused by one actor’s negligence and another actor’s intentional tort
 Allocation between the negligent tortfeasor and the intentional tortfeasor can be
compared to apportion damages
E. Allocating the Risk of Insolvency
 To prevent the risk of insolvency resting on plaintiffs, a few states use relocation rules
that spread the insolvent defendant’s share either among the solvent defendants or among
the plaintiff and any insolvent defendant
VICARIOUS LIABILITY
A. Respondeat Superior
 Vicarious liability: a party is responsible for another’s fault
 Can have vicarious liability between two partners
 Respondeat superior: private employers are joint and severally liable for the actions
of their employees within the scope of employment
 Type of vicarious liability, it’s a strict liability
 Under respondeat superior, there are two separate causes of action:
 Employee’s tortious act, makes the employer vicariously liable
 Employer’s negligent supervision of the employee
 Responsibility for hiring him or not supervising him appropriately
 MY OPINION: the liability is vicarious, but the apportionment of damages is joint
and severally liable
 Even if there is express permission, it isn’t within the scope of employment
 Four theories under respondeat superior:

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  (1) Deep pocket theory: ensures that the plaintiff can sue someone who is likely to
have assets or insurance, the most commonly cited justification
 (2) Risk-spreading theory: the employer is better situated for than either the
employee or the plaintiff to cover the loss by reimbursing itself through higher
prices to its customers or by accumulating reserves in advance of an accident
 (3) Enterprise risk theory: even though an employer was not at fault for the way in
which it engaged in a particular activity, the activity ought, nevertheless, pay its
own way by paying for the risks it creates
 (4) Avoidance theory: if an employer is required to pay for the tortious acts of its
employees, it will have an incentive to discover ways to minimize those acts and
thereby minimize harm
 “Going and coming” rule: an employer is not ordinarily liable under respondeat
superior for an employee’s negligence while commuting
 Typically, not under respondeat superior
 “Special errand” exception: an employer can be responsible if an employee is
performing a special errand that is (a) part of the employer’s usual duties, or (b) for
specific instruction, or (c) a “detour”
 “Detour:” stopping to grab lunch while travelling on the job
 Factors to be considered for whether a special errand was abandoned:
 (1) intent of the employee
 (2) the nature, time, and place of the employee’s conduct
 (3) the work the employee was hired to do
 (4) the incidental acts the employer should have reasonably expected the
employee to do
 (5) the amount of freedom allowed by the employer to the employee in
performing his duties
 More freedom, probably not as much a special errand
 (6) the amount of time consumed in the personal activity
 A “frolic” is when an employee is doing something for themselves that is not job
related. It is not part of the scope of employment.
 Typically, an independent contractor does not make an employer responsible under
respondeat superior. Factors to consider about whether an individual is an independent
contractor:
 (1) the extent of control exercised by the master over details of the work and degree
of supervision
 (2) the distinct nature of the worker’s business
 (3) specialization or skilled occupation
 A skilled occupation is less likely to be an independent contractor
 (4) materials and place of work
 (5) duration of employment
 (6) method of payment
 (7) relationship of work done to the regular business or the employer
 (8) belief of the parties
 An exception to the rule precluding vicarious liability for the acts of independent
contractors applies to situations where an independent contractor is hired for an
inherently dangerous task

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B. Vicarious Liability
 In order for a vehicle’s owner to be liable, the use and operation of a vehicle must be the
proximate cause of the injury.
 Think: was there a substantial nexus between the action of the owner and the injury
and use of the vehicle?
 Gholson test:
 (1) accident must have arisen out of inherent nature of the automobile
 (2) accident must have arisen within the natural territorial limits of an
automobile
 (3) the automobile must not have merely contributed to the cause and the
condition but itself must produce or be a proximate cause of the injury
 When a person buys insurance, he or she expects to be protected against liability;
foreseeability within insurance contract
DUTY: PROFESSIONALS
INTRODUCTION
A. Introduction
 These cases deal with the duty and breach standards within the context of people with
specialized knowledge
 We use these standards of care rather the reasonable person standard because a jury is
likely to lack information about how various activities “should be performed”
PROFESSIONAL STANDARD’S BASIC DEFINITON
A. Professional Standard’s Basic Definition
 What is a professional standard of care?
 Used when the professions are designed to serve the public
 The professions that are serving the public are ones that use more demanding
standards for themselves
 Designed to serve the public means:
 (1) Professional obligations that prevent the profession from setting low standards
 (2) Group is insulated from commercial or profit motives
 (3) Working relationships seeking client welfare
 It is a jury’s role to determine what a professional standard of care is, and whether the
professional standard of care applied to the case
 To assist with the jury’s rule in determining what the professional standard of care is,
expert testimony for professional standards of care are used
 Ordinarily, custom does not govern negligence cases; however, when it comes to
professional standards, experts can testify as to the nature of what the professional
standard is
 What experts can establish:
 (1) appropriate standards
 (2) deviation from the standard
 (3) proximate cause between the doctor’s omission and the injury the individual
suffered
 An example of a professional standard of care: holding a doctor to a standard of care
and skill that represent the practice of physicians who keep abreast of medical
knowledge
 Different than the regular standard of care

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  Three factors courts look at for professional standards:
 (1) Professional obligations
 (2) Profession should be insulated for commercial and profit motives
 (3) They have a professional relationship with the client
APPLYING THE PROFESSIONAL STANDARD IN MEDICAL CARE
A. Geographic Scope of Professional Standards
 Three different standards of care in the medical field:
 Strict locality: compared to physician’s community’s standards
 Difficult to determine what a community’s standards are
 Courts have abandoned the locality rule for specialists
 Modified locality: compared to the locality of a more general/broader region
 National standard: compared to medical professionals across the United States
 For both specialists and generalists
 Medical malpractice is foreseeable!
B. Informed Consent
 Informed consent: where a physician has to provide a patient of the risks of a
particular procedure
 The question to know is whether a reasonable person would consent with the
appropriate information
 Even though a practitioner may be negligent by not giving informed consent, the
actual medical procedure may not have been performed negligently
 Exceptions to informed consent: no duty to disclose common knowledge, no duty to
make a disclosure to a patient who lacks capacity to understand the information
(however must disclose a a guardian), no duty to disclose in cases of emergency
 Professional standard versus prudent patient standard
 Professional standard: a physician only needs to disclose the amount of
information that is standard for the medical community
 Arguments for use of professional standard: physician is in the best decision
to decide, it is inefficient to detail everything
 Prudent patient standard: a physician needs to disclose information that a
reasonable patient would want to know to consent to the procedure
 Elements include:
 Proximate cause: whether or not patient would have underwent the
procedure with the information
 Objective standard
 Before patient agrees to work
 Reasonable amount of information that a prudent patient would want to
know
 To recover damages on an informed consent theory, plaintiff must show defendant
provided less information than the jurisdiction’s standards require and that the
plaintiff would’ve declined to undergo the surgery if provided with sufficient
information. The key pointers for suit include:
 (1) Non-disclosure of material facts
 (2) Damages/injury
 (3) Patient was put at risk because of the withholding of the information

20
  (4) Factual cause for jury to decide proximate cause is whether the patient would
have rejected the treatment if aware of the risk
 (5) Reasonable person would reject proposed treatment
C. Identifying the Defendant
 When a plaintiff receives unusual injuries while unconscious and in the course of medical
treatment, all the defendants who had control over his body or the instrumentalities which
could have caused the injuries may be called upon to meet the inference of negligence
under res ipsa loquitur
 Res ipsa loquitur allows the suit of multiple defendants
LEGAL MALPRACTICE
A. Legal Malpractice
 Standard of care for legal malpractice: care, skill, and diligence that an attorney with
knowledge “commonly possessed and exercised by a prudent attorney in the state”
 Elements of an employment malpractice claim:
 (1) Employment of attorney/basis for duty
 (2) Failure of attorney to act as well as standard requires
 (3) Causal connection between negligence and damages
 An attorney has a duty of confidentiality and limited loyalty to former clients
 Loyalty is defined by if the new job will injure the former client in any matter the
attorney formerly represented the client in, or if the new job will require
knowledge from the former relationship
 In Bevan, summary judgment was granted based on
 (1) attorney-client relationship ended prior to new representation, no duty to the
client
 (2) no evidence of damage of legal injury
 A plaintiff will prevail on a legal malpractice claim if he shows that he would have
obtained a better result had the attorney exercised adequate skill and care
 Trial within a trial: method of establishing causation between attorney’s action and
adverse action with client
 Jury decides causality in a trial within a trial
DUTY: OWNERS AND OCCUPIERS OF LAND
INTRODUCTION
A. Introduction
 Individuals on land were traditionally categorized as trespassers, licensees or invitees
TRADITIONAL RULES
A. Trespassers
 To analyze the liability of a land possessor, a lawyer must determine the status of the
plaintiff and then must identify the nature of the obligation to that person
 Trespass: the intentional entry onto land of another by a body or by some other
object that has no privilege, and remaining there exceeds the owner’s possession of the
land (position can change at a certain part of the house)
 Two categories of trespassers and their standards of care:
 Mere trespassers: individuals that happen to just be on the land
 Standard of care: land possessor cannot be reckless, wanton, and willful to
the trespasser

21
  Wanton: conscious disregard of dangerous conditions or knowledge of
dangerous conditions on the land
 Criminal trespassers: individuals that enter onto the land to commit a criminal at
 Standard of care: land possessor cannot intentionally cause harm to the
trespasser
 For child trespassers, a land possessor must always exercise reasonable care to
prevent trespassing children from being injured by dangerous artificial conditions on
the land if trespassing is foreseeable and if children would not likely be able to appreciate
the danger for themselves.
 Attractive Nuisance Doctrine: allows a child trespasser to recover, and an exception
to the usual treatment of trespassers.
 Elements:
 (1) child was attracted onto the land by artificial conditions
 (2) landowner had failed to use reasonable care
 Requires that a landowner knew or had reason to know the risks
 A child cannot appreciate the risk of a land’s artificial factor at the time of the
accident
 When a landowner discovers a trespasser on his property:
 Landowner has a reasonable duty of care to protect trespasser from artificial
conditions on his land
 Landowner has a higher duty of care when engaged in active conduct than just
passive conduct
 Lawn mowing, cannot direct lawn mower to trespasser
B. Licensees and Invitees
 Classification between the two is determinative
 Invitee: enters with owner’s knowledge and for mutual benefit
 Standard of care: landowner must use a standard of ordinary care, meaning that if
the landowner knows a condition is dangerous, owner will take reasonable care for
the invitee to not get hurt.
 A standard of ordinary care is inquired by reasonableness
 Licensee: person privileged to enter or remain on land and remains at discretion of the
owner
 Standard of care: landowner must not injure the individual through willful, wanton,
or grossly negligent conduct
 Social guests are an example of licensees
C. Special Rules for Particular Hazards to Legal Elements
 “Slip and fall cases” require the plaintiff to show that the defendant knew or should have
discovered the condition through reasonable inspection
 Shifts burden on the defendant to show that they were reasonable under these
conditions
 Constructive notice: plaintiff can show this which will treat defendant as if he had
actual knowledge of a hazardous condition if there is enough proof supporting that the
condition was present for a significant amount of time prior to injury
 Mode of operation: treats defendants as having actual notice if defendant has chosen to
operate an enterprise in a way that makes it likely something dangerous will occur
 Courts look at: style and operation of business

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 Ordinarily, a landowner doesn’t have to protect against danger for their trespassers
 UNLESS the danger is reasonably foreseeable. There are two tests to determine
foreseeability:
 Totality of the circumstances test (broader test): looks at foreseeability through
 (1) the type of place
 (2) the character of the business
 Prior similar incident test (narrower test): looks at foreseeability through
 (1) past crime on premises
 Crime has to be the same crime committed
 (2) frequency
 If the danger is reasonably foreseeable, the defendant has to exercise reasonable
care to anticipate criminal or careless activity
 … by providing reasonable security
 Bothersome or annoying actions unaccompanied by assaultive or abusive conduct are too
common an occurrence to alert a property owner that a person will commit a violent act.
D. Lessor’s Liability to Tenants and their Guests
 Traditional rule: the lessor is typically not responsible for injuries sustained by tenant
or their guests because the lessor surrenders the possession and control of the land to
the lessee
 Exceptions to the traditional rule:
 (1) undisclosed dangerous conditions known to lessor and unknown to lessee
 (2) conditions dangerous to persons outside the premises
 (3) premises leased for admission to the public
 (4) parts of land retained in lessor’s control which lessee is entitled to use
 (5) where lessor contracts to repair
 (6) negligence by lessor in making repairs
MODERN APPROACHES
A. Rejection to the Three Category System
 Some states have abandoned the traditional approach of designating a licensee and invitee
 Rationale: too complex, too confusing, unpredictable state of law
 Modern approach’s two categories:
 Lawful entrants
 Standard of care: reasonable care
 The reasonable care to all lawful entrants means that a landowner should
anticipate the harm despite any knowledge or obviousness.
 Open and obvious is a consideration but won’t preclude liability
 Trespassers
 Standard of care: lesser duty
 Flagrant trespasser: one who comes on the land to act in a criminal way
B. Changes for the Landlord-Tenant Doctrine
 Some jurisdictions have eliminated the traditional landlord immunity and replaced it with
a general duty of reasonable care that landlords owe their tenants
DUTY: SPECIAL DUTY RULES
INTRODUCTION
A. Introduction

23
  This section discusses special duty rules which go under duty analysis for a negligence
claim
 Whether there is a duty is a matter for the court, whether there was a breach is a matter
for the jury
DUTY TO RESCUE TO PROTECT
A. General No-Duty-To-Rescue Rule and Its Exceptions
 There is no general duty to rescue in the United States. Therefore, the bystander rule
states bystanders need not render aid even if they have the ability.
 Exception to bystander rule: must render aid if there is a special relationship
between the victim and person rendering aid, unless it makes the victim worse-off
 Special relationship can be familial, contractual, or statutory
 Physicians, common carriers
 Another exception: when the defendant has put the plaintiff in peril in the first place
or is otherwise the cause of the situation, then he has a duty.
 Good Samaritan Statutes: a bystander that renders “good faith care” in emergency
situations and not be held liable for what happens to victim
 These statutes encourage individuals to offer assistance and all states have
adopted them.
 Aspects of Good Samaritan statutes include:
 (1) Establishes class (classification of people who are covered)
 (2) Creates a zone of protection for who is rendering aid in an emergency of site
of accident
 (3) Gratuitous act
 (4) Good faith is a subject and objective limitation
 (5) Protects against negligence suits but does not protect against willful and
wanton acts
 Overrides the common law rule and superseded the Restatement of Torts rule that a
person rendering aid needs to use reasonable care.
 Under New Jersey common law, a casino is a place of public accommodation and is
obligated to provide first aid.
B. Obligations to Rescuers
 Rescue doctrine: facilitates recovery by a rescuer against a defendant whose conduct
created the need for rescue. A rescuer doesn’t need to show proximate causation,
just factual causation.
 To achieve rescuer status:
 (1) Defendant was negligent to person rescued
 (2) Peril was imminent
 (3) Reasonable person would have recognized the peril
 (4) Rescuer acted with reasonable care
 A rescuer who acts recklessly and rashly is not protected by the rescue
doctrine
 The doctrine recognizes the foreseeability of rescue and eliminates presumption of
“assumed risk”
 If the person being rescued is the same person who was negligent, the rescue doctrine
still applies because of social interests that encourage rescue.
 Applies to product liability actions

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 Firefighter Rule: a public service officer cannot recover from the negligent
individual that needed his presence in the first place
 Rationale:
 (1) Public service officer is already paid for his work, therefore, liability would
double compensation.
 (2) Avoids flood of litigation
 Does not apply with off-duty officers or volunteers
C. Protecting Third Parties From Criminal Attacks or Disease
 A mental health care professional owes a duty to warn a third party of threats of harm
against the third party when there is a specific, immediate threat of serious bodily
injury to a specifically identified or readily identifiable victim which has been
communicated to the professional.
 Physicians have an obligation to third parties generally to inform, but especially to
family members, if there’s a risk that they would be exposed to contagious disease.
 Needs to be a degree of certainty that the plaintiff will be affected from the disease
 There must be proximate cause that the physician’s failure to warn created the harm
that was suffered
DUTY LIMITED TO TYPE OF HARM
A. Negligently Inflicted Emotional Distress
 Impact rule: in order to recover for infliction of emotional distress, there must be a
physical injury and physical manifestations of emotional harm
 The physical manifestations do not need to be actually connected to the physical harm
 Justification for the rule: fright is subjective
 Zone of danger rule: recovery for proximately caused fright may be recovered if one is
in the immediate zone of physical risk. No actual physical injury is required.
 If physical manifestations of fright are needed depends on the jurisdiction.
 Bystander recovery: if a bystander sees a disturbing event, he can recover even if he’s
not in the zone of danger and absent physical manifestations
 Three guidelines:
 (1) Must be in close proximity to the scene
 (2) Must experience sensory and contemporaneous observance of the event
 (3) Must have a familial or intimate relationship to victim who experienced
serious bodily injury or harm
 The relationship must have a significant attachment so that it is foreseeable
that plaintiff would be upset to see victim like this
 Finding out about somebody on the telephone is not enough
B. “Mere Economic” Harm
 Typically, a plaintiff cannot recover from economic loss unless it is coupled with a
physical injury because cases solely based on economic harm are beyond the duty
that is owed to defendant
 Outlier case: recovery is allowed if it is a foreseeable injury caused by negligence and if
liability can be fairly limited.
 To analyze foreseeability, courts will look at (1) types of persons or entities in the
class, (2) the certainty and the predictability of their presence of the economic harm,
(3) a proximate number of the class, and (4) economic expectations.
C. Wrongful Pregnancy, Birth, and Life

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  Wrongful pregnancy: occurrence of conception is the harm, failed sterilization
 Wrongful birth: parents claim they would’ve aborted the pregnancy if they had
received accurate genetic or diagnostic information
 A mother may maintain a medical malpractice action under Nevada law based on her
physician’s failure properly to perform or interpret prenatal examinations when the
failure results in the mother losing the opportunity to abort a severely deformed fetus.
 Wrongful life: child born with these circumstances brings this claim, deformed
 Nevada court rejected the wrongful life claim because it could not weigh being born
versus life
DAMAGES
INTRODUCTION
A. Introduction
 In general, there are compensatory, punitive and nominal damages
COMPENSATORY DAMAGES
A. Introduction and General Damages
 There are three types of compensatory damages
 General damages: consequences of an injury that are real but cannot be evaluated in
terms of typical monetary transactions. These types of damages were aggravated by
the accident.
 Injury to reputation
 Disfigurement
 Pain and suffering: an effort to compensate the plaintiff for the physical agony
of the injury and the pain associated with any medical treatments, as well as for
the emotional consequences that flow from the injury
 Can be looked at objectively and subjectively
 For subjective inquiries: an expert has to fill in as to the duration or
severity of the damage
 Past and future medical expenses (specific damage)
 A plaintiff must prove medical expense damages by a preponderance of the
evidence.
 Past and future wages (specific damage)
 Both future medical expenses and lost wages are generally discounted to present value
 Damages are reviewed by a reasonable trier of fact, i.e., the jury.
 Per diem argument: counsel suggests unit of time and dollar value for each unit in
damages
 Per diem arguments are allowed for the purpose of suggesting the calculation of
damages; however, the method set out in the argument doesn’t need to be followed.
They are merely suggestive and not determinative.
 Hedonic damages: loss of enjoyment of one’s life’s pleasures
 A plaintiff cannot submit her own way of calculating hedonic damages by either an
expert witness or benchmark figures. A jury needs to determine hedonic damages.
 Punitive damages that are grossly excessive to compensatory damages violate the Due
Process Clause of the Fourteenth Amendment. They are not fair.
 Guideline offered by Supreme Court that punitive damages should not exceed a
“single digit multiple” of compensatory damages, and in most case should be no more
than two or three times more than compensatory award.

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  Factors of punitive damages to evaluate fairness based on the Fourteenth Amendment
 (1) rehensibility of the defendant’s misconduct
 (2) disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award
 (3) comparison between punitive damages and civil penalties
 Additur and Remittur
 Additur: the judge increases the amount awarded by the jury
 Allowed some states but not federal courts
 Remittur: the judge decreases the amount awarded by the jury
 Allowed in all courts
 Wrongful death actions versus survival actions
 This is a wrongful death/survival action
 Wrongful death actions: action that arises out of time of death
 Two principal items for recovery:
 Loss of support
 Recovery for a variety of emotional consequences of the death such as sorrow
and sadness, along with compensation for the loss of companionship or
guidance (previously under loss of consortium)
 Survival actions: arises out of the negligence and what would have been available
to decedent if they had survived
 A survival statute allows the estate to recover any damages that the victim could
have recovered after the moment of injury up to the time of death
 Loss of consortium can be recovered by spouses or minor/adult children of the
decedent for the harm.
 Three types of recovery:
 Loss of household services
 Loss of society/loss of companionship
 Loss of sexual intimacy during the period of the injured spouse’s illness and
recovery
 Compensation
 Say “seeking damages for loss of consortium”
STRICT LIABILITY
INTRODUCTION
A. Introduction
 Strict liability: liability without regard to actor’s fault.
 Arguments for imposing strict liability
 Reciprocal risk theory: reserved for those whose risks are imposed on others not in
same way
 Cost-avoider theory: one of the parties always has superior knowledge of the risks
presented by the conduct and how it may be avoided
INJURIES CAUSED BY ANIMALS
A. Injuries Caused by Animals
 Two classes of animals and their relationship with strict liability:
 Wild animals: strict liability applies
 Wild animal definition:

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  Restatement Third: not generally domesticated and likely to cause personal
injury unless restrained
 Restatement Second: being of service to man
 Domesticated animals:
 Majority: negligence applies, unless
 (1) owner had actual or constructive knowledge of an attack by the animal, or
 One bite
 (2) animal is abnormal and dangerous
 Animals that are trained to be attack dogs
 Minority: strict liability applies
 An animal owner can be strictly liable for:
 (1) Wild animals
 (2) Animals in the right place, where owner knew of their position
 (3) Animals in the wrong place, even without their prior knowledge
 Trespass where the owner would be held strictly liable
 The harm that needs to be an intrinsic action for the animal
 Example: Cannot be strict liable for a cat that is thrown in the air by somebody. The
cat needs to scratch or bite itself.
SELECTED DANGEROUS ACTIVITIES
A. Selected Dangerous Activity
 Strict liability can be applied for selected dangerous activities because the magnitude of
the harm is high enough under the circumstances to qualify as strict liability
 The person carrying on the activity will be liable, regardless of his safety precautions.
 An activity is abnormally dangerous if…
 (1) Must create a foreseeable risk of serious harm even when reasonable care is
exercised
 (2) The activity must be one which is uncommon in the place where it is being
conducted
 They are ultrahazardous and abnormally dangerous
 Dangerous activities are evaluated on a case-by-case basis. Factors that determine a
high risk activity include:
 (1) whether the activity involves a high degree of risk of harm to the person,
land or chattels of others
 (2) whether the gravity of harm which may result from it is likely to be great
 (3) whether the risk cannot be eliminated by the exercise of reasonable care
 (4) whether the activity is not a matter of common usage
 (5) whether the activity is inappropriate to the place where it is caried on
 (6) the value of activity to the community.
 These factors can be ambiguous, they are dependent on the situation!
 Strict liability and land
 Non-natural use of land: unusual undertaking that is extremely dangerous
 Liability attaches to the person engaged in the conduct
 For land strict liability applies when a landowner…
 Uses land in an extraordinary manner
 Conduct is fraught with peril to others
 One has to take absolute responsibility for the safety of neighbors

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  The jury will decide if the non-natural use of land is abnormally dangerous
TRESPASS: NECESSITY AND NUISANCE
PRIVILEGES: PRIVATE AND PUBLIC NECESSITY
A. Privileges: Private and Public Necessity
 Necessity: permit an individual confronted with a sudden emergency to engage in
certain acts that would otherwise be considered torts against property
 Two types
 Private necessity: necessary for a private individual, needing to avert a disaster
for himself
 Public necessity: necessary for the general welfare, needing to avert an imminent
public disaster
 Examples: stopping a fire by putting property in front of it, throwing cargo
overboard
 If defendant has prudent behavior in a case of necessity
 (1) compensatory damages are available but not,
 (2) punitive or nominal and
 (3) trespass action is unavailable
 Two schools of thought for trespass on land for a private necessity:
 It is an economic choice, therefore private individual should be held liable
 If not able to control the situation, should not be held liable
NUISANCE
A. Nuisance
 Nuisance: an unreasonable interference that bars the use and enjoyment of land.
 Factors to consider to determine a nuisance:
 Nature
 Extent
 Duration of the interference
 Suitability to a location
 Nature of the enjoyment that is invaded
 Whether D took all reasonable precautions against the interference
 Other relevant circumstances
 Two kinds of nuisance in negligence, reckless, and intentional tort cases:
 Private nuisance: interferes with a possessor’s use and enjoyment of her land,
protects possessor’s interest
 Remedy is available to a landowner
 Public nuisance: interferes with some sort of common right, protects the
public
 Remedy is the public as a whole
 Environmental damages, damage to waterway, public health
 Only people that can bring public nuisance claims are public officials unless
a private party has suffered some unique harm that is different form others
in the community
 Defense to nuisance
 “Coming to the nuisance:” plaintiff knew something was unpleasant and still
came to the land, cannot recover
 Absolute defense

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  An actor who sets in motion the forces that eventually lead to a tortious act may be liable
for the damages caused by the chain of events resulting from that nuisance
 Remedy for nuisance: injunction or compensatory damages based on party’s interests
and public policy
 It is hard to recover on a nuisance claim

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